New York Bar Exam: Conflicts Of Laws

Front 1

Recognition and Enforcement of Judgments: What's the nomenclature?

Back 1

The state handing down the judgment is the rendering state and the state called upon to enforce and recognize the judgment is the recognizing state. Issues: 1. Was the judgment rendered by a sister state court? 2. Was judgment rendered by a foreign country court?

Front 2

Recognition and Enforcement of Judgments: When is the judgment entitled to FF&C?

Back 2

1. Judgment must meet FF&C requirements

2. No valid defense applies.

Front 3

Recognition and Enforcement of Judgments: What's the FF&C requirement?

Back 3

1. Valid juris in the rendering court over both the parties and SM of the litigation

2. Judgment was a final judgment

3. Judgment must have been rendered on the merits.

Note: Judgments for amts already accrued and in arrears are considered final judgments.

Note: If judgment is modifiable it's not a final judgment and gets no FF&C, BUT it will usually be enforced under principles of comity.

2 modifiable judgments to remember:

a. Future alimony

b. Future child support.

Front 4

Recognition and Enforcement of Judgments: What are 2 situations that are on the merits for FF&C purposes?

Back 4

1. Default judgments

2. Consent judgments

Front 5

Recognition and Enforcement of Judgments: What are the defenses against FF&C?

Back 5

***Only 1 and 2 good today, but talk about all***

1. Judgment is penal, courts won't enforce this kind of judgment (penal judgment is judgment rendered for an offense against the public) Examples: Criminal sanctions, civil fines.

2. Extrinsic Fraud: In contrast to intrinsic fraud which is fraud that could have been dealt with during the litigation and is not a good defense to FF&C, extrinsic fraud is fraud that could not have been dealt with in the earlier trial. Classic example is bribing of a judge.

Non-defenses: Won't work but must talk about if presented in facts:

1. The judgment is a tax judgment Today OK to enforce

2. The judgment is based on a COA that violates forum's public policy.

3. Mistakes by the judge in the earlier trial. Remedy for this is appeal incorrect judgment, too late to raise this issue at recognition of judgments stage.

Inconsistent judgments: A later judgment can be enforced even tho inconsistent w/ a valid earlier one. Rule of thumb: enforce the last judgment in time.

Front 6

Recognition and Enforcement of Judgments: How to recognize and enforce foreign country judgments?

Back 6

Foreign judgments can be recognized and enforced if 2 part comity test satisfied:

1. Jurisdiciton must have been proper, and

2. Fair procedures must have been used in the foreign country proceeding.

To determine whether foreign country judgment meets this test use recognizing state's law, and this means that state's ideas of due process: were there enough contacts with the litigation or the parties to make jurisdiction fair.

Front 7

Recognition and Enforcement of Judgments: How to recognize and enforce family law judgments?

Back 7

R&E of family law judgments involves consideration of jurisdiction, both SM and personal:

3 types of judgments w/ own jurisdictional requirements:

1. the termination of the marital status, divorce decree

2. property awards, such as alimony and child support

3. child custody awards.

Judgments may be of all 3 types, so have to consider jurisdiction for each.

Front 8

Recognition and Enforcement of Judgments: What does a valid divorce require to get R&E?

Back 8

Valid divorce requires proper SMJ and this requires that one of the 2 spouses be domiciled in the state rendering the divorce.

3 types:

1. Ex-parte divorce, where only one of the spouses is validly domiciled where the divorce is granted

2. Bi-lateral divorce, where 1 of the spouses is validly domiciled where the divorce granted, and both spouses subject to PJ there.

3. The consent divorce, where both want out of the marriage and go together somewhere to get it (quickie)

Front 9

Recognition and Enforcement of Judgments: Procedural matters on divorces?

Back 9

1. Burden of proof - the attacker bears the B of P and can intro any relevant evidence whatsoever, even if the evidence came into existence after the divorce was granted.

2. Any interested person who is not estopped can attack a divorce decree for lack of SMJ. Strangers to the marriage can't. 4 estoppel situations (where P is estopped):

a. where attacker was subject to PJ in the earlier proceeding, thus a spouse in a bi-lateral divorce can't later attack that divorce

b. where attacker may not have been subject to PJ in the earlier proceeding, but attacker played a meaningful role in the granting of the divorce.

c. persons who are in privity with a party to a divorce, includes kids

d. a spouse who has remarried in reliance on the earlier divorce.

Front 10

Recognition and Enforcement of Judgments: Requirement for court granting property awards (alimony child support)?

Back 10

A court granting alimony or child support must have PJ over the spouse whose property rights are in issue.

Front 11

Recognition and Enforcement of Judgments: Requirement for court granting custody decree?

