Ny Choice Of Law

Front 1

Steps for approaching a New York torts action where the conflict arises from conduct regulating rules

Back 1

Have a territorial focus

State is interested in applying its conduct regulating rules when the conduct occurs in that state.

Front 2

Torts action with conflict of loss-allocating rules.

(Neumeier Rules)

Back 2

Rule 1. Where the parties share a common domicile: apply the law of the shared domicile.

Rule 2. Where the parties are from different states, if the loss-allocating rule benefits each party if their own state law applies: apply the law of the place where the tort occurred (territorial tie-breaker)

Rule 3. Where the parties are from different states, the law where of the state where the accident occurs will be applied unless: there is some very good reason not to.

Front 3

Summary of a Tort Response

Back 3

1. There is a choice of law question because this is a substantive issue. Names states from which you have to chose.

2. This is a tort.

3. Identify the kind of rule at issue (conduct regulating or loss allocating)

4. Apply appropriate to rule.

Hint 3

(1) conduct regulating- this is really interest analysis. Decide which state is interested.

(2) Loss-allocating
(a) shared domicile: apply law of shared domicile

(b) split domicile each party favored by own law, tort in one of those states: apply the law of the place where the tort occurred.

(c) other split domicile rule:
apply the law of the place where tort occurred unless there is some good reason not to.

Front 4

In the absence of a valid express choice of law clause, NY courts follow:
Center of Gravity analysis

Back 4

1. place of contracting

2. place of negotiation

3. place of performance

4. location of the subject matter of contract

5. domicile of contracting parties

6. NY status as a major financial center

Front 5

Choice of law:
The validity and effect of an inter vivos transfer of land?

Back 5

always the land of the situs

(where property is located)

Front 6

Choice of law:
The validity and effect of an inter vivos transfer of movable property?

Back 6

the land of the situs

(where property is located)

Front 7

Validity and effect of a transfer of a movable property by will or bequest

Back 7

domicile of the decedent

Front 8

Disputs over property between married persons

Back 8

determined by the law of marital domicile.

Hint 8

Ex: married couple domiciled in NY. Couple separates, bulk of husband's property is in Louisiana. Husband left property in will for his four children nothing for his wife. Under NY law the property would be considered separate property and wife would get 1/3 under Louisiania law would be community property wife would get 1/2. NY was the state of matrimonial domicile = NY law controls

Front 9

Validity of divorce issued in another state

Back 9

valid as long as that state has jurisdiction- one of the parties is domiciled there.

Front 10

New York can exercise jurisdiction in a child-custody action:

Back 10

If it is the child's home state

-lived there with a parent for 6 mos or since birth if less than 6 mos old.

Front 11

A will disposing of personal property anywhere or real property situated in NY or by NY or non-resident is valid as to form and admissible to probate in NY if it is: (a) in writing; (b) signed by the testator; and (c) executed and attested in accordance with:

Back 11

1. New York law;

2. the law of the state in which the testator was domiciled at the time of execution; or

3. law of the state where testator was domiciled at the time of death

Front 12

Foreign Penal Laws

Back 12

A state will not apply foreign penal laws

Front 13

Constitutional limits on state court choice of law

Back 13

Test:
A state must have significant contacts or significant aggregation of contacts creating state interests such that choice of its law is neither arbitrary nor fundamentally unfair.

Front 14

A federal court sitting in NY exercising diversity jurisdiction will:

Back 14

Apply NY choice of law rules

Front 15

Erie Doctrine

Back 15

In cases coming before the federal courts on the basis of diversity of citizenship, the federal court shall apply the substantive law of the state which it sits, as declared by the highest court of the state, and shall apply federal law on matters of procedure

Front 16

State substantive law

(Erie Doctrine)

Back 16

Ask:

would the fact that you get federal law affect your choice of forum?

Front 17

The following analytically procedural matters have been held to be outcome determinative and so are "substantive" for Erie purposes

Back 17

1. SOL

2. burden of proof

3. conditions under which foreign states can sue.

4. state law requiring a P in a shareholder derivative suit against a corporation to post bond as security for costs.

5. choice of law rules

Front 18

As a constitutional matter, the 7th Amendment rather than state law controls questions of judge-jury allocation

Back 18

If you have a question with a case in federal court but a state law allocates issues to a judge rather than a jury, say that:
7th Amendment informs this analysis do not let state law undermine authority of the jury

Front 19

Judgment of foreign state

Back 19

NY must recognize a foreign state's judgment if it is:
1. final

2. valid

3. on the merits