Conflicts Of Law

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Recognizing sister state decisions (full faith and credit):

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• Sister state judgments: entitled to full faith and credit
○ Requirements of full faith and credit:
§ Jurisdiction: valid jurisdiction in RENDERING court over both parties and subject matter of litigation (under rendering state law)
§ Final judgment. If modifiable NOT recognized as final judgment and gets no full faith and credit, BUT will usually still be enforce under principles of comity (examples: future alimony and future child support, but amounts already accrued and in arrears are NOT modifiable, so considered final)
§ Judgment rendered on merits (includes default and consent because had opportunity to go to judgment, but SOL is procedural)

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Valid defenses to full faith and credit

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Valid defenses:
§ Judgment is penal: judgment rendered for offense AGAINST THE PUBLIC (criminal sanctions or civil fines, NOT punitive damages). Exam tip: look for government to be winner.
§ Extrinsic fraud: could not have been raised and coped with in earlier trial (ex: bribing judge).
□ NOT intrinsic fraud: could have been coped with in earlier trial within judicial mechanism, i.e., perjury of witness.

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Non-defenses to full faith and credit

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○ Non-defenses (defenses that fail, but discuss if appear in facts)
§ Tax judgment--one time contended penal, but now valid and enforceable.
§ Violates forum's public policy (argument that underlying cause of action was ok in state where rendered but it contrary to enforcing state's public policy--alienation of affection).
§ Mistakes by judge in earlier trial. Remedy for such mistakes is to APPEAL incorrect judgment. Too late to raise issue at recognition of judgment stage.
§ Inconsistent judgments: later judgment CAN be enforce even though it is inconsistent with valid earlier one. Enforce LAST judgment in time.

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Foreign country judgments

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• Foreign country judgments: can be recognized and enforce if 2-part comity test is satisfied: 1) jurisdiction was proper and FAIR procedures must have been used in foreign country proceeding.
○ To determine whether foreign country judgment meets test use RECOGNIZING state's law (not foreign law), meaning state's ideas of DUE PROCESS: were there enough contacts with litigation or parties to make jurisdiction FAIR.
○ Exam tip: most of time foreign judgment is enforced.

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Types of divorce decree

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○ Divorce (termination of marital status): requires proper subject matter jurisdiction and requires that one of two spouses be domiciled in state rendering divorce. Three types of divorce decrees:
§ Ex parte divorce (only one of spouses is validly domiciled where divorce is granted)
§ Bilateral divorce (one of spouses is validly domiciled where divorce is granted and BOTH spouses are subject to personal jurisdiction): not necessary for both to be domiciled for bilateral divorce.
§ Consent divorce (both want out of marriage and go together somewhere to get it "quickie divorce"). For any kind of divorce to be valid, but be valid domicile of one of parties.

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Procedural matters for enforcing divorces

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§ Procedural matters on divorces:
□ Burden of proof: attacker of validity of divorce bears burden of proof and can introduce any relevant evidence whatever, even if evidence came into existence AFTER divorce granted.
□ Any interested person who is not estopped can attack divorce decree for lack of subject matter jurisdiction. Strangers to marriage CANNOT attack it. Estopped:
® Where attacker was subject to personal jurisdiction in earlier proceeding (spouse in bi-lateral divorce cannot later attack that divorce)
® Where attack may not have been subject to personal jurisdiction in earlier proceeding, but attacker played meaningful role in granting of divorce (on spouse helping other spouse to get divorce) (helped wife, bought plane tickets).
® Persons in privity with party to divorce cannot attack (including children)
® Spouse who has remarried in reliance on earlier decree cannot later attack divorce.

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Property awards and child custody awards

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○ Property awards (alimony, child support): court granting alimony or child support must have PERSONAL JURISDICTION over spouse whose property rights are in issue. (No ex parte, need bilateral).
○ Child custody: valid jurisdiction for determining child custody lies only in child's home state.
○ Divisible divorce doctrine: if decree has some parts that are good and some that are bad, KEEP GOOD and IGNORE REST.

