Thursday, August 15, 2019

Interlocutory Appeals & Removal Jurisdiction

Interlocutory appeals can show up in a variety of contexts on the MBE.  A difficult issue to look out for is one that involves both interlocutory appeals and removal of a case from state court to federal court.

Imagine a situation in which federal jurisdiction is based entirely on a claim arising under federal law rather than on diversity of citizenship of the parties.  Further assume that a 2nd claim is added to the first that would not on its own have an independent jurisdictional basis but because it arises out of the same transaction or occurrence as the first claim it would be allowable in federal court under supplemental jurisdiction. The plaintiff brings the case in state court but the case is properly removed by the defendant to federal court. The federal court then dismisses the first claim (the federal claim) leaving only the 2nd claim (the claim that had no independent basis for federal jurisdiction). The federal court then remands the 2nd claim back to state court from which the case was removed. Plaintiff who now would prefer the case to remain in federal court appeals the decision to remand the case and defendant moves to dismiss the appeal for lack of appellate jurisdiction.

Plenty of interesting jurisdictional issues above but the purpose of this post is to focus on whether the plaintiff's appeal of the decision to remand the case back to state court is proper. If not, then the appellate court lacks jurisdiction to hear that appeal.  And the answer is that it depends.

Remand orders that are based on a defect in the removal procedure or a lack of federal jurisdiction are not appealable. Those claims never should have been in federal court. In contrast, if a district court chooses not to exercise supplemental jurisdiction over a claim and therefore remands that claim back to state court, that decision was discretionary since it could have exercised jurisdiction over the claim even though the federal claim that was the basis for jurisdiction had been dismissed. That discretionary decision to remand is immediately appealable for abuse of discretion.

As such, under the facts as stated here, the appellate court would not lack jurisdiction to hear the appeal.

A tricky issue with a tricky distinction. Worth noting since it comes up in questions.

Wednesday, July 24, 2019

Good Luck!

All best to those preparing for the exam next week! Signing off and posting to resume soon to assist those preparing for the February exam.

Tuesday, July 23, 2019


The crime of forgery has been showing up in some of the released MBE questions so it's worth noting the different angles that might be tested. Here's what I've gathered is important to know:

Forgery consists of the following:

Making or altering a writing with apparent legal significance so that it is false with intent to defraud.

The falsity is apparently important; to be forgery one must represent that the writing is something that it is not. It's not enough if the writing contains a misrepresentation. So, for example, an intentionally falsified receipt might be forgery, but a receipt that is merely inaccurate will not be.

In addition, the "apparent legal significance" element is one that is tested.  So, a contract may be forged, as may a will.  But creating a document and then signing it as Abraham Lincoln or creating a picture and then signing it as Pablo Picasso will not be forgery. Neither the painting nor the writing has any legal significance.

Situations may arise in which the defendant fraudulently causes a third person to sign a document that the third person does not realize he is signing. This, too, is forgery.  Importantly, though, if the third person knows he is signing a document then it is not forgery even if the third person was fraudulently induced into signing it.

Uttering a forged instrument is slightly different than the crime of forgery.  This consists of offering as genuine an instrument that may be the subject of forgery and is false with the intent to defraud.

Wednesday, July 10, 2019

Future Interests (Examples and Illustrations)

By far, the best way to understand future interests in through examples. But before working through examples it's important to understand which future interests attach to which present possessory estates.

Present possessory estate -----> Future interest. 

Fee simple absolute -----> No future interest

Fee simple subject to a condition subsequent -----> Right of re-entry.

Fee simple determinable -----> Possibility of reverter

Fee simple subject to an executory interest -----> Executory interest

Life estate -----> Reversion or remainder


From x to y and y's heirs.
--Y has a present estate called a fee simple absolute.
--X has nothing. X has given his entire interest to y and has therefore retained no future interest.

From x to y but if y fails to use the property for farming then x has the right to enter the property and terminate y's interest.
--Y has a present estate called a fee simple subject to a condition subsequent.
--X has retained as a future interest called a right of re-entry (or a right of termination). If y violates the condition, x can re-enter the property and terminate y's interest.

From x to y for so long as y uses the property for farming.
--Y has a present estate called a fee simple determinable.
--X has retained as a future interest a possibility of reverter. If y violates the condition, x need not take any action. The interest will automatically then revert back to x.

