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Conflicts of Law


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Judgment Enforcement Terminology
The state handing down the judgment is the rendering state.
The state calling upon to recognize and enforce the judgment is the recognizing state.
Ask yourself if the judgment was rendered by another state’s court or a foreign country’s state?
Full Faith and Credit Requirements
1) There must be valid jurisdiction in the rendering court over both the parties and the subject matter of the litigation. If jurisdiction is proper then that’s all that matters and rendering state controls.
2) The judgment was a final judgment. If a judgment is modifiable it is not recognized as a final judgment and is not entitled to full faith and credit. Even though it is not entitled to full faith and credit you would want to say the judgment would still be recognized and enforced in most states under general principles of commity.
3) Judgment must have been rendered on the merits. If the first was procedural/not on the merits, then doesn’t require full faith and credit. Default Judgments and Consent Judgments are not often considered “on the merits” they are considered on the merits for full faith and credit
Usually these are not an issue, just lay them out so you show you know them. Turn to the defenses only after these 3 requirements are satisfied.
Full Faith and Credit Requirements: Modifiable Judgments
What are modifiable judgment to look out for?
1) Future alimony and
2) Future child support.
These are almost always modifiable and not final judgment or entitled to full faith and credit.
Distinguish Future child support and alimony from already accrued ones that are in arrears and can be enforced.
Defenses to Full Faith and Credit: Penal Judgment
A defense that will work is that the judgment is penal – good defense but very limited.
Penal = there was a judgment rendered for an offense against the public
Note: Massive punitive damages are not penal since they are awarded to a private individual to address a private injury. Need to have a judgment for offense against the public (criminal sanction, civil fine, etc)
Winning party has to be a government for it to be a penal judgment!
Defenses to Full Faith and Credit: Extrinsic Fraud
Intrinsic Fraud = kind of fraud that could have been dealt with in the earlier trial – if intrinsic fraud then the defense is not good
Classic example = perjury of a witness, could have attacked it during the trial
If intrinsic then the judgment is recognized and the defense fails
Extrinsic Fraud = fraud that could not have been coped with in the earlier trial
Example: Bribing a judge – no way to deal with that in the earlier trial
If extrinsic fraud then the judgment is not entitled to recognition
Full Faith and Credit: Non-Defenses that will NOT work
1) Judgment is a tax judgment.
At one time they said that was penal but now it is clear they are not and are entitled to full faith and credit
2) Judgment based on cause of action that violates the forum’s public policy.
Can’t do this, if it’s ok in the rendering state then it’s enforceable in the recognizing state
3) Mistakes by a judge in the earlier trial – say judgment shouldn’t be recognized because the judge giving the judgment was incompetent/tons of mistakes/etc
Supreme Court has imposed an estoppel here. The correct remedy is to appeal, cannot raise this at recognition of judgment stage, raise it only at appeal.
4) Inconsistent Judgments: a later judgment can be enforced even though it is inconsistent with a valid earlier one.
If 2 or more inconsistent judgments, last one in time gets enforced.
Recognition/Enforcement of Foreign Country Judgments
Two part commity test:
1) Jurisdiction must have been proper and
2) Fair procedures must have been used in that proceeding
In determining whether country meets the test, you use the recognizing state law. Remember rendering state law is what you use for full faith and credit of sister states, here use recognizing state law.
You aren’t looking at specific NY law, but you’re really talking about due process – was jurisdiction fair, did it meet the fairness test, was there enough contacts, etc.
Most of the time you will recognize the foreign country judgment, just make sure you go through the analysis of why.
Family Law Judgment
Focus on recognition/ enforcement of family law decree and closely consider jurisdiction.
3 types of judgments:
1) Termination of the marital status (Divorce decree itself)
2) Property Awards (alimony and child support)
3) Child Custody awards
Jurisdiction is primary part of answer, but different kind of jurisdiction for each. Need to first know what kind of judgment it is or some combination. Because the judgment may be all three, then you may have to deal with different kinds of jurisdiction in your answer.
Types of Divorce Decree
1) Ex parte divorce: only 1 of the spouses is domiciled where the divorce is granted.
This is valid
2) Bilateral divorce: 1 party is domiciled where the divorce is granted and both the spouses are subject to personal jurisdiction there. Don’t need both spouses domiciled where divorce is granted.
