New York Bar Exam Preparation Condensed Revision Notes for Conflict of Laws
CONFLICT OF LAWS
- RENDERING JURIS. SISTER STATE OR FOREIGN COUNTRY?
NO ANALYSIS. ON EXAM = SISTER STATE
- A. SISTER STATE JUDG/NTS: SOURCE OF OBLIG. TO RECOG. JUDG/NT = CONSITUTIONAL (FULL FAITH & CREDIT)à & APPLY TO FED. + STATE COURTS
STEP 1: REQ. OF FAITH & CRED. : REQ 1à JURIS: RULE- RENDERING STATE àJURIS. OVER PTIES & SM. EXCEPT: WHEN ISSUE FULLY & FAIRLY LITIG. = JURIS. DETERM. ENTITLED TO FULL FAITH & CREDIT. ( IF CHALLENGE IN RENDERING STATE, CANNOT TRY TO CHALLENGE JURIS. AGAIN IN RECOG. STATE). REQ2: MERITSà JUDG/NT ENTERED BY RENDERING STATE MUST’VE BEEN ON MERITS. E.G NOT ON MERITSà pj, MISJOINDER, DEMURRER W/O PREJUDICE (12(b)(6) FAILURE TO STATE CLAIM à DISMISSED W/O PREJUDICE). BUT: CONSENT JUDG/NTS AFTER SETTLEMENT = ON THE MERITS FOR PUPROSES OF RECOGNITION. REQ3: FINALITYà JUDG/NT BY RENDER. COURT =FINAL JUDG/NTà JUDG/NT ON APPEAL = NOT FINAL. } REQS. EVALUATED USING L OF RENDER. STATE.
STEP2: VALID DEFENSESà 1) PENAL JUDG.NTS (=PUNISHES OFFENSE AG/NST PUBLIC)= NOT ENTITLED TO FULL FAITH & CREDIT; E.G. P STATE BROUGHT SUIT (P IN SUIT THAT LED TO JUDG/NT WAS STATE 2)EXTRINSIC FRAUD (FRAUD = NOT CORRECTED W/N NORMAL OPERATION OF TRIAL OR JUDIC. PROCEED. à IF JUDGE WAS BRIBED. IF WITNESS=INSUFFICIENT). INVALID DEFENSES( BUT ATTRACTIVE) 1) PUBLIC POLICY 2) MISTAKES (IF MADE=SHOULD/VE BEEN CHALLENGED IN APPEAL IN RENDERING STATE).
- FOREIGN JUDG/NTS
IF RENDER. COURT= FOREIGN COUNTRY à SOURCE OF OBLIG. TO RECOG. JUDG/NT= COMITY OR TREATY. UNDER COMITY, RECOG. COURT à DISCRETION TO DECIDE WHETHER FOREIGN JUDG/NT SHOULD BE RECOG. à FULL FAITH & CREDIT WILL BE CONSIDERED TO GUIDE DISCRETION BUT = 2 Q: FOREIGN COURTà JURIS? à EVEN IF JURIS. RECOG. IN FOREIGN COUNTRY & PROCEDURES COMPARED W FOREIGN COUNT’S STNDRDSà FOREIGN JUDG/NT MAY STILL NOT COMPORT W DUE PROCESS IN THE V.S. à MAY NOT RECOGNISE. 2. WWERE PROCEDURES FAIR? ≠ LOOK AT IF ISSUE OF JURIS. FULLY+FAIRLY LITIG. , BUT WILL SEE WHETHER CASE COMPLIED W V.S. CONCEPTS OF DUE PROCESS AND JURIS. COURTS WILL SEE IF FOREIGN PROCEDURES COMPLIED W US DUE PROCESS PROCEDURES.
CHOICE OF LAW: WHEN 1) LAWSUIT INVOLV. FACTUAL CONNECTS W MULTIPLE STATES (BUT NO JUDG/NT). AND 2) MULTIPLE STATES WILL HAVE DIFFERENT LAWS LEADING TO DIFF RESULTS.
GOVERNING LAW= LAW SELECTED BY FORUM COURT ACC. TO ITS CHOICE OF LAW APPROACH (ASSUM. NO APPLIC, CONSTIITUT. OR STAT. RIGHTS) EXCEPT: 1. DIVERSITY CASES IN FED. COURT = FED. COURT APPLIES STATE IN WHICH IT SITS ( IF NY FED. COURT= NY CHOICE OF L); 2. TRANSFERRED DIIVERSITY CASES à WHEN DIVERSITY TRANSFERRED W/N FED. SYSTEM= CHOICE OF LAW OF TRANSFEROR COURT (ORIGINAL COURT). RESTRICTIONS: CONSTITUT: 1. DUE PROCESS & FULL FAITH & CREDITà CANNOT APPLY CHOICE OF LAW OF STATE THAT HAS NO CONTACT / INTEREST IN LITIG. 2. IF FORUM HAS STATUTE OF CHOICE OF L= FOLLOW STATUTE.