From x to y for so long as y uses the property for farming and if y ceases to use the property for farming then to z.
--Y has a present estate called a fee simple subject to an executory interest.
--Z has a future interest called an executory interest. If y violates the condition the property will automatically shift to z.
--X has nothing. Between the interest given to y and z, x has retained no future interest.

From x to y for so long as y uses the property for farming and if y ceases to use the property for farming then to z for so long as z uses the property for farming.
--Y has a present estate called a fee simple subject to an executory interest.
--Z has a future interest called an executory interest. But z's executory interest is determinable since it is conditioned on z using the property for farming.
--X has retained a future interest called a possibility of reverter. If z violates the condition, the property will automatically shift back to x.

From x to y for life.
--Y has a present estate called a life estate
--X has retained a future interest called a reversion. Once y's life is over, the property will shift back to x. Unlike with a possibility of reverter, this is certain to happen.

From x to y for life and then to z.
--Y has a present estate called a life estate
--Z has retained a future interest called a remainder. When y's life ends, the property will pass to z.
--X has nothing. Between the life estate to y and the remainder to z, x has retained no future interest.

Friday, July 5, 2019

Personal Jurisdiction (Constitutional Requirements)

Personal jurisdiction can intimidate many studying for the bar exam but it's actually a straight-forward issue when approached systematically. It all begins with minimum contacts.

Minimum Contacts:

Personal jurisdiction requires that the defendant at least have minimum contacts with the forum state such that if the forum state exercises jurisdiction over the defendant, such jurisdiction would be fair and reasonable. A commonly used test for assessing minimum contacts is to ask whether the defendant purposefully availed himself of the privilege of conducting activities in that state. If so, the defendant should know that he might be haled into court to defend himself in that state.  A complication can arise if the defendant manufactures a product in state x but then sells it to another in state y. The defendant has then placed that product in the stream of commerce; it's very possible the product might then end up in state z injuring someone in that state. Generally, there is a need to show that the defendant has done more than merely placed the product into the stream of commerce; rather, an intent to benefit from doing business in state z is often required especially if there are no other contacts between the defendant and state z. Similarly, merely maintaining a passive website from which those from the forum state can order products is generally insufficient. A stronger case for jurisdiction over the defendant will be found if the defendant actively targets the state through the website.

Relatedness of Claim to Conduct (Specific vs General Jurisdiction):

When analyzing minimum contacts, it's important to determine whether the claim for which the defendant has been sued is related to the contacts that the defendant had with the forum state. If the claim is related to the contacts with the forum, the court is more likely to find specific jurisdiction as to that claim. But if the claim is unrelated to the contacts with the forum, then for the court to hold that the defendant is subject to general jurisdiction in that forum, it must be true that the defendant is "at home" in that forum. For example, a person is at home in the state in which he is domiciled, and a corporation is at home in the state in which it is incorporated as well as the state in which it has its principal place of business.


Contacts with the forum are not enough. The exercise of jurisdiction must not "offend traditional notions of fair play and substantial justice." The court will consider any inconvenience to the defendant by requiring the defendant to defend in the forum. Only, however, if the defendant is put at a severe disadvantage due to the inconvenience will this factor hold any weight. Another factor is the interest that the forum state has in providing redress to its residents. Also considered is the interest of the plaintiff in obtaining convenient and effective relief. Judicial efficiency is likewise considered.


Assuming there are minimum contacts and that the fairness requirements above are satisfied, it is also required that a reasonable method be used to notify the defendant of a pending lawsuit so that the defendant may have an opportunity to be heard.  And this requirement is the basis of the service of process rules, many of which are also tested on the MBE.

Friday, June 28, 2019

The Wharton Rule

The Wharton Rule is an interesting one. When it comes up in practice questions students often tell me they've heard of it or read about it but it hasn't stuck in memory.  It's simple enough and it's worth knowing how it relates to the crime of conspiracy.

First a quick review of conspiracy. A conspiracy under the common law required an agreement between 2 or more persons with an intent to enter into the agreement and an intent by at least 2 persons to achieve the criminal objective of the agreement. In addition, under the common law an overt act was required to provide some evidence of the agreement. An act of mere preparation would suffice as the overt act.

When the Wharton Rule is implicated, the first step is to consider some crimes that cannot be accomplished by just one person. A few that come to mind are bribery and adultery but there are plenty others. Under the Wharton Rule, where two or more people are necessary for the commission of a crime, there will be no conspiracy to commit that crime unless more parties participate in the agreement than are necessary for the crime.