Back 11

Valid jurisdiction for determining child custody lies only in the child's home state.

Front 12

Recognition and Enforcement of Judgments: Family law jurisdiction in a nutshell?

Back 12

For divorce: SMJ - valid domicile of at least one party.

Property awards: (alimony child support): PJ over the spouse whose rights are being determined

Child custody: PJ over the child - that is the child's home state.

Front 13

Recognition and Enforcement of Judgments: What's the divisible divorce doctrine?

Back 13

If a decree (see above rules) has some parts that are good and some that are bad, you keep the good and ignore the rest, this is called the divisible divorce doctrine.

Front 14

Domicile: Four possible issues on exam?

Back 14

1. 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 SMJ for a divorce.

4. Domicile is very important when applying NY choice of law rules.

Front 15

Domicile: What is required to make a domicile of choice?

Back 15

To acquire domicile of choice, legal capacity is needed. Standard: ability to fend for one's self.

2 part test for establishing a domicile of choice:

1. Physical presence in that state.

2. The intent to remain for the foreseeable future, that is, indefinitely.

These are factual issues, discuss them in relation to the facts given. Physical presence can be for a short time and still satisfy the requirement. When dealing with a conflict between acts and words as to intent, actions speak louder than words. What you do counts for more than what you say so far as intent is concerned.

A person can have only one domicile. Once obtained a domicile of choice is kept until another is acquired. The motive for going to another state is irrelevant (can be a bad one).

Front 16

Domicile: What is required to make a domicile of law?

Back 16

If a person has no legal capacity to acquire a domicile of choice that person will be assigned one by operation of law. 2 situations for exam:

1. If the child doesn't have legal capacity to get a domicile of choice, the child will have the domicile of the child's parents.

2. Domicile of a married woman living apart from husband in a different state: Today, married women can obtain a domicile of choice, just like anyone else. Old rule: married woman had the domicile of husband. (discuss both to show you know, you know?)

Front 17

Choice of law: What are the consitutional limitations of choice of law (2)

Back 17

1. Due process

2. FF&C

Test to see if each is satisfied:

a. The state chosen must have a significant contact or contacts with the parties or the SM of the litigation, which give it a

b. legitimate interest in seeing its law applied.

Five words: Significant contacts giving legitimate interests.

Note: No weighing of interests required.

Front 18

Choice of law: 2 situations where the 5 word test doesn't apply?

Back 18

1. If, after the event in question, someone moves to a new state, and that move creates the only contact with that state, then it would be unconstitutional to apply that state's law.

2. If the only contact w/ the parties or the litigation is that the suit is brought in a state court then it would be unconstitutional to apply that state's law.

Front 19

Choice of law: What's the vested rights approach to choice of law?

Back 19

The traditional system, also called the territorial approach.

Under VR approach, the law to be applied is the law where the rights of P vested.

Rule for each area of law:

1. Torts: The instant a COA arises P's rights become vested, so the vested rights rule would say to apply the law of the place where the injury occurred, or the place of the wrong. Not the place of the negligence, but the place of the injury.

2. K: Rights under a K vest at the moment the K is made, so the vested rights rule would say to apply the law of the place of the making of the K.

Rule for every area of the law, and the rules were territorial, pointing to single place.

Sometimes wound up pointing to state that has no policy interest in the outcome of the litigation.

Front 20

Choice of law: What's the interest analysis approach to choice of law?

Back 20

5 step Babcock approach to interest analysis:

1. List the contact w/ each state

2. Not the different state law in issue

3. Find out the policies underlying each state's law by consulting legislative history and court decisions (exam shortcut: find out which state's law would favor the P and which would favor the D)

4. Take the facts and relate them to the policies to see if the state has an interest in seeing its law applied. (Exam shortcut: does the party being favored by a state's law reside in that state? If so, that state has an interest.

5. Apply the law of the state w/ the greates governmental interest in the outcome. To do the last step, need to see which 4 categories the conflict fits in, see next card.

Front 21

Choice of law: What are the 4 categories that you must use to determine where the conflict fits in?

Back 21

1. Is it a false conflict, that is, where only one state has an interest in having its law applied? If so, you apply the law of the only jurisdiction with an interest in the outcome of the litigation.

2. Is it a true conflict, that is, where 2 or more of the states involved have an interest in the litigation, and one of them is the forum state? If you have a true conflict you will presume that you apply the law of the forum state, unless interset of the other state is much greater.

3. Is it a disinterested forum case, where 2 or more states have an interest in having their law applied and the forum is not one of them? In a disinterested forum case a NY court can do one of 2 things: a. Apply the law that is closest to NY law, or b. apply the better law.

