Conflict of Laws

Introduction

A discrepancy between the laws of two or more jurisdictions has some bearing on a case, such that the outcome is determined by which jurisdictions law is applied to each subject in question. The contradictory legal rules could stem from federal law in the United States, state law in the United States, or international law. When competing laws emerge, the first question emerges: which law should be employed to resolve the case? To decide the law that will be applied in deciding a case, courts follow a specific procedure (Kay, 1). This is referred to as characterization or classification in legal terms. When deciding which law to apply in a conflict, courts typically have two options:

Lex fori: When a conflict of laws arises in a procedural matter, courts usually apply lex fori, or forum law.

Lex loci: When there is a conflict of laws involving a substantive topic, courts often apply lex loci, or the local law where the cause of action arose.

Conflict of laws is referred to as private international law by legal professionals and experts in civil law. Its used in cases where theres a foreign aspect to the case. The rules of federal courts differ from those of state courts; since the constitution limits the federal courts jurisdiction, this is the case. When competing statutes are, federal courts must follow a complicated series of standards to determine which one to apply (Stimson, 107-110). Therefore, the principles of conflict of laws are all the more important in the United States since several states have laws that differ from other states laws. The Supreme Court ruled in 1938 that the federal courts must follow the conflict of laws standards of the state where the issue is being heard. Some clauses of the United States Constitution restrict states ability to determine disputes in certain ways (Reese, 679-699). For case in point, article 4 (1) of the constitution mandates that each state accord full credit to the judicial actions of neighboring states. The Supreme Court has made it quite apparent that, under this constitutional provision, each state must regard the judgment of another state as valid and assist in its enforcement. The lone exception is that a state is not required to enforce the claims of another states penal law.

A. Determination of affiliation

Several factors influence the plaintiffs decision on where to file a case. The first is practicality. A plaintiff, for example, is more likely to sue in a jurisdiction that is somewhat close to his residence because witnesses and evidence may be more readily available there. Legal issues are also crucial. A plaintiff may be more likely to initiate a lawsuit in a jurisdiction that will provide him with procedural and other benefits. The defendant has the assets to satisfy a final verdict.

Domicile

Many of the parties rights and obligations, property classification, the legality and structuring of a will, the site of probate, and other planning concerns are determined by ascertaining a clients domicile. Domicile is a legal concept that describes a persons relationship with a specific location or country. While there is no universal definition of domicile, most common law countries need two factors to exist simultaneously: (1) physical presence in the jurisdiction and (2) the intent to remain indefinitely. Both federal and state legislation have formalized this common law notion in some way or another (Lawrence and Rizzo, 4). For example, in New York, a domicile is defined as a fixed, permanent, and primary residence to which an individual expects to return regardless of where they are temporarily residing.

Certain legal presumptions can assist in determining a persons domicile. The categories of domicile are domicile of origin, domicile by operation of law, and domicile of choice. The concept of domicile of origin is recognized by some common law jurisdictions. Domicile of origin is the legal address that each individual is given at birth, which is usually the father in the case of a legitimate kid and the mother in the case of an illegitimate child. Domicile can also be assigned by legislation (Kay, 3-9). A married woman, for example, was presumed to share the same residence as her husband under common law. However, in most common law jurisdictions, a husband and wife can have separate domiciles even if they are not living apart. The term domicile of choice refers to the third sort of residence (Lawrence and Rizzo, 4-5). A legally competent person can change their domicile by physically residing in a new jurisdiction and intending to stay there indefinitely.

Citizenry/Nationality

While domicile is the criterion utilized in common law jurisdictions to assess certain conflict of laws difficulties, nationality is also employed in other jurisdictions. In such jurisdictions, ones nationality may be determined based on political affiliation, parentage, birthplace, or naturalization. As a result, a person may be a national of one country yet a resident of another. Different governments may use different standards to determine an individuals nationality, as they do with domicile. As a result, two or more countries may claim an individual as a national. In addition, some jurisdictions, such as Switzerland, use a blended system of domicile and nationality. The domiciliary rule applies to foreigners living within the jurisdiction and citizens living abroad (Lawrence and Rizzo, 6). Although nationality does not play a substantial role in the conflict of laws analysis by U.S. courts, a global estate planner should be aware of this area of law.

Blackmer v. United States is probably the clearest example and leading case on judicial jurisdiction based on nationality. Blackmer was a United States citizen who lived in Paris. As requred by law, the American consul personally presented him with a subpoena to appear as a witness in a criminal trial in the District of Columbia (Moreland, 180). Due to his inability to appear, a major portion of his property in this nation was seized, and a 60,000-dollar contempt charge was assessed. In supporting the lower court, the Supreme Court declared, Neither can it be questioned that the United States retains the power inherent in sovereignty to force the return to this nation of a citizen, resident elsewhere, whenever the public interest requires it (Blackmer v. the United States, p.437).

In England, nationality is a legal ground of jurisdiction as determined in Douglas v. Forrest in 1828. The court founded its ruling partly because the absent individual held land in the jurisdiction. However, the general idea of the case was that a sovereign could...

…applicable rule would be determined by fulfilling specified technical requirements. For example, in contract situations, the law of the place of performance or conclusion of the contract controls; in tort cases, the commission of the wrong; and in succession, the deceaseds final domiciliary (Kebede and Kassim, 73). As a result, if the choice of law rule refers to foreign law and the forum has applied it correctly, the forum state is regarded to have served as a trial location. The assumption under such mechanical choice of law rules is that if another state whose laws the forum state judged acceptable had been allowed to hear the case, it would have used the same rule. In such cases, the forum state may rush to deny jurisdiction based on case congestion or a decrease in the parties litigation costs, and the like, even if the forum handling the case is unconcerned with the application of the proper statute.

The second is when the choice of law rule becomes forum-oriented. Unlike the mechanical method, the forum-oriented choice of law rule treats foreign laws as ancillary. It only plays a gap-filling function when the forum state is unconcerned about the result of the case, which is unlikely. Curries government analysis choice of law rules technique, which distinguishes between actual conflict, in which the forum state has the privilege of priority, and false conflict, in which the forum states interest is unaffected, is a good illustration of this (Kebede and Kassim, 74). In all cases where the forums relationship to the underlying transaction is an issue, such a choice of law rule would encourage a forum to establish jurisdiction without regard to other analytically significant relationships.

The third and final scenario is when applying foreign law poses a risk of misunderstanding. If courts accept jurisdiction over a dispute involving a legal matter not covered by the forum states domestic law, an arbitrary conclusion is likely. The concept of trust, for example, is unfamiliar to Civil Law judges (Kebede and Kassim, 74). Because the forum states judicial skill in such matters is ineffective in resolving the dispute, the forum state would rather deny jurisdiction than burden its judges with the possibility of erroneous interpretation of foreign laws.

Conclusion

What law should be applied to the matter at hand? is the question that anyone concerned with conflict of laws should ask. Through characterization or classification, the court selects which law to apply. This decision must be taken in conformity with the forums legal system. In a case involving diversity of citizenship, a federal court, for example, decides the issue of conflict of law as if it were the highest state court in which it sits. When a court is faced with a choice of law issue, it can either apply the law of the forum (lex fori), which is usually the result when the question of what law to apply is procedural, or the law of the transaction, or occurrence, which gave rise to the litigation (lex loci), which is usually the controlling law selected when the matter is substantive. Because federal jurisdiction is restricted to what is mentioned in the constitution, federal courts follow different rules than state courts. The rules governing which laws federal courts must…