In other words, if 2 people agree to a transaction that would constitute the crime of bribery then at least 3 people will be required to charge them with conspiracy to commit bribery.  Or more abstractly, if the commission of a crime requires n number of people, then conspiring to commit that crime will require at the least n+1.

One exception to note is that the Wharton Rule does not apply to agreements with "necessary parties not provided for" by the substantive offense.  Thus, if, for example, there is a state statute prohibiting the sale of narcotics and that statute imposes criminal liability on the seller but not on the buyer, then both the buyer and the seller may be charged with conspiracy to sell narcotics even though both parties are in fact required for commission of the offense.

Friday, June 21, 2019

Impeachment (Crimes vs. Prior Bad Acts)

At its core, impeachment is meant to raise issues as to the credibility of a witness. There are quite a few ways to impeach a witness. Two methods that cause some confusion since there are similarities and differences among them are impeachment by conviction of a crime and impeachment by a prior bad act.

Impeachment by Conviction of a Crime:

A witness may be impeached by proof that the witness has been convicted of a crime. Felonies involving dishonesty as well as felonies not involving dishonesty are allowable to impeach. It's more difficult, however, to offer a felony not involving dishonesty since the court will have the discretion to exclude it if the witness being impeached is a criminal defendant and the prosecution has not shown that the conviction's probative value outweighs its prejudicial effect or if the witness is not a criminal defendant and the court determines that the conviction's probative value is substantially outweighed by its prejudicial effect. Note that the standard for a criminal defendant provides a greater level of protection.

Also to note is that generally if more than 10 years have passed since the date of conviction or from the date of release from confinement (whichever is later), a conviction for purposes of impeachment will not be allowable. Juvenile convictions are likewise not allowable nor are convictions obtained in violation of the defendant's constitutional rights. If a witness has been pardoned, the conviction for which the witness was pardoned may not be used to impeach the witness if the pardon is based on innocence or if the witness has not been convicted of a subsequent felony.

To impeach a witness by conviction of a crime, a prior conviction may be shown be either direct or cross examination. Introducing a record of the judgment is also allowable.

Impeachment by Prior Bad Act:

A witness may not have a crime on record but an attorney may want to impeach that witness on some act that did not rise to the level of a convicted crime. This is allowable subject to discretionary control of the trial judge. A witness may be interrogated with respect to an act of misconduct (a "prior bad act") only if the act is probative of truthfulness. Importantly, this is only allowable on cross examination, and the cross examiner must inquire about the act in good faith.

So, for example, it may be proper to ask a witness whether the witness had been terminated from a reason job after the witness was caught embezzling money, since that act is probative of the witness's likelihood of testifying truthfully. But asking whether the witness had been terminated for harassing another employee would be improper for this purpose since the act of harassment is not probative of truthfulness.

Extrinsic evidence to prove prior bad acts (proving the act with a method other than cross examination) is not permitted. In addition, the cross examiner may not reference any consequence the witness may have suffered as a result of the bad act. 

Thursday, June 13, 2019

Removal Jurisdiction

There are many fine details to know about the right that a defendant has to remove a case to federal court. The difficulty is that the MBE tests all of them.

Not all cases brought in state court can be removed to federal court. The case must be one that could have originally been brought in federal court. Only defendants can remove and if there is more than one defendant, all defendants who have been properly joined and served must join in the petition to remove. If the case is removed to federal court, venue will lie in the federal district court embracing the place where the state action is pending.

Situations will arise when a case filed in state court contains a claim that arises under federal law, and that claim is joined with state law. Assuming there is no diversity among the parties and further assuming that supplemental jurisdiction does not apply to allow the federal court to hear the state claim, the entire case can be removed to federal court but the state law claim must be remanded back to state court. In another circumstance, there might be no federal question involved and no diversity of citizenship among the parties. Removal to federal court will still be permitted if the non-diverse parties are thereafter dismissed from the action so that diversity then exists. After the dismissal of the non-diverse parties, removal is proper provided the time limits for doing so have not expired.

An important point to note is that if the only basis for removing a case to federal court is diversity of citizenship, the case will not be removable if any of the defendants is a citizen of the state in which the state action was brought. Further, if diversity is the basis for removal, the case may not be removed more than one year after it was commenced in state court unless the district court finds that the plaintiff has acted in bad faith by acting in a way that was intended to prevent the defendant from acquiring the knowledge that the case was removable.