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Family law jurisdiction in a nutshell

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• Family law jurisdiction in nutshell
○ Divorce: subject matter jurisdiction--valid domicile of at least one party
○ Property awards: personal jurisdiction over spouse whose rights are being determination
○ Child custody: personal jurisdiction of child, must be child's home state 

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Domicile situations

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• 4 domicile situations
○ Domicile of decedent: used to choose law to be applied to determine intestate success of personal property (NOT for real property).
○ Domicile at death determines which state can levy ESTATE TAXES.
○ Domicile of individual gives subject-matter jurisdiction for divorce
○ Domicile is for applying NY Choice of law rules.

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Domicile of choice

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• Domicile of choice: need LEGAL CAPACITY to make domicile of choice. Standard is less than other areas: only need to have ABILITY TO FEND FOR YOURSELF.
○ Two part test: 1) Physical presence in state (can be for very short time and still satisfy) and Intent to remain for foreseeable future (indefinitely).
○ Conflict of acts and words on intent: sometimes people live (act) in one place, but claim (words) another as their domicile. NY: action speak louder than words. Apply presence test: if you live in state most of time, even if you say you are domiciled elsewhere, state where your actions say you are domiciled is where you are domiciled.
§ Can have only ONE domicile. Once obtained, domicile of choice is kept until another one is acquired (die on way to move to new domicile--old domicile applies).
§ Motive for going to another state to acquire domicile is irrelevant.

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Domicile by operation of law

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• Domicile by operation of law: if person has no legal capacity to acquire domicile of choice, will be assigned one by operation of law.
○ Domicile of child: if child does not have legal capacity to get domicile of choice, child will have domicile of child's parent. If parents are divorced, domicile is custodial parent.
○ Married woman living apart from husband in different state: today married woman can obtain domicile of choice, but used to have domicile of her husband.

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Constitutional limits on choice of law

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• Constitutional limitations on choice of law: 1) due process and 2) full faith and credit.
○ Test: state chosen must have significant contact or contact with parties or subject matter of litigation which give it legitimate interest in seeing its law applied (significant contact giving legitimate interest).
○ No weighing of interests of states is needed, as long as state meets test then its law can be applied.
○ Exceptions:
§ If, after event in question, someone MOVES to new state and move creates ONLY CONTACT with that state, then it would be UNCONSTITUTIONAL to apply that state's law.
§ If ONLY CONTACT with parties or litigation is that suit is brought in that state, then would be unconstitutional to apply that state's law.

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Vested rights approach to choice of law

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• Vested rights approach to choice of law(traditional system, aka Territorial approach): law to be applied is law where rights of P VESTED.
○ Torts: instant cause of action arises P's rights become vested, so vested rights rule would say to apply law of place where injury occurred.
○ Contracts: rights under contract vest at moment contract is made. Apply law of place of making of contract.
○ Traditional system had method of every area of law and each rule was territorial, meaning it only pointed to single place. Most vest rights rules were fairly clear and easy to apply BUT they may wind up point to state that had NO policy interest in outcome of litigation.

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• Interest analysis approach (NY's modern approach, policy interest in state in case outcome). Five step Babcock approach to interest analysis:

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1. List factual contacts with each state.
2. Not different state laws in issue
3. Find out policies underlying each state's law by consulting legislative history and court decisions. Exam tip: find out which state's law would favor P and would favor D (who is law designed to protect?).
4. Take facts and relate them to policies to see which state(s) has interest. Exam tip: does party being favored by state's law reside in that state? If so, that state has an interest.
5. Apply law of state with greatest governmental interest in outcome:
1. False conflict? Only one state has interest in having its law applied, apply law of only jurisdiction with interest in outcome of litigation.
2. True conflict? Two or more of states involved have an interst in litigation and one is forum state. Presume apply law of forum state, unless interest of other state is much greater.
3. Disinterested forum case? Two or more states have an interest in having their law applied and forum is not one of them. Can either apply law that is closest to NY (most courts) OR apply the better law.
4. Unprovided for case? No state has interest in applying its own law? (state where D is from does not favor him, state where P is from does not favor him). No state has interest in seeing its law applied, then often apply NY law.

