Conflict Of Law

Front 1

Recognition and enforcement of judgments- vocab

Back 1

the state handing down the judgment is the rendering state. The state called upon to enforce the judgment is the recognizing state.

Front 2

Recognition and enforcement of judgments.
Sister state judgments

Back 2

(1) must meet the full faith and credit requirements, and
(2) no valid defenses

Front 3

enforcement of a judgment
The full faith and credit clause

Back 3

(1) valid jurisdiction in the rendering court over both the parties and the subject matter of the litigation
(2) the judgment was a final judgment- if a judgment is modifiable, its not a final judgment and gets no full faith and credit, but can be enforced under principal of comity- (a) future alimony, (b) future child support. **Not final judgments for amounts already owed.
(3) judgement rendered on the merits- includes default judgments and consent judgments.

Front 4

Enforcement of a judgment Defenses

Back 4

(be sure to discuss non-defenses too)
(1) the judgment is penal- courts wont enforce. A judgement rendered for an offense against the public. Winners must be government.
(2) Extrinsic Fraud- could not have been coped with in the earlier trial. Bribing of a judge
(intrinsic fraud- that which could have been dealt with during litigation, and it not a defense)

Front 5

Enforcement of a judgment
Non-defenses

Back 5

(1) the judgment is a tax judgment- it will be enforced
(2) the judgment is based on a cause of action that violates the forums public policy- still enforceable.
(3) Mistakes by the judge in the earlier trial- remedy is to appeal.
(4) inconsistent judgment- enforce last judgment in time.

Front 6

Enforcement of judgments
Foreign Country Judgments

Back 6

Recognized and enforced if 2 part comity test is satisfied:
(1) jurisdiction was proper, and
(2) fair procedures must have been used in the foreign proceeding.
-use recognizing state's law, were there enough contacts to make the litigation fair.

Front 7

enforcing family law judgments
The Divorce

Back 7

requires proper subject matter jurisdiction. This requires that one of the two spouses be domiciled in the state rendering the divorce.
Three types: (1) Ex-parte divorce- where only one of the spouses is validly domciled where the divorce is granted.
(2) the bi-lateral divorce- one of the spouses is validly domicile where the divorce is granted, and both spouses are subject personal jurisdiction.
(3) the consent divorce- where both spouses go somewhere to get a divorce. Not valid because neither is domiciled there.

Front 8

Enforcement on family law judgments

procedural matters on divorce

Back 8

burden of proof: the attacker bears the burden and can introduce any relevant evidence, even if it came into existance after the divorce was granted.
(2) any interested person who is not estopped can attack a divorce decree for lack of subject matter jurisdiction. P's that are estopped. (a) attacker was subject to personal jurisdiction in the earlier proceeding. (b) attacker may not have had subject matter jurisdiction in the earlier proceeding, but played a meaningful role in the granting of the divorce, (c) persons who are in privity with a party to the divorce- including children. (d) a spouse who has remarried in reliance on the earlier divorce.

Front 9

Enforcement of family law judgments
property awards.

Back 9

A court granting alimony or child support must have personal jurisdiction over the spouse whose property rights are at issue.

Front 10

Enforcement of family law judgments
child custody decree

Back 10

valid jurisdiction for determining child custody lies only in the childs home state.

Front 11

Enforcement of a family law judgment
The divisible divorce doctrine

Back 11

if the decree has some parts that are good and some that are bad, you keep the good and ignore the bad.

Front 12

Domicile

Back 12

domicile of the decedent is used to choose the law to be applied to determine intestate succession of PERSONAL property.
(2) domicile at death determines which state gets estate taxes.
(3) domicile of an individual gives subject matter jurisdiction for a divorce.
(4) need for choice of law rules.

Front 13

Domicile of choice

Back 13

-need legal capacity to make a domicile of choice. Standard- the ability to fend for yourself.
(1) physical presence in that state. (even if for a short time)
(2) the intent to remain for the forseeable future (indefinatly).
-actions speak louder than words. motive for moving is irrelevant. can only have one domicile.

Front 14

domicile by operation of law

Back 14

if a person does not have legal capacity to acquire a domicile of choice, they will be assigned one by operation of law.
(1) children- if they dont have capacity to get their own, they take their parents (if divorced, the domicile of the parent with physical custody of the child).
(2) domicile of a married woman living apart from her husband- today she can have her own domicile. Old rule- took the domicile of her husband.

Front 15

Choice of law
Constitutional requirements

Back 15

Due process and full faith and credit requirements.
-State chosen must have a significant contact(s) with the parites or the subject matter of the litigation which give it a legitimate interest in seeing its law applied. (significant contact giving legitimate interest)
- situations that do NOT qualify: (1) if any the situation, someone moves to a new state, and the move creates the only contact. (2) if they only contact wit the parties or litigation is that the suit is brought in that state.