This is valid
3) Consent divorce: both spouses want to get out of the marriage and go somewhere together to get it – “quicky divorce”
This is not valid – must have 1 spouse domiciled where the divorce is granted
Divorce Decree Burden of Proof
Attacker bears burden of proof BUT in meeting the burden the attacker can introduce any relevant evidence whatever – even if evidence came about after the divorce is granted, can use evidence to attack validity of the divorce.
Can use ANY evidence to attack the underlying validity of the divorce, even evidence occurring after the grant of the divorce
Who can attack a divorce decree for lack of subject matter jurisdiction?
Any interested person who is not estopped
Interested person = someone closely involved with the marriage
Strangers to the marriage cannot attack it
Often interested people are estopped from attacking the validity of the divorce
If any of the following situations exist, the plaintiff is estopped:
1) Where the attacker was subject to personal jurisdiction in the earlier proceeding, he cannot attack the divorce (so spouse in bilateral divorce is estopped)
2) Where attacker played a meaningful role in the granting of the divorce even if wasn’t subject to personal jurisdiction
3) Anyone in privity with the parties to the divorce
This includes children
4) Spouse remarried in reliance on the earlier divorce decree being valid can not later attack the divorce
When you are faced with a divorce decree on the bar, make sure you address whether there was proper subject matter jurisdiction (valid domicile of at least one spouse) and whether the attacker is an interested, not estopped, person
Divorce Property Awards
Court granting the alimony or child support must have personal jurisdiction over the spouse who’s property rights are at issue/being determined
- Ex parte divorce means don’t have that jurisdiction and cannot determine alimony and child support
Divorce Child Custody Decree
There is valid jurisdiction for child custody if the state is the child’s home state
Divisible Divorce Decree
If you have all three kind of decrees and some parts are good and some aren’t.
Allow the good parts, not the bad.
These are quite common on the exam.
Four situations for the exam:
1) Domicile of the decedent is used to choose the law to be applied intestate succession of personal property – look at where the person died was domiciled at death to determine what law to use
Note this is just for personal property! For land, location of the land will be determinative.
2) Domicile at death determines which state gets the 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
Domicile of Choice
To require a domicile of choice, a person must have legal capacity. This is a term of art not to be confused with legal capacity in other areas of the law.
Here, in a domicile of choice context, it just means the ability to fend for yourself. If you do not have sufficient capacity to get a domicile of choice then you will be assigned a domicile by operation of law.
How do you acquire a domicile of choice?
1) Physical presence in that state and
Can be for a very short period of time – if there with intent, you have the domicile and don’t lose it until you get another domicile
2) Intent to remain there for the foreseeable future (no set time plan to leave)
What if you proclaim your domicile to be one state and the facts point to another state?
Actions speak louder than words, what you do counts on domicile and not just what you say
How many domiciles can you have?
Just 1. 2 courts can disagree on where that is though.
Once obtained, a domicile of choice is kept until another one is acquired.
If you don’t have the intent and presence in another place, then you keep the domicile you had before. Doesn’t matter if you’ve left the prior state where you were domiciled with no intent to return, it still remains your domicile until you get a new one.
Motive for going to another state to acquire domicile is irrelevant.
Domicile by Operation of Law
1) When you are dealing with a child
If child is old enough to fend for itself then can get a domicile of choice but if not then it is assigned a domicile by operation law and it is the domicile of the parents
If the parents are divorced, it is the parent with custody
2) Domicile of a married woman
Now, the domicile is the one she chooses but until recently the married woman had the domicile of her husband
Use the 2 part test to determine her domicile but tell the court that until recently it was the domicile of her husband
Choice of Law: Constitutional Limitation
Two Constitutional Provisions: Due process and Full Faith and Credit Clause must be satisfied
The court says the test of whether a choice of law violates the clauses is the same. Test:
The state chosen must have a significant contact or contacts with the parties or the subject matter of the litigation which give it a legitimate interest in seeing its law applied (Remember: significant contact giving legitimate interest)
Say on the exam that the choice of law must meet the constitutional test, what the test is, and that the choice of law does meet the test.
