Conflict of Laws MEE Prep
Conflict of Laws on the MEE tests your ability to determine which state's law applies when a dispute involves contacts with multiple jurisdictions. The exam covers choice of law methodologies, constitutional limitations on choice of law, and the recognition and enforcement of foreign judgments.
The most heavily tested area is choice of law analysis. You must know the traditional First Restatement approach (vested rights), the Second Restatement approach (most significant relationship), governmental interest analysis, and the better law approach. The examiners expect you to be able to apply each methodology and to recognize which approach a given state follows.
Full Faith and Credit Clause questions test when a state must recognize the judgments and laws of sister states. Personal jurisdiction issues also appear because they are closely related to whether a court may constitutionally apply its own law to a dispute with multistate contacts.
High-Yield Topics
| Topic | Frequency | Tips |
|---|---|---|
| Second Restatement (Most Significant Relationship) | Very High | Know the four factors from Section 6: needs of the interstate system, relevant policies of the forum and interested states, protection of justified expectations, and certainty/predictability/uniformity. For torts (Section 145), evaluate where the injury occurred, where the conduct occurred, domicile of the parties, and where the relationship is centered. For contracts (Section 188), evaluate the place of contracting, negotiation, performance, subject matter, and domicile. |
| First Restatement (Vested Rights / Traditional Approach) | High | Under the traditional approach, apply rigid rules: torts are governed by the law of the place of injury (lex loci delicti), contracts by the law of the place of making (for validity) or place of performance (for performance issues). This approach prioritizes certainty but can produce arbitrary results when the place of injury or contracting is fortuitous. |
| Governmental Interest Analysis | High | Determine each state's policy behind its rule and whether that policy would be advanced by applying its law. Classify the case as a true conflict (both states interested), false conflict (only one state interested — apply that state's law), or unprovided-for case (neither state interested — typically apply forum law). The examiners love false conflicts because students often miss them. |
| Full Faith and Credit Clause | High | A state must recognize a valid final judgment from a sister state. The judgment must have been rendered by a court with jurisdiction. Exceptions: the rendering court lacked personal or subject matter jurisdiction, the judgment is not final, or the judgment was obtained by fraud (in some jurisdictions). Full Faith and Credit does not apply to foreign country judgments, only sister-state judgments. |
| Constitutional Limitations on Choice of Law | Moderate-High | Under the Due Process Clause and Full Faith and Credit Clause, a state may apply its own law only if it has a significant contact or significant aggregation of contacts to the claims asserted, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair (Allstate v. Hague). This is a low bar but has been tested. |
| Domicile | Moderate | Domicile is the place where a person has a true, fixed, and permanent home with the intention of returning. A person can have only one domicile at a time. Physical presence plus intent to remain establishes domicile. Domicile is critical in conflict of laws because it determines which state has an interest in protecting its resident. |
| Choice of Law Clauses in Contracts | Moderate | Contractual choice of law clauses are generally enforceable if the chosen state has a substantial relationship to the parties or transaction, or there is another reasonable basis for the choice, and the chosen law is not contrary to a fundamental policy of the state whose law would otherwise apply. Under the UCC, parties can choose any reasonable state's law. |
Essay Approach
Conflict of Laws MEE essays typically present a multistate fact pattern and ask which state's law applies. Begin by identifying the nature of the claim (tort, contract, property, family law) because different choice of law rules apply to different claim types. Then determine which choice of law methodology the forum state follows.
Apply the methodology step by step. For the Second Restatement, list the connecting factors specific to the claim type and analyze each one. For governmental interest analysis, identify each state's policy and classify the conflict. Do not simply state the rule — the examiners award points for applying the factors to the specific facts. If the question does not specify which methodology to apply, discuss the most likely approaches and how they would lead to different or similar results.
Always address constitutional limitations. Even if the analysis is straightforward under the methodology, note whether the forum state has sufficient contacts to constitutionally apply its own law. If the question involves a judgment from another state, separately analyze Full Faith and Credit.
Commonly Tested Issues
Key Rules to Memorize
Second Restatement Section 6 Factors
The choice of law analysis considers: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability, and uniformity of result, and (g) ease in the determination and application of the law to be applied.
Lex Loci Delicti (First Restatement Torts)
Under the traditional approach, the substantive rights of the parties in a tort action are determined by the law of the place where the last act necessary to make the defendant liable occurred — typically the place of injury.
Lex Loci Contractus (First Restatement Contracts)
Under the traditional approach, the validity of a contract is determined by the law of the place where the contract was made. Matters of performance are governed by the law of the place of performance.
Governmental Interest Analysis Framework
Identify each state's policy behind its relevant rule. Determine whether each state has an interest in having its law applied. If only one state is interested (false conflict), apply that state's law. If both states are interested (true conflict), apply the law of the forum or the state with the greater interest.
Allstate v. Hague Constitutional Test
A state may constitutionally apply its own law if it has a significant contact or significant aggregation of contacts creating state interests, such that the choice of its law is neither arbitrary nor fundamentally unfair.
Full Faith and Credit for Judgments
Under Article IV, Section 1 of the Constitution, a state must give full faith and credit to the judicial proceedings of every other state, provided the rendering court had jurisdiction. The recognizing court generally may not re-examine the merits.
Domicile Determination
A person's domicile is established by physical presence in a state combined with the intent to make that state their home for the foreseeable future. Once established, domicile continues until a new domicile is acquired.
Substance vs. Procedure Distinction
The forum state applies its own procedural law regardless of which state's substantive law governs. Statutes of limitations are traditionally classified as procedural (forum law applies), though the modern trend treats them as substantive for choice of law purposes.
Renvoi
When the forum's choice of law rule points to another state's law, the question arises whether to apply that state's internal law or its whole law (including its choice of law rules). The Second Restatement generally rejects renvoi but recognizes exceptions.
Depecage
Different issues within a single case may be governed by the laws of different states. For example, the duty of care issue might be governed by one state's law while the damages cap is governed by another's. The Second Restatement expressly permits this issue-by-issue approach.
Common Mistakes
- Applying only one choice of law methodology without identifying which approach the forum state follows — the methodology matters and can change the result
- Confusing false conflicts with true conflicts — a false conflict exists when only one state has an interest in applying its law, and that state's law should apply regardless of other factors
- Forgetting the constitutional limitation — even under the most flexible methodology, the forum must have sufficient contacts to apply its own law
- Treating statutes of limitations as always procedural — the modern trend (adopted by many states) treats them as substantive for choice of law purposes
- Applying Full Faith and Credit to foreign country judgments — it only applies to sister-state judgments; foreign country judgments are recognized under comity principles
- Stating the Second Restatement factors without applying them to the specific facts of the problem
- Ignoring depecage — different issues within the same case may be governed by different states' laws
Study Tips
- Create a side-by-side chart comparing the First Restatement, Second Restatement, and governmental interest analysis for torts and contracts — this helps you see how the same facts lead to different results
- Practice classifying conflicts as true, false, or unprovided-for — this is the most commonly tested skill in governmental interest analysis
- Memorize the Second Restatement connecting factors for torts (Section 145) and contracts (Section 188) separately — they are different lists
- Review the constitutional limitations early so you can add a brief constitutional analysis to every essay — it is an easy way to pick up extra points
- Work through past MEE conflict of laws questions to practice spotting which methodology to apply based on the question's framing
- Remember that conflict of laws is often combined with other subjects — you may need to do a choice of law analysis before analyzing the substantive claim