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45 Cards in this Set
- Front
- Back
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What two state are involved in every conflict of laws?
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1. rendering state: the state handing down the judgment
2. recognizing state: the state called upon to recognize and enforce the judgment |
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What 2 requirements necessary to give the judgment full faith and credit?
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Judgment must meet the full faith and credit requirements (3) AND
No valid defenses apply |
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What are the full faith and credit requirements (3)?
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1) Valid jurisdiction in the rendering court over both the parties and the subject matter of the litigation
2) The judgment was a final judgment 3) The judgment must have been entered on the merits |
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Are there any exceptions to the limit on final judgments?
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2 modifiable judgments (remember that amount that have already accrued and are in arrears are considered final judgments)
i) future alimony ii) future child support |
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What exceptions to judgments on the merits?
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i) default judgments
ii) consent judgments |
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What are the valid defenses against full faith and fair credit? (2)
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2 good defenses
a) The judgment is penal meaning it was rendered as an offence against the public, criminal sanctions or civil fines (government is the winner; Does not include punitive damages) b) Extrinsic fraud (NOT intrinsic) basically looking for something that could not have been dealt with at the trial--like bribing the judge |
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Is a mistake by the judge in the trial a defense to the full faith and credit?
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NO, Mistake by the judge in the earlier trial should be dealt with by appeal--NOT enforcement in another jurisdcition
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Upon what 2 factors is full faith and credit given to judgments from foreign (non US) courts?
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i. Jurisdiction must have been proper AND
ii. fair procedures must have been used in the foreign country proceeding |
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What is the 2 part test for domicile?
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DOmicile will be determined by physical location PLUS intent to be domiciled
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What is required for full faith and credit of a divorce judgment?
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Divorce judgments require proper subject-matter jurisdiction and this requires that one of the two spouses be domiciled in the state rendering the divorce
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What are 3 common divorce scenarios when considering full faith and credit?
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1) Ex-parte; where only one spouse is validly domiciled where the divorce is granted
2) Bi-lateral; One spouse is validly domiciled and both spouses are subject to personal jurisdiction there 3) Consent divorce; Both want out and go somewhere to get it |
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In a consent divorce scenario, is full faith and credit given to the divorce?
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NO, not Valid, because neither party is domiciled in that jurisdiction
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Can a party who wishes to attack a divorce introduce any relevant evidence to disprove jurisdiction?
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YES, even if it is introduced after the fact eg the party lied to establish domicile.
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What 4 categories of persons are estopped from attacking a divorce based on SMJ?
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i) where the person was subject to personal jurisdiction in the earlier proceeding
ii) where the person may not have been subject to personal jurisdiction, but the attacker played a meaningful role in the granting of the divorce iii) Person in privity--this is includes children iv. A spouse who has remarried in reliance on the earlier divorce |
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Where must a child custody dispute be adjudicated in order to receive ful faith and credit?
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valid jurisdiction for determining child custody lies only in the child’s home state
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Four ways Domicile may appear on the exam?
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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 subject-matter jurisdiction for a divorce 4. Domicile is very important when applying NY choice of law rules |
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How is a child's Domicile determined?
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1) domicile of the parents, if divorced, then the parent who has custody
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How is domicile determined for a married women living apart from her husband
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Apply the test to her individually, no longer contingent on husband--OLD rule.
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What is the constitutional threshold under Due Process and Full Faith and Credit to determine validity?
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State chosen must have significant contact giving it a legitimate interest over the case
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What situation would fail the test under due process and full fiath and credit?
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Moving to a state simply to avail oneself of the laws there, or bringing suit in a state with no other contact, then Constitutional test fails.
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Under the Vested Rights Approach or the traditional approach, how was choice of law determined?
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It had a rule for every area of law e.g. torts, K's and the rules were territorial, pointing to a single place.
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State the 5-step Babcock approach to Choice of Law.
