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42 Cards in this Set
- Front
- Back
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When must a sister state judgment be given full faith and credit?
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When it meeds 3 Full Faith and credit requirements and no valid defenses apply which would barr FFCC
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What are the 3 Full Faith and Credit Requirements?
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1. Valid Jurisdiction in rendering court (personal and SMJ)
2. Final Judgment - cannot be modifiable - in arrears is ok - if modifiable, enforceable under principles of Comity 3. Rendered on the merits - incl. default judgments -incl. consent judgments (bc pty had opp. to go to judgment on merits -anything procedural, like SOL, is not on the merits. |
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What are the good defenses to the full faith and credit clause?
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1. Penal Judgment- rendered for redressing an offense against the public (crim sanction, civil fine)
- punitive doesn't equal penal - winner of suit must be the govt, not private party. 2. Extrinsic fraud- fraud that couldn't have been coped w.in the earlier trial (bribing judge) |
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What are the "non-defenses" to FFC that you must discuss, but won't work?
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1. Tax judgments
2. Judgment based on cause of action violating forum state's public policy 3. Inconsisten Judgments "enforce the last in time" |
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For foreign country judgments, what is the 2 part commity test?
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1. Jurisdiction proper
2. fair procedures in the foreign country proceeding? Fairness test: apply the recognizing state's law, ask whether there were sufficient contacts w/ foreign country to make jurisdiction FAIR to satisfy D/P |
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In order to have a valid divorce decree, what must you have?
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Valid SMJ for valid decree, which requires that one of 2 must be domiciled in rendering state.
1. Ex Parte divorce (one spouse validly domiciled in rendering state) 2. Bi-lateral divorce (one spouse is validly domiciled in rendering state, both subject to personal juris) 3. Consent divorce (not valid) |
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Who bears the burden of proof when a divorce decree's validity is attacked?
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The attacker. He can use any evidence from before or after the divorce is granted.
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What else is required of the attacker>?
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They must be interested and they must not be estopped
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What makes an interested person estopped from challenging a divorce decree's validity?
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1. If he was a spouse in bilateral divorce it means he was subject to p. juris. in earlier proceeding
2. Played meaningful role (H got W tix to Nev and drove to airport 3. Privity w. divorce party (kids) 4. Remarried in reliance on divorce |
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What do you need to get a property award enforced? (alimony or child support)
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Must have personal jurisdiction over the spouse whose property rights are in issue
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How does one get a child custody judgment enforced?
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Must have personal j. over the child, Child;s home state.
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What is the divisible divorce doctrine?
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Decrees are always mixed up (probably have all 3); keep the good, ignore the rest
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What are the 4 potential situations on the exam related to domicile?
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1. Intestate succession of personal property- domicileof decedent determines choice of law
2. Estate taxes- domicile at death determines which state gets it 3. Divorce- domicile of individual gives SMJ 4. NY Choice of Law Rules- domicile is important |
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What is "Domicile of Choice"
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It means you had the legal capacity to make the choice.
Two part test- phsycial presense in the state (really short is ok) and intent to remain for foreseeable future; indefinitely |
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What happens if your actions and your words about your domicile are in conflict?
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In NY, ACTIONS SPEAK LOUDER THAN WORDS
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How many domiciles can you have?
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1. Stays the same until new one is acquired
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What are examples of domicile by operation of law?
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No legal capacity to acquire domicile by choice, assigned by law
Children - if married, parent's domicile, if divorced, parent w/ physical custody Married women, living apart from H (today domicile by choice rules, Old rule was domicile of her husband. |
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For Due Process and Full Faith and Credit, what is the constitutional test?
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The state whose law is chosen must have significant contacts w/ the parties or the subject matter of the litigation giving the state a legitimate interest in seeking to apply the law
Do not weight the interests of the states, meet the test, your law can be applied w/o violating constitution |
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What are 2 situations that do not meet the test?
