New York Bar Exam - Conflicts

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What is the state handing down the judgment called?: The rendering state.
What is the state called upon to recognize and enforce the judgment called?: The recognizing state.
What are the two possible scenarios where enforcement is sought for an out of state judgment?: 1) Was the judgment rendered by a sister state court;
2) Was the judgment rendered by a foreign country court?
Are sister state judgments entitled to full faith and credit?: Yes, if two requirements are met:
1) Judgment meets the full faith and credit requirements, and
2) No valid defenses apply
What are the full faith and credit requirements?: 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 rendered on the merits
What if a judgment is modifiable?: A modifiable judgment is not a final judgment and gets no full faith and credit, BUT it will usually still be enforced under principles of comity.
What are the two modifiable judgments to remember?: 1) Future alimony;
2) Future child support

*NOTE: Judgments for amounts already accrued are not considered modifiable.
What two situations are judgements considered to be "on the merits" for full faith and credit purposes, though they are not really on the merits?: 1) Default judgments;
2) Consent judgments

**This is b/c the parties had the opportunity to go to a judgment on the merits.
What defenses are good today?: 1) The judgment is penal - courts will not enfoce this kind of judgment; 2) Extrinsic fraud.
What is a penal judgment?: A penal judgment judgment rendered for an offense against the public.
Are punitive damages penal?: No.
What are examples of penal judgment?: Criminal sanction or civil fine where winner must be the government, not a private person or entity.
What is intrinsic fraud?: Fraut that could have been dealt with during the litigation and it is NOT a good defense to full faith and credit. Example would be perjury by witness.
What is extrinsic fraud?: Fraud that could not have been coped with in the earlier trial.
What is the only type of extrinsic fraud to worry about?: Bribing of a judge.
What are the non-defenses (defenses that won't work but you have to talk about them anyway)?: 1) The judgment is a tax judgment;
2) The judgment is based on a cause of action that violates the forum's public policy;
3) Mistakes by the judge in the earlier trial;
4) Inconsistent judgments
What is the remedy for mistakes by the judge in the earlier trial?: The remedy for such mistakes is to appeal the incorrect judgment; it is too late to raise this issue at the recognition of judgments stage.
What is the rule with respect to inconsistent judgments?: A later judgment can be enforced even though it is inconsistent with a valid earlier one.

**Rule of thumb is you enforce the last judgment in time.
When can foreign country judgments be recognized?: If a two-part comity test is satisfied:
1) Jurisdiction must have been proper; and
2) Fair procedures must have been used in the foreign country proceeding

**All we're really talking about here is Due Process under Int'l Shoe.
How do you determine whether the foreign country judgment meets this test?: Use the recognizing state's law, and this means that state's ideas of due process: where there enough contacts wiht the litigation or the parties to make jurisdiction fair.
What is the special rule with respect to family law judgments?: Recognition and enforcement of ffamily law judgments involves consideration of jurisdictioin, both subject-matter and personal.
What are the types of family law judgments?: 1) The termination of the marital status, that is, the divorce decree;
2) Property awards, such as alimony and child support;
3) Child custody awards.

*Judgments may be of all three types (e.g., divorce with alimony, child support, and child custody), so you may have to consider jurisdiction for each.
What are the requirements for a valid divorce?: A valid divorce requires proper subject-matter jurisdiction and this requires that ONE of the two spouses be domiciled in the state rendering the divorce.
What are the three types of divorce?: 1) The ex-parte drivorce;
2) The bilateral divorce;
3) The consent divorce, where both want out of the marriage and go together somewhere to get it (i.e., the quickie divorce)
What is an ex-parte divorce?: Where only one of the spouses is validly domiciled where the divorce is granted. Not necessary that the other spouse be subject to personal jurisdiction there.
What isi a bi-lateral divorce?: Where one of the spouses is validly domiciled where the divorce is granted, and both spouses are subject to personal jurissdiction there. Not necessary for both parties to be domiciled in the state.
Are consent divorces valid?: No, because no valid domicile of either party exists where the divorce was granted.
So, what is required for any kind of divorce to be valid?: There must be valid domicle of at least one of the parties to give the necessary subject-matter jurisdicion.
Who has the burden of proof on divorces?: The attacker bears the burden of proof.
What type of evidence can the attacker introduce?: ANY relevant evidence whatever, even if the evidence came into existence AFTER the divorce was granted.
Who can attack a divorce decree for lack of subject-matter jurisdiction?: Any interested person who is not estopped. Strangers to the marriage can't attack it.
What are the situations where P is estopped?: 1) Where the attacker was subject to personal jurisdiction in the earlier proceeding, thus the spouse in a bilateral divorce cannot later attack that divorce;
2) Where the attacker may not have been subject to personal jurisdiction in the earlier proceeding, but the attacker played a meaningful role in the granting of the divorce;
3) Persons who are in privity with a party to the divorce (this includes children);
4) A spouse who has remarried in reliance on the earlier divorce.
What is required for recognition of property awards?: A court granting alimony or child support must have personal jurisdiction over the spouse whose property rights are in issue.
What is required for a child custody decree to be recognized?: Valid jurisdiction for determining child custody lies only in the child's home state.
Review: What is required for divorce?: Subject matter jurisdiction -valid domicile of at least one party.
What is required for property awards (alimony and child support)?: Personal jurisdiction over the spouse whose rights are being determined.
What is required for child custody?: Personal jurisdiction over the child - that is, the child's home state.
What is the divisible divorce doctrine?: If a decree 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.
What are the ways that domicile might appear on the exam?: 1) Domicile of the decedent at death 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
How can you acquire a domicile?: 1) Domicile of choice, or
2) Domicile by operation of law.
What is required for domicile of choice?: Legal capacity is needed to make a domicile of choice.
What is the standard for capacity?: The ability to fend for yourself.
What is the test to determined if a person has establish a domicile in a state?: 1) Physical presence in that state;
2) The intent to remain for the foreseeable future, that is, indefinitely.