A defendant seeking to remove must file a notice of removal in the federal district court in the district and division within which the action is pending. A copy of the notice should be sent to the other parties and to the state court in which the case was brought. This notice of intent to remove must be filed within 30 days after defendant receives notice that the case has become removable. If there are multiple defendants and if a later-served defendant files a notice to remove, the earlier-served defendants may join in the removal even if the 30-day period has expired for those earlier-served defendants.

The plaintiff can always file a motion to have a removed case remanded back to state court. A case will be remanded if there is no federal jurisdiction. In addition, the federal court has the discretion to remand a case to state court once all federal claims have been resolved.

Friday, June 7, 2019

Equitable Subrogation (mortgages)

Equitable subrogation in the context of mortgages doesn't show up with much frequency on the MBE but it's given very little focus in many of the outlines even though it does show up on the exam.

When a lender advances funds used to satisfy a senior mortgage, the doctrine of equitable subrogation allows the lender to "step into the shoes" of the senior mortgagee. The significance here is that it will allow the lender to obtain priority over all interests that were junior to the senior mortgagee.

Some jurisdictions (the majority view) take the view that a lender will not take priority over liens that were junior to the senior mortgage if the lender had actual knowledge of those liens at the time that payment was made. The minority view is that either actual or constructive knowledge of the junior liens is sufficient to avoid application of the doctrine. The Restatement (Third) of Property, in contrast, treats notice or knowledge of the other liens as irrelevant, instead stating that the determining factor is simply whether the lender satisfied the senior lien and whether application of the doctrine will prevent unjust enrichment. The rationale here is that because the lender is merely taking the place of the senior mortgagee, the junior mortgagees are in no worse position than they would have been in had the doctrine not applied to give the lender that priority over them.

It's enough for purposes of the MBE to recognize that this doctrine exists and to understand how it can grant priority to a lender who pays off the debt owed to a senior mortgagee. And because it's an equitable doctrine, equitable defenses such an unclean hands and laches should always be considered.

Thursday, May 30, 2019

Equitable Servitudes

I was surprised to find that I hadn't yet written about the topic of equitable servitudes here on the blog since it shows up with some frequency on the MBE. 

Generally, these servitudes are created in a writing that satisfies the Statute of Frauds. The exception is for negative equitable servitudes which may be implied from a common scheme of development. So, if a developer subdivides land and some but not all of the deeds to the subdivisions contain negative equitable servitudes (servitudes that restrict the use of the land), all may be bound provided there was both a common scheme of development and notice was provided to those whom it is claim are bound by the servitude.

As to the common scheme of development, that will be found only if at the time that sales in the subdivision began the developer had a plan that all parcels would be subject to the same restriction.  And as to notice, it may be actual or record notice but often on the MBE the notice is a type of inquiry notice whereby the neighborhood appears to conform to common restrictions.

Assume that someone is bound by an equitable servitude. The next issue is to determine whether that burden will run to the successors of the person bound. It will if the original parties that agreed to the servitude also agreed that the servitude would be enforceable by and against assignees. Also, the assignee of the promisor (the person who promised to be bound) must have notice of the servitude, and the servitude must touch and concern the land. To touch and concern the land requires that the servitude restricts the person burdened by the servitude in his/her use of the land.

For the benefit of the servitude to pass on to assignees of the original parties it is merely required that it was intended that the benefit would pass on and that the servitude touch and concern the benefited property.

As with all issues of equity, a court will not enforce an equitable servitude if the person seeking enforcement is violating a similar restriction on his/her own land (unclean hands) or if the benefited party acquiesced in the violation by the burdened party. Likewise, a court will not enforce an equitable servitude if the benefited party acted in such a way that a reasonable person would believe the servitude was abandoned or if the benefited party fails to bring suit against the violator within a reasonable time (laches). Lastly, the servitude will not be enforced if the neighborhood has changed so significantly that enforcement would be inequitable.

To terminate an equitable servitude requires any of the following: a written release from the benefit holder; merger of the benefited and the burdened land; or condemnation of the burdened property.

Friday, May 24, 2019

Creation of a Trust

A good place to begin in the study of Trusts is with the creation of a trust. It's also a straight-forward way to score a lot of points on an essay that tests this issue.

And so here are the elements, all of which should be addressed should this issue show up:

Capacity: First, you'll need a settlor (the person who creates the trust) with the capacity to create it. The capacity required is the same as the capacity required to create a will.  Look out for things like undue influence, fraud, and duress. All of these will prevent a settlor from having the necessary capacity and without the capacity, no trust is created.