4. Is it an unprovided-for case, where no state has an interest in applying its own law? If no state has an interest in seeing its law applied we have an unprovided-for case, and the courts most often will just apply NY law.

Front 22

Choice of law: How to apply the Babcock test to torts cases?

Back 22

Use the 5 step Babcock test PLUS the additional 3 rules of Neumeier:

1. When the P and D are domiciled in the same state, that state's law will be applied. This is called the same domicile rule.

2. When the P and D are domiciled in different states, then if the law of the place where the accident occurred helps its citizen, that state's law will be applied.

3. When the P and D are domiciled in different jurisdiction and the law of the place where the accident occurred will not help its citizen, then you still apply the law of the place of injury unless the other jurisdiction has a greater interest in the outcome.

Neumeier in a nutshell: Apply the law of the place of the injury unless both parties live some place else.

Front 23

Choice of law: How to apply Babcock/Neumeier to loss distribution rules and rules regarding conduct?

Back 23

Apply the Babcock/Neumeier analysis to all loss distribution rules. Most tort rules are loss distribution rules.

For all rules regulating contact, apply the law of the place of the injury. Rules regulating conduct are sometimes called rules of the road.

Step by step method to use on the exam in a torts case:

1. Is the law a rule regulating conduct or a rule on loss distribution?

2. If a rule regulating conduct, apply the rule of the place of injury.

3. If a rule on loss distribution discuss the Babcock 5 step method and the 3 Neumeier rules and apply the law of the state indicated.

Front 24

Choice of law: How to apply the Babcock test to K cases?

Back 24

Ability of the parties to choose the law in the K:

1. Parties can always choose the law in the K for matters of construction.

2. Parties can also choose the law to govern matters of K validity provided 3 things exist:

a. The choice can't be contrary to a fundamental policy of a state w/ a greater interest than the chosen state.

b. There must be a substantial relationship to the parties or the transaction.

c. The choice must be free of duress, i.e., not a K of adhesion.

Front 25

Choice of law: What is the NY special statute on large Ks?

Back 25

If a K is a minimum of 250k, the parties can choose NY law even if the K has no connection with NY at all.

If a K is a minimum of 1M and the parties choose NY law in the K, then the parties may also put in a clause specifying that NY may be the forum, and courts are prohibited from dismissing under forum non-conveniens.

CHOICE OF LAW IF PARTIES DON'T CHOOSE THE LAW IN THE K:

NY has abandoned the old vested right rule in K (place of making) in favor of the interest analysis in the Babcock 5-step test.

***When interest analysis is applied to Ks we call the state chosen the state w/ the most signficant relationship to the K.

Special rule for insurance Ks: all issues regarding the rights and duties under an insurance policy are determined by the state where the policy is written.

Front 26

Choice of law: What's the choice of law rule for RP Ks

Back 26

The law of the situs of the property governs, that is, the law of the place where the property is located.

Front 27

Choice of law: What the choice of law rule for personal property?

Back 27

For every situation but one, use the same situs rule as for real property.

BUT, if the issue is the passing of personal property by intestate succession, the state chosen is the state of the deceased's domicile at death.

Front 28

Choice of law: What's the choice of law rule for inheritance

Back 28

A non-NY domiciliary 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 29

Choice of law: What's the choice of law rule for family law?

Back 29

General rule: If a marriage is valid where performed, it is valid everywhere.

Exception: If a marriage would violate the strong public policy of a state then it may not be recognized even though it was valid where performed.

Marriages void where performed are void everyhwere.

BUT, if marriage is void b/c it failed to comply with some technical requirement of the state wher performed, it can still be recognized in NY IF it would have complied w/ the NY rule.

Divorces are governed by the law of the P's domicile.

Front 30

Choice of law: What 3 defenses can be raised to a proposed choice of law?

Back 30

1. That the law chosen is procedural, not substantive.

Procedural:

a. burden of proof

b. S/L. Exception: Borrowing statute, which will borrow, and apply, the shorter statute of the state where a COA arose. BUT, NY will not apply the borrowing statute if the P is from NY.

c. Ability to bring counter claims.

Substantive:

a. Contributory or comparative negligence.

b. S/F.

c. Parol evidence rule.

d. Contribution among tortfeasors.

e. Direct action statutes. (NY law is opposite from other states here)

2. That the law is against the public policy of the forum state. Law must be really offensive to apply.

3. That the law is a penal law. Review: Applies only to offenses against the public: a criminal judgment or civil fine.

Front 31

Choice of law: What's the rule on use of state choice of law rules in federal courts?

Back 31

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

Front 32

Choice of law: How is notice and proof of foreing law handled?

Back 32

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 foreign law cannot be determined then a NY court will apply NY law, so long as there is no injustice.