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Torts interest analysis

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• Torts: apply Babcock, PLUS Neumeier ****:
1) same domicile rule--when P and D are domiciled in same state, that state's law should be applied;
2) When P and D are domiciled in different states, then if law of place where accident occurred helps its citizen, then apply law of place of injury.
3) When P and D are domiciled in different jurisdictions and law of place where accident occurred does not help its citizen, then still apply law of place of injury unless other jurisdiction has greater interest in outcome.
○ Summary: apply law of place of injury unless both parties live someplace else.
○ Loss distribution rules: most torts rules are loss distribution rules, determining which party bears loss. Apply to Babcock plus Neumeier analysis to all loss distribution rules. (vicarious liability, guest statute)
○ Rules regulating conduct: apply law of place of injury (rules of road).

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Contracts interest analysis

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• Contracts: ability of parties to choose law of contract.
○ Construction: Parties can always choose law (any law) in contract for matters of contract construction (even if state has no connection to parties).
Validity: Parties can choose la to govern matters of contract validity, provided 1) substantial relationship to parties or transaction; 2) choice can't be contrary to fundamental policy of state with greater interest than chosen state; 3) choice must be free of duress, not contract of adhesion (preprinted take it or leave it).

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Special NY rules for large contract

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○ NY Special statute on large contracts***: Contract for $250,000+, parties can choose NY law to govern validity even if contract has no connection.
§ If contract is for at least $1 million and parties choose NY law in contract, then parties may also put in forum selection contract and courts are prohibited from dismissing under forum non conveniens.

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No choice of law in contract

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○ If parties did not choose law in contract.
§ NY has abandoned old vested rights rule in contract (place of making) in favor of interest analysis in Babcock test--state chosen by court is called state with most significant relationship.
§ Special rule for insurance contracts: all issues regard rights and duties under insurance policy are determined by state where policy is WRITTEN.

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Real property, personal property and inheritance choice of law

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• Real property: law of SITUS of property governs. Law of place where property is located.
• Personal property: use same situs rule as for real property
○ Exception: if issue is passing of personal property by intestate succession, state chosen is state of deceased's DOMICILE AT DEATH.
• Inheritance: non-NY domiciliary can choose NY law in will to apply to disposition of NY assets. Applies in all situations even when it would out spouse from elective share.

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Family law choice of law

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• Family law: if marriage is valid where performed, valid everywhere
○ Exception: if marriage would violate strong public policy of state then it may not be recognized even though it was valid were performed. Same-sex marriage does not violate strong public policy
○ Marriages void where performed are void everywhere, BUT if marriage is void because it failed to comply with some technical requirement of state where performed can still be recognized in NY IF would have complied with NY rules.
○ Divorces are governed by law of P's domicile.

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Defenses to choice of law

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Defenses to choice of law
• Law chosen is procedural, not substantive. Forum will NOT apply procedure of another state.
○ Burden of proof: NY will use its own rule, not other state's, but if burden of proof is outcome determinative, it is substantive.
○ Statute of limitations: usually procedural. Exception: NY borrowing statute, which will borrow and apply, shorter statute of state where cause of action arose. BUT NY will NOT apply borrowing statute if P is from NY. (prevent forum shopping but not against own resident P)
○ Ability to bring counterclaims: procedural
○ Substantive: contributory or comparative negligence; statue of frauds; parol evidence rule; contribution among tortfeasors; direct action statutes (ability to sue insurance company directly).
• Law is against public policy of forum state. Must be REALLY OFFENSIVE.
• Law is penal: applies only to offenses against public--criminal judgment or civil fines.

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Use of state law in federal courts:

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• Use of state law in federal courts: federal court sitting in diversity case bust use choice of law rules of state in which it sits.

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Notice and proof of foreign law

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• Notice and proof of foreign law: courts will take judicial notice of sister-state and federal law, but law of foreign country is FACT that must be pleaded and proved.
If foreign law cannot be determined, then NY court will apply NY law so long as no injustice.