**NOTE: These are factual issues, so discuss them in relation to hte facts given.
What is required to satisfy the phsyical presence requirement?: Physical presence can be for a short time and still satisfy the requirement.
Where there is a conflict b/t a party's actions and words on domicile, can both states take estate taxes on death?: Yes. This is Consitutionally OK.
v: S
What approach does NY take to determining domicile?: Actions speak louder than words - what you do counts for more than what you say when intent is concerned.
How many domiciles can a person have?: Just one.
How long is a domicile of choice kept?: Until another one is acquired.
Is change of domicile valid even if the motives for such change are improper?: Yes. The motive for going to another state to acquire a domicile is irrelevant.
What happens if a person has no legal capacity to acquire a domicile of choice?: That person will be assigned one by operation of law.
What are the two situations where this happens to remember for the exam?: 1) Domicile of a child;
2) Domicile of a married woman living apart from her husband in a different state.
What is the rule for domicile of a child?: 1) If the child does not have legal capacity, he will have the domicile of the his parents.
2) If the parents are divorced, domicile is that of the parent who has physical custody of the child.
What is the rule for domicile of a married woman living apart from her husband in a different state?: Married woman can obtain a domicile of choice, just like anyone else.

**the old rule was that married woman had the domicile of her husband. (Tell examiners what the old rule was till not that long ago).
What are the constitutional limitations on choice of law?: 1) Due process; and
2) Full faith and credit.

*BUT, there's one test to see if both are satisfied.
What is the test to see if they are satisfied?: The state chosen must have:
1) a significant contact or contacts with the parties or the subject matter of the litigation,
2) which give it a legigimate interest in seeing its law applied.
What five words must you remember about the test?: Significant contact giving legitimate interest.
Where two states have an interest in seeing their law apply, must you weigh the interests to determine which one wins?: No weighing of the interests of the states is needed; as long as a state meets the test then its law can be applied.
What are two situations that do NOT meet the test?: 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 with the parties or the litigation is that the suit is brought in that state, then it would be unconstitutional to apply that state's law.

**Note other than the two specific situations the test will generally be met.
What are the two different approaches to choice of law?: 1) The Vested Rights Approach ;
2) The Interest Analysis Approach
What is the vested rights approach?: Under this approach, the law to be applied is the law where the rights of the P vested.