Intent:  The settlor with capacity must intend to create a trust. Under most circumstances a writing is not required to prove intent but always keep in mind the Statute of Frauds when real property is involved.  The settlor must intend that the trust take effect immediately and not at some future time.  And, importantly, a settlor's expression of hope (rather than a direct instruction) that the property be used in a certain way is not evidence that a trust was intended. That's known as precatory language and such language cannot be used to create a trust.

Trustee:  There's got to be a trustee. A trust, however, will not fail if the trustee dies, refuses to accept performance, or resigns. The court will appoint a successor unless it is clear the settlor intended the trust to continue only if that particular trustee served.  The trustee must have enforceable obligations and anyone who has the capacity to acquire and hold property for his/her own benefit has the capacity to act as a trustee.

Beneficiaries:  Beneficiaries enforce the trust and so without them there can be no trust (there are exceptions for both honorary and charitable trusts). Any person capable of taking or holding title to property can be a beneficiary of a private trust. Although notice to the beneficiary as to the existence of the trust is not required, acceptance is required and it may be express or implied. A beneficiary cannot be forced to accept an interest in the trust; rather, a beneficiary may disclaim the interest by filing a written instrument stating an intent to disclaim.

Trust Property:  Where there is no trust property there can be no trust since without property there would be no obligations required by the trustee. The property must be existing property that the settlor has the power to convey. A future interest will suffice, but an interest not yet in existence will not.

Trust Purpose:  There must be a valid trust purposes and a purpose will not be valid if it is illegal, contrary to public policy, impossible to achieve, or intended to defraud the settlor's creditors. If a condition attached to the trust violates public policy the trust might still be valid if the settlor has expressed an alternative desire. In such a case, the condition can be ignored.

Tuesday, May 14, 2019

Amount in Controversy

The required monetary amount for purposes of diversity jurisdiction is a straight-forward issue. Even so, there are many testable angles, and the MBE tests them all. It's worth knowing all of the following when preparing for Civil Procedure:

Actions brought in federal court under diversity must be in excess of $75,000, exclusive of interests and costs (more on this later). This amount in controversy is entirely determined by the plaintiff's good-faith allegation. In other words, the complaint can be dismissed on this basis only if it appears that there is no legal possibility of a recovery exceeding $75,000.  And the fact that $75,000 is not ultimately recovered is not dispositive on whether the claim was in good faith.

In determining what should be included in the claim of $75,000, interest and costs are excluded. But it should be noted that interest that constitutes a part of the claim is included. Interest excluded is interest payable by virtue of a delay in payment. Also included are attorneys' fees that are recoverable by contract or by statute as are punitive damages claims permitted under state substantive law.

Importantly, for purposes of satisfying the jurisdictional amount a plaintiff may aggregate all claims against a single defendant. This is entirely different than a plaintiff attempting to aggregate claims against multiple defendants; in those instances, aggregation is allowable only if defendants are jointly liable to plaintiff.  If instead there are several plaintiffs, aggregation is allowable only if the plaintiffs attempting to aggregate are seeking to enforce a single right in which they have a common or undivided interest. It's unlikely that multiple plaintiffs can aggregate.

It'll also be important to understand how supplemental jurisdiction can affect the required jurisdictional amount. Claims that do not meet the $75,000 requirement may still invoke jurisdiction if there is at least one claim that does meet the requirement and if the claims that do not meet the requirement arise from the same "common nucleus of fact" as the claim that satisfies the requirement.

Wednesday, May 8, 2019

Anti-Lapse Statutes

In the most recent post I outlined the concept of ademption, an area in the subject of Wills that is also seen on the MBE.  Another area that creeps its way onto the test is anti-lapse statutes. The concept is straightforward, but you should know it well:

As a review, ademption occurs when a testator leaves property to a beneficiary in a will but at the time that the testator dies that property is no longer in the estate. Situations will also arise when a testator leaves property to a beneficiary in the will and at the time that the testator dies the beneficiary is no longer alive.  How should this be addressed?

The general rule is that the gift lapses. But nearly all states have anti-lapse statutes that operate to save the gift if the predeceasing beneficiary was in a specified degree of relationship to the testator. States vary but often the beneficiary will need to be a descendant of the testator, a grandparent of the testator, or a descendant of the testator's grandparents. In addition, it'll be necessary that the beneficiary leaves descendants who survive the testator.