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1. After the event in question, someone moves to a new state and the move is the only contact to the state, unconstitutional to apply that state's law
2. If the state's only contact is that suit filed in that state. unconstituional to apply that state's law |
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What is the old, outdated vested rights approach for choice of law?
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It was a territorial approach, depended on where P's rights were vested.
1. torts- apply the law where the P's injury occurred 2. Contracts- apply the law where the contract was made. |
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What was the problem with the vested rights approach?
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Most vested rights clear and easy to apply BUT rules would poitn to a state that has absolutely no policy interest in the outcome of the litigation
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What is the approach of Babcock known as?
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Interest analysis approach
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What is the policy behind the babcock test?
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It ensures government with the greatest interest in the suit has its law applied
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What is the 5 part Babcock test?
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1. Where are P and D from?
2. Identify conflicting state policies 3. Look at who the law is designed to protect and get the policy that way 4. Does it favor their own resident? if so, they have govt int. 5. Apply the law with w/ greatest governmental interest in outcome |
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What are the situations in which you already know how to break the tie?
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1. False conflict- only one state has an interest- apply that state
2. True conflict- if 2 or more have an interest and one of them is the forum state, apply forum state law 3. Disinterested forum- 2 or more states have interest, but neither is forum state- 2 choices, mention both- apply law closest to NY or apply the better law. 4. Unprovided for case- no state has interest in applying its law- apply NY law |
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What is the interest analysis approach for torts?
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Use 5 step Babcock plus Neumeir Rules.
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What are the 3 Neumeir RUles
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1. Same domicile rule- when P and D are domiciled in same state, apply that state's law
2. P and D domiciled in different states, apply the law of where the accident occurred if it helps its own citizen 3. P and D are domiciled in different states and law of the state where accident occurred does not help its citizen, STILL apply law of place where injury occurred unless other Juris has greater interest in outcome. |
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In loss distribution rules, what do I apply?
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Babcock Neumeir
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Can parties choose any law for contract construction?
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Yes.
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Can parties choose law governing K validity?
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Yes, if choice is not contrary to fundamental policy of state w/ greater interest than chosen state
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What are the NY special rules on Large Contracts
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1. 250K or more can choose NY law evein if contract has no connection to NY
2. $1 Million or more (a) can choose NY law (b) NY is forum (c) and no ct. can dismiss for forum non conveniens. |
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If contract is silent on choice of law....
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Use 5 step babckock tests, but after analsysi and you choose a state, say "state chosen whose law to apply is the state with the most significant relationship to the contract.
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What is the rule on insturance contracts?
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1. All issues re: rights and duties under insurance policy determined by state where policy was written
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What is the rule with real property?
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apply the law of situs of property- state where property is
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What is the rule with Personal Property?
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Apply the law of situs- except if passing property by intestate succession, apply state of decedent's domicile at death
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What is the rule on inheritance?
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A non-NY domiciliary can choose NY law in will to apply to disposition of NY assets.
Applies to all situations, even when it would oust a wife from an elective share |
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What is the rule on family law?
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If marriage is valid where performed, it is valid everywhere.
Except: if marriage violates strong public policy of state, it may not be recognized though valid where performed. If marriage is invalid where performed, it is invalid everywhere. EXCEPT if marriage is void for failure to comply w. technical requirement of state where performed, can be recognized in NY IF it would've complied w. NY rule. |
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What are the Defenses to Choice of Law?
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1. Law chosen is Procedural and NOT substantive
2. Law is against Public Policy of Forum state (must be really offensive for this to work) 3. Law is a penal law |
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What are some examples of procedural laws?
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1. burden of proof
2. statute of limitations (remember NY home court advantage) 3. ability to bring counterclaims |
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What are some examples of substantive laws?
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1. Contributory or comparative negligence
2. SOF 3. PE rule 4, Contribution among tortfeasors 5. Direct action statutes |
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What is the rule of state law in federal court?
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A federal court sitting in diversity case must use the choice of law rules of the state in which it sits
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What is Notice and Proof of Foreign Law?
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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 a foreign law cannot be determined, then NY court will apply NY law, so long as no injustice. |