**This was the traditional system, which had a different rule for each area of law.
What was the rule under the vested rights approach for torts?: Apply the law of the place where the injury occurred.
What was the rule under the vested rights approach for contracts?: Apply the law of the place of making of the contract.
What two things should you note about the vested rights approach?: 1) It had a rule for every area of law;
2) The rules were all territorial rules, pointing to a single place.
What was the problem with the vested rights approach?: Most vested rights rules were fairly clear and easy to apply, BUT, they may wind up pointing to a state that has absolutely no policy interest in the outcome of hte litigation.
What is the interest analysis approach to choice of law?: The 5 Babcock approach to interest analysis:
1) List the factual contacts with each state;
2) Note the different state laws in issue;
3) Find out the policies underlying each state's law by consulting legislative history and court decisions;
4) Take the facts and relate them to the policies to see if the state has an interest in seeing its law applied;
5) Apply the law of the state with the greatest govt interest in the outcome.
On the exam, how should you determine the policies underlying each state's law?: Find out which state's law would favor the P and which would favor the D.
On the exam, how should you relate the facts to the policies to see if the state has an interest in seeing its law applied?: Does the party being favored by a state's law reside in that state? If so, that state has an interest.
How do you complete the last state?: Must see which of the four categories the conflict fits in:
1) Is it a false conflict, that is, where only one state has an interest in having its law applied?
2) Is it a true conflict, that is, where two or more of the states involved have an interest in the litigation, and one of them is the forum state?
3) Is it a disinterested forum case, where two or more states have an interest in having their law applied and the forum is not one of them?
4) Is it an unprovided for case, where no state has an interest in applying its own law?
What do you do where it is a false conflict?: Apply the law of the only jurisdiction with an interest in the outcome of the litigation.
What do you do if it is a true conflict and one of the interested states is the forum?: Presume that you will apply the law of the forum state, unless the interest of the other state is much greater.
What do you do if it is a disinterested forum case?: In a disinterested forum case, a NY court can do one of two things:
1) Apply the law that is closest to NY law (*This is what most NY courts will do); or
2) Apply the better law.
What do you do if it is 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.
In what area of law do conflicts usually show up?: Torts.
What rules do you apply in the torts area to determine choice of law?: Apply the 5-step Babcock test PLUS the additional three rules of Neumeier:
1) When the P and D are domiciled in the same state, that state's law will be applied (same domicile rule);
2) Neumeier Rule Two: 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) Neumeier Rule Three: When the P and D 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.
What is Neumeier in a nutshell?: Apply the law of the place of injury UNLESS both parties live some place else.
What are loss distribution rules?: Most tort rules are loss distribution rules, those that determine which party will bear the loss.
What do you apply to loss distribution rules?: Apply Babcock/Neumeier analysis to all loss distribution rules.
What do you apply to rules regulating conduct?: For all rules regulating conduct, apply the law of the place of the injury.
What is the 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 law 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.
Can parties choose law in a K?: 1) Parties can always choose the law in the contract for matters of contract construcgion and ANY law can be chosen forconstruction matters;
2) Parties can also choose the law to govern matters of contract validity, provided three things exist.
What three things must exist in order for the parties to be able to choose the law to govern matters of contract validity?: 1) The choice can't be contrary to a fundamental policy of a state with a greater interest than the chosen state.
2) There must be a substantial relationship to the parties or the transaction;
3) The choice must be free of duress; that is, not a contract of adhesion.
What is the NY Special Statute of Large Contracts?: 1) If a contract is for $250,000 or more, thc parties can choose NY law even if the contract has no connection with NY at all.
2) If a contract is for not less than $1 million and the parties choose NY law in the contract, 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.
How is choice of law determined if parties DON'T choose the law in the contract?: NY has abandoned the old vested rights rule in contracts (place of making) in favor of interest analysis in the Babcock 5-step test.
When interest analysis is applied to contracts, what do we call the state chosen?: The state with the most significant relationship.
What is the special rule for insurance contracts?: All issues regarding the rights and duties under an insurance policy are determined by the state where the policy is written.

**even if the Babcock/Neumeier test might point to another state.
What is the rule for choice of law in real property cases?: The law of the situs of the property governs, that is, the law of the place where the property is located. No governmental interst analysis.
What is the rule for choice of law in personal property cases?: 1) For every situation but one, use the same situs rule as for real property, BUT
2) 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.
What is the rule with respect to inheritance?: A 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 wife from an elective share.
What is the family law rule of choice of law?: If a marriage is valid where performed it is valid everywhere.
What is the exception to this rule?: 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.
Will same sex marriages be recognized in NY?: No definitive answer yet, but all previous NY decisions would point toward recognition.
What is the rule with respect to marriages void where performed?: Marriages void where performed are void everywhere, BUT if a marriage is void because it failed to comply with some technical requirement of the state where performed it can still be recornized in NY IF it would have complied with the NY rule.
What law are divorces governed by?: Divorces are governed by the alw of the P's domicile.
What defenses can be raised to a proposed choice of law?: 1) That the law chosen is procedural, not substantive;
2) That the law is against hte public policy of the forum state;
3) That the law is a penal law.
What is the only defense with any real importance?: That the law chosen is procedural and not substantive. Forum will not apply the other state's procedural rules, only the substantive rules.
What rules are procedural?: 1) Burden of proof (*BUT, if the burden of proof could be considered outcome determinative, it will be considered substantive);
2) Statutes of limitations;
3) Ability to bring counterclaims
What is the exception to the rule that statutes of limitations are procedural?: Borrowing statutes, which will borrow, and apply, the shorter statute of limitations of the state where a cause of action arose.

**BUT, NY will not apply the borrowing statute if the P is from NY.
What are substantive rules?: 1) Contributory or comparative negligence; 2) Statute of frauds; 3) Parole evidence rule; 4) Contribution among tortfeasors; 5) Direct action statutes
What are direct action statutes?: They allow P to sue insurance company directly.
What is the rule in NY with respect to direct action statutes?: NY rule is the opposite of the rule in most states. NY regards these as substantive and most regard them as procedural.
What is the scope of the public policy defense?: Very limited. The law must be REALLY offensive for this to apply. That the law is considered merely unreasonable or unwise by NY is not sufficient.
What is the scope of the penal law defense?: Applies only to offenses against the public: a criminal judgment or civil fine.
What is the rule with respect to use of state law in federal courts?: A federal court sitting in a diversity case must use the choice of law rules of the state in which it sits.
What is the rule with respect to notice and proof of foreign law?: 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.
What if the foreign law cannot be determined?: If the foreign law cannot be determined then a NY court will apply NY law, so long as there is no injustice.

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