Essay on "Conflicts in Gilbert Law Summaries"

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The biggest issue to resolve is whether the court has jurisdiction over the defendant—i.e., to bind the parties before it by its judgment. Jurisdiction refers to the power of the state to alter or establish legal relationships between persons disputing their own interests, etc.

The types of jurisdiction include: 1) In Personam Jurisdiction—where the court has the authority to determine the parties’ rights and duties and to bind them personally. 2) In Rem Jurisdiction—where the court has jurisdiction over a particular piece of property (“res”) located in the state; the court may determine the rights of the whole world in that property. 3) Quasi In Rem Jurisdiction—where the court has powers to determine the rights of particular persons in specific property within the court’s control. In Personam vs. In Rem focuses on the type of relief sought which determines the kind of action one is asserting–either right in a specific property (in rem or quasi in rem) or a general claim against the defendant (in personam) (Kay, 2004, p. iv).

Gilbert Law Summaries Book: Conflicts of Law Essay

Choice of law issues arise when a lawsuit is connected with multiple jurisdictions. The issue to be decided is whether the court will recognize foreign law (either another state or another nation’s laws) and if so to what extent. Renovi is a problem wherein the forum’s law guides the court to apply another state’s whole law while the foreign state’s conflict rules guide the court back to its own law or to a third state. Depecage occurs when the court resolves the choice-of-law question separately with respect to each issue raised in the case. Thus, different laws may be applied to different issues in the same case. Characterization refers to fitting factual situations into established legal categories. Various theories can be applied to guide the choice of law process—traditional “vested rights” theory, “most significant relationship” theory, “governmental interest analysis” theory, functional analysis, Lex fori—i.e., proper law in a proper forum, the principles of preference approach, and the “better law” approach.

The Choice of Law in substantive areas issue focuses on Torts, Contracts, Property, Corporations, Workers’ Compensation and Family Law. Each area has its own considerations. In… READ MORE