NY APPROACHà INTEREST-ANALYSIS APPROACH UNLESS TORT CASE. : 1. TRADITIONAL à SEE P. 10
KEY TO NY APPROACH TO CHOICE OF LAW= FOCUS ON POLICY RATHER THAN FACTS.
NY ASKS SEE P. 11 ≠ P AND D TO GET TOGETHER & MAKE FALSE CLAIM (COLLUSION) APPLY NY LAW IF NY HAS LEGIT. INTEREST IN OUTCOME (CONCERNS NY P’S)
TRUE CONFLICTS à SEE P. 11.
STRUCTURE OF NY CHOICE OF L ANSWER:
STOCK LANGUAGE PARAG 1: “THE ISSUES PRESENTED IN WHICH STATE’S LAW WILL GOVERN THE OUTCOME OF THIS LITIGATION. THE GOVERNING LAWWILL BE SELECTED BY THE FORUM COURT USING NY’S INTEREST ANALYSIS APPROACH TO CHOICE OF LAW”
PAR2: “ UNDER NY’S APPROACH, COURT WILL CONSIDER WHICH STATES HAVE LEGIT. INTEREST IN OUTCOME OF LITIG. THE COURT WILL APPLY NY LAW AS LONG AS IT HAS A LEGIT. INTEREST. IF NY HAS NO LEGIT. INTEREST, CPURT WILL APPLY LAW OF ANOTHER INTERESTED STATE”
Par:3 (ANALYSIS STEP 1: DISCUSS STATES W LEGIT. INTERESTS ; 2. CHARACTERISE CONFLICT (FALSEà1 STATE LEGIT INTEREST; TRUEà 2+STATES LEGIT. INTEREST); 3. CHOOSE GOV. LAW BASED ON TYPE ( FALSE= APPLY LAW OF INTERESTED STATE; TRUE: IF NY INTERESTED=NY); 4. APPLY GOV. LAW TO DETERMINE RESULT
APPLICATIONS TO SPECIF. SUBSTANT. AREAS:
APPLY NEUMEIER RULES AND EXCEPTIONS IF CHOICE OF LAW ISSUES INVOLV. TORT CASEà NEED TO MENTION CASE NAME “NEUMEIER” = SUBSTITUTE TO FOLLOWING IN PAR2: “THIS CASE INVOLVES A CHOICE OF LAW QUUESTION RELATING TO TORTS. THE NEW YORK COURT WILL THEREFORE APPLY THE NEUMEIER RULES TO DETERMINE THE GOVERNING LAW”à RULE1=IF PTIES DOMICILED IN SAME STATE, APPLY LAW OF COMMON DOMICILE à APPLIES TO TORT ISSUES RE LOSS DISTRIB. à E.G. 1. LOSS OF LIMITATIONS (WROONGFUL DEATH ACTS, DAMAGE CAPS);2 IMMUNITIES (CHARITABLE, INTRAFAMILY, GUEST STATUTES); 3. VICARIOUS LIABILITY. EXCEPT: IF STRICTLY CONDUCT REGULATION= LAW OF PLACE OF INJURY. RULE2: IF PTIES DOMICILED IN DIFF. STATES = LAW OF PLACE ON INJURY. EXCEPT: IF STATE OF PLACE OF INJURY = NO LEGIT. INTEREST IN CASEà LAW OF INTEREST STATE APPLIED INSTEAD. (IF NY=NY).
NEUMEIIER IN MULTIPLE PTIES (E.G. COMPLEX LITIGATION). RULE: NEUMEIER MUST BE APPLIED SEPARATELY FOR EACH P VIS-À-VIS EACH D.
CONTRACTS
ONLY USE ANALYSIS IF CHOICE OF LAW PROVISION IN THE K, IF NOT = REGULAR BABCOCK RULE.
CHOICE OF LAW PROVISIONà ENFORCED IF VALID & EXPRESS. IMPACT= IF ENFORCEDà PROVISION DISPLACES CHOICE OF LAW ANALYSIS THAT COURT WOULD OOTHERWISE PERFORM. IF REJECTEDà COURT CONDUCT CHOICE OF LAW ANALYSIS.
APPLICATIONS: INVALID OF PROVISION INCLUDED W/O TRUE MUTUAL ASSENT; 2. LAW SELECTED≠ REASONABLE RELATIONSHIP TO K. EXCEPT1: IF K FOR AT LEAST $250K, PTIES MAY CHOOSE NY EVEN IF K =NO CONNECTION TO NY.; EXCEPT 2: IF K =AT LEAST $1MLN = PTIES MAY CHOOSE NY LAW & INCLUDE CLAUSE NY=FORUM. NY COURTS MUST ENFORCE CLAUSE& ARE PROHIBITED FROM DISMISSING BASED ON FORUM NON CONVENIENS (EVEN IF PTIES NOT FROM NY, K NOT ENTERED INTO IN NY, NO PERFORMANCE TO OCCUR IN NY).