Front 16

Vested Rights approach to choice of law

Back 16

apply the law of the place where the P's rights vested.
(1) torts- apply the law of the place where the injury occured, or the place of the wrong. (not place of negligence, but place of injury)
(2) contracts- vest the moment the k is made. Apply the law of the place of making of the k.
*territorial rules, sometimes they point to a state that had no policy interest in the matter.

Front 17

Interest analysis approach to choice of law.

Back 17

Babcock approach: (1) list the factual contacts with each state, (2) note the different state laws in issue, (3) find out the policies underlying each states law by consulting legislative history and court decisions, (which would favor the P and which would favor the D), (4) take facts and relate them to the policies to see if the state has an interest in applying its law (does favored party reside in that state), (5) apply the law of the state with the greatest interest.
(a) false conflict- only one state is really interested. Apply law of interested state. (b) true conflict- 2 or more states have an interest- apply the law of forum, unless other states interest is much greater, (c) disinterested forum- apply either ny law, or the better law. (d) unprovided for case- no state is interested- NY law.

Front 18

Interest analysis- Torts

Back 18

5 step babcock plus Neumeier rules.
(1) If P and D are domiciled in the same state that states law will be applied.
(2) when P and D are domiciled in different states, then if the law of the place the accident occured helps its citizen, that states law will be applied.
(3) When P and D are domiciled in different states and the law of the place of the accident does not help either, apply law of place of injury unless other state has a greater interest in the outcome. "unprovided for"

Front 19

Interest analysis- loss distribution rules

Back 19

most torts are loss distribution, that determine which party bears the loss. Apply Babcock/neumeier. (distinguish from rules regulating conduct)

Front 20

Rules regulating conduct

Back 20

for all rule regulating conduct, apply the law of the place of the injury.
rules of the road.

Front 21

Interest analysis- contracts

Back 21

(1) parties can always choose the law in the k for matters of contract construction. Any law can be chosen.
(2) parties can choose the law to govern k validity if: (a) the choice is not contrary to a fundamental policy of the state with a greater interest than the chosen state, (b) there is a substantial relation to the parties or the transaction, and (c) the choice is free of duress, and its not a k of adhesion.
The state chosen is the state with the most significant relationship to the k.

Front 22

NY statute on large contracts

Back 22

If a k is for not less than $250k the parties can choose NY even if the k has no connection to NY.
If the k is for not less than $1M and the parites choose NY law in the k, then the parties can also put in a clause specifying that NY may be the forum and courts are prohibited from dismissing for forum non convenience.

Front 23

Interest analysis
Special rules for insurance k

Back 23

all issues regarding the rights and duties under an insurance policy are determined by the state where the policy is written.

Front 24

Interest analysis
real property

Back 24

the law of the situs of the property governs. (the law of the place where the property is located).

Front 25

Interest analysis-
Personal property

Back 25

the law of the situs governs. Except: if the issue is the passing of personal property by intestate succession, the state chosen is the domicile at death.

Front 26

Interest analysis- inheritance

Back 26

a non NY domicilary can choose NY law in a will to apply to the disposition of NY assets.
This applies in all situations, even when it would oust a spouse from an elective share.

Front 27

Interest analysis- family law

Back 27

If a marriage is valid where performed, it is valid everywhere. Except- if it would violate the strong public policy of a state then it may not be recognized even though it was valid where performed.
if a marriage is void where performed it is void everywhere. EXCEPT IN NY- where it is void because it failed to comply with some technical requirement, but would have complied with NY's rule. then its valid.
Divorce governed by the law of the P's domicile.

Front 28

Defenses to choice of law

Back 28

(1) Law is procedural, not substantive- (a) burden of proof, (b) statute of limitations. Except the borrowing statute- which applies the shorter statute of limitations, but NY will not apply the borrowing statute if P is from NY. (c) ability to bring counterclaims. Substantive- contributory/comparative negligence. statute of frauds. parol evidence, contribution among tortfeasors, direction action statute.
(2) law is against the public policy of the forum- must be really offensive.
(3) law is penal- applies only to offenses against the public. a criminal judgment or civil fine.

Front 29

Use of state law in federal courts

Back 29

a federal court sitting in diversity cases must use the choice of law rules of the state in which it sits.

Front 30

Notice and proof of foreign law

Back 30

courts will take judicial notice of sister state and federal law, but the law of a foreign country is a fact which must be pleaded and proved. If the foregin law cannot be determined then a NY court will apply NY law, so long as there is no injustice.