Bar Review: Conflict of Laws

Conflict of Laws is a different type of subject from all the others on the Bar Exam. All the other subjects have questions devoted to them. This subject does not. You will find no questions on the Bar Exam that are singularly Conflict of Laws questions.

Instead, they are embedded within other questions, and appear on the MEE (Multistate Essay Exam). Conflicts questions arise whenever you see a fact pattern that has a legal dispute or issue involving more than one sovereign. In the real world, Conflict of Laws issues can arise when there is contact between two countries, or between federal and state law. But on the Bar Exam it is typically contact between two states.

Conflicts questions can be present within any subject matter on the MEE. They most frequently pop up in Torts questions. So when you get a Torts question on the MEE, be sure to see if there is contact between two states. Conflicts issues are pretty easy to spot. All you need to see is a fact pattern with more than one state involved. The examiners will also provide you with the applicable statute or law from the second state. When you see this, you have a Conflict of Laws issue that you should deal with as you write your essay.

Multi-State contact + given judgement or law from 2nd state = Conflict of Laws issue

bar review conflict of laws, conflict
An important distinction to understand is that Conflict of Laws does NOT apply to questions where there are two laws in one state that appear to contradict one another. It only applies when there is litigation that involves two separate states. For example, in a Torts question the tort may have happened in State X, but the suit is filed in State Y.

Recognition and Enforcement of Foreign Judgements

The issue here is simple. We have 2 states in the fact pattern, State A and State B. Litigation in State B resulted in a judgement. One of the parties is seeking to have the judgement enforced in State A. Should State A enforce this judgement?

Terminology

  • Rendering State = The state where the litigation occurred and judgement was entered.
  • Recognizing State = The state that is called upon to recognize and enforce the judgement

There are two basic contexts within which this issue can arise.

  • P sues D in State A. State A renders judgement. D moves to State B. Now P is seeking to have State B recognize the judgement from State A, and enforce it on D.
    • So the question here is whether or not State B should recognize the judgement and enforce it against D.
  • P sues D in State A and loses. Judgement in State A is rendered against P. D moves to State B. Then P decides to “give it another go” and files suit in State B! Now D defends by trying to get State B to recognize and enforce the judgement of State A.

In both fact patterns above, the question is: Should State B recognize and enforce the judgement rendered in State A?

Full Faith and Credit Clause

bar review, conflict of laws, full faith and creditThe Constitution mandates that states should recognize and enforce each other’s judgements IF:

  • Full Faith and Credit requirements have been met; and
  • There are no valid defenses.

Ok, so let’s look at the requirements of the Full Faith and Credit bar review, conflict of laws, full faith and creditClause.

First, you must look to the rendering state and determine if they had valid personal and subject matter jurisdiction over the parties. To determine this you would use the jurisdictional laws of the rendering state.

Second, you must decide if the judgement was on the merits. The judgement must be one that was based on substantive issues, not simply procedural etc. However, there are two types of judgements that are considered on the merits even though they appear to be technical. That includes default and consent judgements.

Thirdly, look to determine if the judgement was a final judgement. If it was a modifiable judgement, such as future alimony and child support, then it is not a final judgement. Look for a fact pattern similar to this:

    X and Y get married in State A. Then they move and live in State B for 10 years. X files for divorce in State B, and is granted the divorce as well as $500/month in alimony and $500 a month in child support for their only child. Y moves to State A and refuses to pay any child support or alimony. Eventually, X also moves back to State A. Now, X is trying to get State A to enforce the judgement rendered in State B as to alimony and child support. What to do?!

      A: X can get a judgement in State A as to the child support and alimony from the date of judgement in State B until today. That is considered in arrears or back-pay. However, going forward, the court will recognize that child support and alimony are modifiable, and therefore not subject to full faith and credit. Therefore, State A may rehear the issue and render a different judgement if it sees fit.

That is the first prong of the Full Faith and Credit test. On to the second prong, which is the question of defenses. Are there any defenses to recognition and enforcement?

Most defenses do not work, however the examiners will expect you to discuss them if they are presented in the fact pattern. Be sure to look at:

  • Penal Judgements
  • Extrinsic Fraud
    • Bribery of a Judge is likely the only fraud issue you’ll see

Also discuss non-defenses if they appear in the question:

  • Tax Judgement
  • Any judgement against recognizing state’s public policy
  • Inconsistent Judgements
  • Mistake by Judge
  • Judgement rendered by a foreign country
    • Must pass the comity test

This brief overview of Conflict of Laws focused on one key issue that commonly arises on the MEE. There is more to this area of law, so be sure to consult your outline. Keep your eyes open for this issue on the essay portion of your exam. It can bring you valuable extra points if you don’t miss it!

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