Conflict Of Laws

Front 1

What are the requirements for full faith and credit over sister states' judgments?

Back 1

(1) Valid jurisdiction in rendering court
(2) Judgment was final
(3) Judgment was on the merits

Front 2

What are the GOOD defenses against full faith and credit of sister states' judgments

Back 2

(1) penal
(2) extrinsic fraud - could not have been dealt with during trial

Front 3

What are the "non-defenses" against full faith and credit of sister states' judgments

Back 3

(1) tax judgment
(2) cause of action violates NY public policy
(3) mistake by judge in earlier trial
(4) inconsistent judgment - enforce most recent judgment

Front 4

What are the requirements for comity (recognition) of foreign judgments?

Back 4

(1) proper jurisdiction - "fundamental fairness" test
(2) fair procedures

Front 5

What types of out-of-state divorces are recognized?

Back 5

(1) ex parte - where one spouse is validly domiciled where the divorce was granted
(2) bilateral - where one spouse is validly domiciled where granted AND both spouses are subject to personal jurisdiction
(3) international divorces if NOT ex parte

NOT foreign ex parte divorces

Front 6

Who is estopped from attacking a divorce?

Back 6

(1) attacker who was subject to personal jurisdiction where the divorce was granted (bilateral divorce = no attack)
(2) attacker who played a meaningful role in granting of the divorce
(3) attacker who is in privity with a party of the divorce (e.g. children)
(4) attacker who remarried in reliance on the earlier divorce

Front 7

What is the test for domicile?

Back 7

(1) physical presence
(2) INTENT to remain for the foreseeable future

Front 8

Where is a child's domicile?

Back 8

Domicile of parents - if they're divorced, the state where the parent with physical custody is domiciled

Front 9

What are the USC limitations on choice of law - satisfies BOTH due process and full faith & credit?

Back 9

state has SIGNIFICANT CONTACTS with the parties giving a LEGITIMATE INTEREST in seeing its law applied

Front 10

What is the current approach to choice of law?

Back 10

"interest analysis approach"

Front 11

What is the "interest analysis" approach to the choice of law test?

Back 11

Babcock approach

Front 12

What is the Babcock approach?

Back 12

(1) Note factual contacts with each state
(2) Note different state laws in issue
(3) Find out the policies underlying each state's laws
(4) Take facts and relate them to policies to see if the state has an interest - IF the party favored by the state's law resides in the state, then YES interest
(5) Apply the law of the state with the greatest governmental interest in the outcome

Front 13

What are the rules of applying Babcock?

Back 13

(1) If only one state has an interest - apply that state's law (false conflict)
(3) If the forum and another state has an interest - apply the forum state's law unless really outweighed (true conflict)
(3) Two states outside of the forum have interest - apply forum state or better law (disinterested forum)
(4) No state has an interest - apply forum state's law (un-provided-for case)

Front 14

Under Babcock, what rule do you apply when only one state has an interest?

Back 14

That state's law (false conflict)

Front 15

Under Babcock, what rule do you apply when the forum state and another both have interests?

Back 15

The forum state's law, unless outweighed greatly by the other state's interest

Front 16

Under Babcock, what law do you apply when two states outside the forum have interests?

Back 16

The forum state's law OR the better law

Front 17

Under Babcock, what law do you apply when no state has an interest?

Back 17

Usually the forum state

Front 18

In tort cases, which law do you apply?

Back 18

(1) Rules regulating conduct - law of state where injury occurred
(2) Loss distribution rules - apply Neumeier

Front 19

In tort cases involving rules regulating conduct, which state law applies?

Back 19

The law of the state where the injury occurred

Front 20

In tort cases, what loss distribution rules apply?

Back 20

Apply Neumeier

Front 21

Under Neumeier (applies to loss distribution rules), what rule applies when P and D are domiciled in the same state?

Back 21

That state's law applies = "same domicile rule"

Front 22

Under Neumeier (applies to loss distribution rules), what rule applies when P and D are from different states and the law of the place where the accident occurred helps its citizen?

Back 22

The law of the state where the accident occurred

Front 23

Under Neumeier (applies to loss distribution rules), what law applies when P and D are from different states and the law where the accident occured does NOT help its citizen?

Back 23

Still apply the law of the state where the accident occurred, UNLESS the other state has a really big interest

Front 24

Basically, what does Neumeier say about choice of law in loss distribution?

Back 24

Unless P and D both live in the same state, apply the law where the accident occurred

Front 25

K parties can ALWAYS choose the law in the K for matters of what?

Back 25

Construction - and ANY law can be chosen

Front 26

When can K parties choose the law governing validity of K?

Back 26

(1) choice is not contrary to fundamental policy of a state with a greater interest,
(2) there is a substantial relationship between the state and the parties or transaction, AND
(3) choice is free from duress - not an adhesion K

Front 27

If not specified in the K, which law applies?

Back 27

State with most significant relationship with the K

Front 28

Which law are insurance K governed by?

Back 28

The state where the policy is written

Front 29

In real property, what is choice of law?

Back 29

Law of situs of the property

Front 30

In personal property, what is the choice of law?

Back 30

Law of situs of the property, EXCEPT if the property is passing intestate - then law of the domicile of decedent

Front 31

Which law applies in governing wills?

Back 31

Non-NY domiciliary may choose NY law in a will to apply to disposition of NY assets

Front 32

What is the choice of law regarding VALIDITY of marriage?

Back 32

If it's valid where performed, then valid in NY - maybe public policy exception (but same sex ok)

Front 33

If a marriage is VOID where performed, is it void in NY?

Back 33

Maybe not - if it's void because of a technicality, it will be recognized in NY if it would have complied with NY law

Front 34

What are the defenses to choice of law?

Back 34

(1) Procedural
(2) Against public policy
(3) Penal

Front 35

What are the big 3 procedural rules (no out-of-state law)?

Back 35

(1) Burden of proof - BUT if outcome determinative, then substantive
(2) Statute of limitations - EXCEPT borrowing statute
(3) Ability to bring counterclaims

Front 36

What are the 5 substantive rules to remember - DO use other state's law?

Back 36

(1) Contributory or comparative negligence
(2) SOF
(3) Parol evidence rule
(4) Contribution among tortfeasors
(5) Direct action statutes (let P sue insurance co. directly)

Front 37

What law is applied in diversity action?

Back 37

State in which the fed court sits, UNLESS there was a transfer of venue, in which case the original state

Front 38

Does a party need to prove other states' laws?

Back 38

No - judicial notice

Front 39

Does a party need to prove foreign law?

Back 39

YES - is a "fact"

Front 40

What happens if foreign law cannot be proved?

Back 40

Court will apply NY law as long as there is no injustice