Interest in welfare of the state’s residents = legitimate interest
Don’t have to weigh the interests of the states, so long as the state has a significant contact and legitimate interest then that state can apply its own law now matter how strong the contacts/interest of another state might be
Choice of Law: Constitutional Limitation: Situations that do NOT meet the test
1) If after the event in question someone moves to a new state and that is the ONLY contact with that state, then it would be unconstitutional to apply that state’s law
Can’t just move to a state after an accident to try and sue someone with that state’s law
2) If the only contact the state has with the litigation is that the suit is brought there, it would be unconstitutional to apply that state’s law.
NOTE: other than these two situations, expect the choice of law to meet the constitutional test of significant contact and legitimate interest
Vested Rights Approach to Choice of Law
The traditional system, also called the “Territorial Approach.” It was the only system used until 1960
Law to be applied is the law of the place where the rights of the plaintiff vested.
This depends on the type of action:
In torts, the instant the cause of action happens is the instant that the rights are vested. So, the vested rights test would say to apply the law of the place where the injury occurred (“law of the place of the wrong”). This is the place of the injury, not where other negligence leading to tort occurred
In contracts, the rights under a contract vest at the moment the contract is made – apply law of the place of making the contract.
There was a rule for every area of the law – pick the rule for the area of law and that rule told you what law to apply. Place of the injury in torts, place of making for contract validity, etc. These rules were all territorial so once you found the rule it pointed to a single place (place of injury/making/etc)
These were pretty easy to use, gave relative predictability, and easy to apply BUT the rule often meant you were applying the rule of a state with absolutely no policy interest with the outcome of the litigation.
Interest Analysis Approach to Choice of Law: Babcock Test
1) List the factual contact with each state
Ex: for auto, say that the car was registered in state, case brought there, accident there, etc
2) Note the different state laws at issue
Ex: note Ontario has a guest statement and NY has no statute, allowing the plaintiff to sue
3) Find out the policies underlying each state’s law
Ex: Why does Ontario have a guest statute and why doesn’t NY have it? Look at the state reporters and legislative history for explanation of the rules
On the exam, when looking for policy of the law, look at whether the law is trying to protect plaintiffs or defendants. For the exam, that’s the only policy you need to know – state those policies.
4) ***Take the facts and relate them to the policies to see if the state has an interest in having its law applied
5) Apply the law of the state with the greatest governmental interest in the outcome
Interest Analysis Approach to Choice of Law: Babcock Test: Characterizing the Interest
1) False Conflict
If only 1 state has an interest in the litigation, then it is a false conflict. If you have that, apply the law of the state with the interest in having its law applied to the litigation.
2) True conflict:
A true conflict exists when 2 or more of the states involved have an interest in the litigation and one of them is the forum. Start out with a presumption that you apply the law of the forum state unless the interest of the other state is much greater – overriding reason to use the other state’s law
3) Disinterested Forum
When two states have an interest in applying their law to the case but neither is the forum state.
The disinterested state can:
a) Court may just apply the law of the state that is closest to the forum state’s law – most NY courts would do this
b) Look at the laws of the interested states and choose the one that is better – apply the better law, some NY states do this
4) Unprovided for Case. No state has an interest in applying their law to the case
Courts will usually just apply NY law
Interest Analysis Approach: Torts
Babcock + Numeier
1) Numeier Rule One:
When the plaintiff and defendant are domiciled in the same state, that state’s law will be applied. This is called the same domicile rule. Same domicile rule – makes no difference where the accident occurred if both parties are from the same state
2) Neumeier Rule Two:
When the plaintiff and 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. If it does not help its citizens, go to rule three.
3) Neumeier Rule Three:
When the plaintiff and defendant are domiciled in different jurisdictions and the law of the place of the state where the accident occurred does not help its citizens you still apply the law of the place where the injury occurred unless the other jurisdiction has a greater interest in the outcome.
This is the “Unprovided for case”
Neumeier in a Nutshell: Apply the law of the place of the injury UNLESS both parties live some place else.
Assume the rules will apply to any tort situation.
Interest Analysis: Torts: Loss Distribution
Most torts are loss distribution rules, those that determine which party will bear the loss.
Apply the Babcock/Neumeier analysis to all loss distribution rules.
Guest statutes, vicarious liability rules, immunity rules, etc are loss distribution rules
Interest Analysis: Torts: Rules Regulating Conduct
For all rules regulating conduct, apply the law of the place of the injury
Rules regulating conduct are sometimes called rules of the road
Choice of Law: Real Property
Law of the situs of the property governs, law of the state where the property is located.