For example, assume that the testator leaves property in his will to his grandfather. His grandfather is not alive when the testator dies and as per the general rule the gift left by the testator to his grandfather would lapse. But because the grandfather is in a degree of relationship often contemplated by anti-lapse statutes, instead of the gift lapsing the next step is to determine whether the grandfather has any living descendants. If so, then rather than the gift lapsing, the gift will pass to the grandfather's descendant(s).

Anti-lapse statutes apply unless there is a contrary provision in the will. In other words, if a testator states in a will that the gift should go to "x" only if "x" survives the testator, then any anti-lapse statute should be ignored. That gift will lapse if "x" is not alive when the testator dies.

Thursday, May 2, 2019


Wills is a very heavily tested subject on the MEE, the essay portion of the Uniform Bar Exam. And, although far more limited, it also shows up (in Property questions) on the MBE.  One topic that appears on the MBE is ademption.

Ademption is implicated when a testator leaves property in a will but the property is no longer in the testator's estate at the time of death. What to do in such a situation?

First is to note that ademption only applies to specific gifts in a will. A specific gift is a gift that can only be satisfied by receipt of the specific property described in the will. If such a gift is no longer in the testator's estate at the time of death, the gift is adeemed and the beneficiary who was supposed to receive the gift receives nothing.  If, however, some of the gift remains (for example, a tract of land is left to the beneficiary and some of the land is sold prior to the testator's death), then the beneficiary will receive whatever remains.

Also tested are gifts that are not adeemed. For example, a general gift is a gift in a will of a specific dollar amount. If testator leaves a dollar amount to a beneficiary in a will and there is not enough cash in the estate at the time of death to satisfy that gift, that general gift of cash is not adeemed; rather,  the gift will be satisfied by selling other assets.

There are a few additional important points to keep in mind: assume a specific gift of land is no longer in the estate at the time of testator's death. Although the gift is adeemed, the beneficiary of that gift may be entitled to proceeds from the sale of that land if the land sale contract was executory at the time testator died. The beneficiary may also be entitled to casualty insurance proceeds for loss of personal property that was left to the beneficiary in a will if the proceeds are paid after the testator's death. Lastly, a condemnation award (if land is condemned after testator dies) may go to the beneficiary in the will who was supposed to receive the condemned land as a specific gift.

Friday, April 26, 2019

Analytical Approaches to Conflict of Laws

Conflict of Laws is a very convoluted subject. Perhaps the most convoluted on the UBE.  Thankfully, there has been a limit to how it's tested; usually it'll show up as one question in a set of questions testing another subject.  But it does show up, and it'll be important to understand how the rules apply to a variety of subjects such as Torts, Property, Contracts, Family Law, etc.

But a really good start before diving into all those details is to understand the three analytical approaches that apply to any choice-of-law issue. The approaches will vary depending upon the subject-matter at issue, but the foundation used in deciding which law to apply in a given case doesn't change.

The first approach is called the "vested rights approach of the First Restatement." If applying this approach you'll first want to characterize the area of law (Torts, Contracts, Property, etc.). And then next is to determine the particular choice-of-law rule that applies to that subject matter. For example, in Torts the rule is to apply the law of the place where the wrong occurred and in Contracts the rule is to apply the law of the place where the contract was made or performed. Essentially, you're applying the law of the place where the parties' rights vested (where the event occurred that was necessary to create the cause of action).

The second approach is called the "most significant relationship approach of the Second Restatement." This approach directs you to apply the law of the state that has the most significant relationship to the occurrence or transaction and the parties. In determining which state has the most significant relationship, there are a variety of relevant factors including the following: the needs of the interstate and international judicial system; the relevant policies of the forum; the relevant policies of other interested states; the protection of justifiable expectations; the basic policies underlying the particular area of law; the need for certainty, predictability, and uniformity; and the ease of determining and applying the chosen law.

Lastly is "interest analysis." With this approach, we're directed to first start from the assumption that the forum will apply its own law. Then we're told to consider whether the forum has any interest in the litigation; if not, it's called a "false conflict" and the forum will apply the law of the state other than the forum state.  If the forum and the other state both have an interest then there is a "true conflict" and the forum will reconsider its own policies. If the forum finds that it has a legitimate interest it will apply its own law and if it finds that it is a "disinterested forum" then it will dismiss the case if forum non conveniens is available. If it is a disinterested forum and forum non conveniens is not available the forum will make its own judgment as to which law should apply or it will apply the law of the state that most closely resembles its own law.

Quite confusing, but address these issues with the above approaches and there are plenty of points to be scored.