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i. List the factual contacts with each state
ii. Note the different laws at issue iii. Find out the policies underlying each state’s law by consulting legislative history and court decisions iv. Take the facts and relate them to parties to see if the state has an interest in seeing its law applied v. Apply the law of the state with the greatest governmental interest in the outcome |
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Babcock requires that we apply the law of the state with the greatest governmental interest in the outcome--to do so we see which of the 4 categories the conflict fits in: list them
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1- false conflict
2- true conflict where 3- disinterested forum 4- Unprovided-for case |
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What is a false conflict?
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where only one state has interest in having its law applied
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What is a true conflict conflict?
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where 2 or more of the states involved have an interest in the litigation, and one of them is the forum state
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What is a disinterested forum case ?
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where 2 or more states have an interest, but one of the interests states is no the forum state
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What is an Unprovided-for case?
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where no state has an interest in applying its own law
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In a disinterested Forum Case, a NY court can do one of 2 ways (mention both):
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1. Apply the law that is closest to NY law OR
2. Apply the better law |
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In order to resolve a conflict of law in a torts case, what analysis?
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USE the 5-step Babcock Test PLUS: 3 additional rules of Neumeier.
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What are the 3 additional Neumeier Rules?
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1) Same domicile rule: when the plaintiff and defendant are domiciled in the same state, that state’s law will be applied
2) When the plaintiff and the defendant 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 plaintiff and the defendant are domiciled in different jurisdictions and the law of the place where the accident occurred does not help its citizen, then you still apply the law of the place of the injury unless the other jurisdiction has a greater interest in the outcome. |
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What is the simplest way to remember Neumeier?
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Neumeier Nutshell: Apply the law of the place of the injury unless both parties live some place else
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If Rules determine which party will bear the loss, how to analyze? If Rules regulating conduct?
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Rules that determine which party will bear the loss: apply the Neumeier
Rules regulating conduct: apply the law of the place of the injury |
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In what 3 circumstances can Parties choose the law to govern matters of contract?
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i. The choice can’t be contrary to fundamental policy of a state with a greater interest than the chosen state
ii. must be a substantial relationship to the partied of the transaction iii. the choice must be free of duress, no contract of adhesion |
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NY Special Statute on large contracts?
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If K is for $250,000 or greater; parties can choose NY for validity even if the contract has no connection with NY at all
If K is worth 1,000,000 or greater, paries can also elect NY as the forum and the case can not be dismissed for forum non conveniens |
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How is choice of law determined for insurance contracts?
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All issues regarding the rights and duties under an insurance policy are determined by the state where the policy is written
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How is choice of law determined for Real Property?
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State where the property is located
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How is choice of law determined for Personal Property?
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Except for intestacy it is the SITUS of the property
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How is choice of law determined for Inheritance?
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By the Testattor: A non-NY domiciliary can choose NY law in a will to apply to the disposition of NY assets--even it would oust the wife from an elective share
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How is choice of law determined in Family Law?
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If marriages are valid where performed, they are valid everywhere, except if would violate a strong public policy
c. |
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What if a marriage is void in the home state?
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IFmarriage void in home state it is voi elsewhere, unless it is void for a technicality and would have been valid in NY even with this technical violation
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How is choice of law determined in Divorce?
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Divorces are governed by the law of the plaintiff’s domicile
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What 3 defenses can be raised to a proposed choice of law?
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a. That the law is procedural and not substantive
b. That the law is against public policy (very restrictive)--law must be really offensive c. That the law is a penal law |
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What laws are generally considered Procedural?
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1) Burden of proof
2) Statute of limitations 3) Ability to bring a counter-claim |
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What laws are generally considered Substantive?
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1) contributory or comparative negligence
2) statute of frauds 3) parol evidence rule 4) contribution among tortfeasors 5) direct action statutes |
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How do courts deal with laws of foreign countries?
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Courts will take judicial notice of sister-state law, but the law of foreign country is a question of fact which must be plead and proven
If it can’t be proven then the NY will apply NY law, so long as there is no injustice. |