IF NO CHOICE OF LAW PROVISION / INVALID à COURT WILL CHOOSE ACC. TO INTEREST ANALYSIS (UNDER NEUMEIER), EXCEPT: AUTO INSURANCE Kà IN NY ALL ISSUES RE RIGHTS & DUTIES UNDER AUTO INSURANCE POLICY GOV. BY STATE WHERE POLICY WAS WRITTEN.
PROPERTY
Nyà CONTINUES TRADITIONAL RULES.
IMMOVABLE (REAL PROPTY)à LAW OF SITUS (PLACE PROPERTY IS)
MOVABLE (PERSONAL) PROP/TYà IF INTER VIVOS T/O=LAW OF SITUS @ TIME OF T/O; IF RE INHERRITANCE = LAW OD DECEDENT’S DOMICILE @ DATE OF DECEDENT’S DATE (TO APPLY TO DEEDS & WILLS)
FAMILY LAW
MARRIAGE: IF VALID WHERE PERFORMED=VALID EVERYWHERE. EXCEPT: WHEN DOMICILIARIES OF 1 STATE TEMPORARILY TO A/THER STATE TO PERFORM MARRIAGE THAT VIOLATESPROHIBITORY RULE IN THEIR HOME STATE= STATE OF DOMICILE ≠ RECOGNISE MARRIAGE. PROHIB. RULE= STRONG PUBLIC POLICY RE MARRIAGE ( NOT DIRECTORY RULEàADMIN IN NATURE). NY = TOLERANT DESPITE RULEàRECOGNISE.
DIVORCE: FORUM = OWN RULES. B/C STATE HAS INTERESTà TO ACQUIRE JURIS, AT LEAST 1 MUST BE DOMICILED IN STATE.
LEGITIMACY:
#1: OF CHILD-GOVERNED BY LAW OF MOTHER’S DOMICILE @ TIME OF BIRTH.
#2. VALIDITY OF SUBSEQ. ACTS OF LEGITIMATION = GOVERNED BY LAW OF FATHER’S DOMICILE.
DEFENSES
#1: PUBLIC POLICY à FORUM COURT ≠ APPLY LAW AG/NST OWN FUNDAMENTAL PUBLIC POLICY. CAVEAT: THIS DEFENSE IS NOT GOOD LAW WHEN RECOG. OF JUDG/NTS
#2. PROCEDURAL RULES à REG/LESS OF OUTCOME OF CHOICE OF L ANALYSIS= FORUMM ALWAYS APPLIES ITS OWN (FORUM COURT’S) PROCEDURAL RULES. (consistent w erie doctrine)
STATS OF LIMITATIONS
RULE: HISTORICALL AS PROCEDURAL BY NY COURTS.(NY APPLIES NY RULES AS TO SOL (SOL=PROCEDURAL RULE). 2 EXCEPTS: 1.BORROWING STATUTESà COURT LOOKS @ FORUM LIMITATIONS PERIOD & FOREIGN LIMIT. PERIOD & THEN APPLY SHORTER PERIOD. EXCEPTION TO EXCEPTION: NY ≠APPLY BORROWING STATUTE IF P IS FROM NY. ; 2. LIMIT. THAT CONDITION SUBSTANT. RIGHT(WHEN SOL NOT TREATED AS PROCEDURAL RULE): IF NORMAL CHOICE OF L ANALYSIS LEADS TO APPLICATION OF FOREGN STAT. THAT CREATES SUBSTANT. RIGHTà APPLY ENTIRE STATUTE.
DOMICILE
NEVER Q ON ITS OWN. INTEREST OF THE STATE CONNECTED TO WHETHER STATE IS DOMICILE OF 1 OF PTIES
DOMICILE BY CHOICE
RULE: INDIVIDUAL W DOMICILE CAPACITY ACQUIRES DOMICILE WHEN: 1. PHYSICAL PRESENCE IN STATE; 2. INTENT TO REMAIN IN STATE INDEFINITELY
DOMICILE BY OPERATION OF LAW:
RULE: INDIVID. WHO LACKS DOMICILE CAPACITY à ASSIGNED 1 BY LAW.
CAT 1: CHILDREN à RULE1. NEWBORNS=DOMICILE OF PARENTS, RULE2= IN CASE OF DIVORCE = CUSTODIAL PARENT
CAT2: MENTAL INCOMPETENTS: RULE 1: ASSIGNED OF HIS PARENTS; RULE 2: IF INCOMPETENT AFTER ACQUIRING DOMICILE BY CHOICE=RETAINS CHOSEN DOMICILE.