Old vested rights rule continues in all jurisdictions including NY. There is no interest analysis for real property
Choice of Law: Personal Property
For every situation but one, use the same situs rule as for real property – law of the place of the personal property location is chosen
BUT, if the issue is the passing of personal property by intestate succession then the state chosen is the state of the domicile of the deceased at death
Choice of Law: Inheritance
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.
Choice of Law: Family Law
Choose law where the marriage was celebrated.
General Rule: If a marriage is valid where performed then it is valid everywhere. If invalid where performed, then invalid everywhere.
Exception: If marriage would violate the strong public policy of the state, it may not be recognized even if it is valid where it was performed. So far no example of where a marriage would be legal in another state but so violate the public policy of NY that it would not be recognized in NY.
Exception: Although marriages generally are void that are where performed are void everywhere, a marriage that is void because it fails to comply with some technical requirement of state where performed can still be recognized in NY if it would have complied with the NY rules
Divorces are governed by the law of the plaintiff’s domicile.
Defenses of Choice of Law: Law Chosen is Procedural
Law chosen is procedural, not substantive – this is the only defense with any real importance today
Forum will not apply the procedural law of another state, it will only apply that state’s substantive law
Procedural = rules of civil procedure and the following are procedure so forum will use its own rules:
1) Burden of proof – NY use one rule because it is procedural
But if burden of proof is “outcome determinative,” could change outcome of the case, then it should be considered substantive. That is very rare so consider burden of proof procedural
2) Statute of Limitations
Exception: NY Borrowing Statute
Borrowing statute: Borrow and apply the shorter statute of limitations of state where the cause of action arose – purpose is to prevent forum shopping of plaintiffs
BUT NY will not apply the borrowing statute to a NY resident who is the plaintiff – don’t hurt a NY plaintiff!
3) Ability to bring counterclaims
What is Substantive Law for choice of law?
1) Contributory or Comparative Negligence – don’t automatically use the forum rules but look to choice of law rules
2) Statute of Frauds
3) Parol Evidence Rule
4) Contribution among tortfeasors
5) Direct Action Statutes
These are statutes that let plaintiffs sue the insurance companies directly and don’t have to go after the negligent defendant – very few states have these statutes and most consider them procedural but NY regards Direct Action Statutes as substantive so they may be chosen and applied in NY courts through choice of law
Other Defenses of Choice of Law
The law that is against the public policy of the forum state (violate the fundamental principle of justice of the forum state)
3) The law that is a penal law
Applies only to offenses against the public = civil fine or criminal judgment
Use of State Law in Federal Courts
Federal court sitting in diversity making a choice of law must use the choice of law of the state in which it is sitting
Notice and Proof of Foreign Law
Courts today will take judicial notice of a sister state’s law but the law of a foreign country must be pleaded and proved just like any other fact in the case
If you can’t find and prove the foreign country’s law then the court will just apply NY law so that no injustice is created
Choice of Law: Interest Analysis: Contracts: NY Special Statute on Large Contracts
o If a contract is for not less than $250,000, the contract can choose NY law even if it has no connection to NY at all
o If a contract is for not less than $1 million then the parties can also say that NY may be the forum. If they do this, the court is prohibited from dismissing based on forum non conveniens.
Choice of Law: Interest Analysis: Contracts: Choice of law if parties do NOT choose the law in the contract:
NY has abandoned the old vested rights rule for contracts and now use interest analysis (Babcock 5 steps).
BUT Note: When interest analysis is applied in NY to contracts we call the state chosen the state with the most significant relationship to the contract
Choice of Law: Interest Analysis: Contracts: 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. Special rule overrides any other analysis – state where insurance contract is written is the state with the most contract.
Choice of Law: Interest Analysis: Contracts: Ability of the parties to choose the law in the contract
1) Parties can always choose the law in the contract for matters of contract construction. Any law can be chosen for construction matters.
2) Parties can also choose the law to govern matters of contract validity provided three things exist:
a) Choice can’t be contrary to a state with 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, that is it is not a contract of adhesion (printed take it or leave it contract imposed on a weaker party by a stronger one)
If you satisfy those requirements, you can choose the law to govern contract validity.

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