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CONFLICT OF LAWS Not likely to be tested on this bar exam.

am. But, often combined with Torts and Family Law Three Major Topics (order of importance) A. Choice of Law B. Recognition and Enforcement of Judgments C. Domicile Choice of Law A. Constitutional Limitations 1. Test for Due Process and Full Faith and Credit satisfied if: a) The state chosen must have significant contact with the parties or subject matter of the litigation, giving legitimate interest in seeing its law applied. (1) e.g. state X can validly apply its own law to determine Ds liability, even though D, who worked in state X, was a resident of state Y and accident happened in state Y b/c state X has significant contact giving a legitimate interest. (2) e.g. California v. Hyatt: Hyatt moves from CA to NV. CA suing Hyatt for tax fraud. Hyatt claims CA committed torts, violating his rights in NV. CA law immunizes employees from torts. Nevada court does not. Nevada chose Nevada law over California law - did not violate the Constitutional standard by failing to apply CA law b/c NV had a legitimate interest in seeing its own law applied. 2. Two Situations that Dont Meet Test: a) If someone moves to a state, and the move is the only contact --> unconstitutional to apply the new states law. b) If only contact with parties or litigation is to sue in that state --> unconstitutional to apply the new states law. B. Vested Rights (Territorial) Approach to Choice of Law 1. Law to apply is the law where Ps rights were vested. 2.Torts: apply the law of the place where injury occurred 3.Contracts: apply the law of the place of making of contract 4.All rules territorial (pointing to a single place) a)Problem: vested rights rules may point to a state that has absolutely no policy interest in the outcome of litigation C. Interest Analysis Approach (focuses on Policy Interest) 1. 5 Step Babcock Approach (1) List the Factual Contacts w/ each state (2) Note the different state law in issue (3) Find out the policies underlying each states law -- which party does each law favor. Does party being favored by a state law reside in the state? If so, state has an interest. (4) Take 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 governmental interest in the outcome. (a) False conflict (where only one state has an interest in its law being applied) ---> Apply law of the only jurisdiction with an interest in the outcome (b) True Conflict (where 2 or more states have interest in litigation, and one is the forum state ---> law of forum state, unless interest of other state is much greater. (c) Disinterested Forum (where 2 or more states have an interest in having their law applied and forum in not one of them) ---> New York law OR better law (d) Unprovided-For case (where no state has an interest in providing its own law)

I.

---> New York law. Areas of Law a) Torts: (1) Use 5-step Babcock test PLUS Nuemeier Rule: Apply the law of the place of the injury unless both parties live some place else (and the other jurisdiction has a greater interest in the outcome) (2) Loss Distribution: Apply Babcock/Nuemeier to all loss distribution rules (3) Rules Regulating Conduct (rules of the road): Apply law of place of injury b) Contracts: (1) Parties can always choose law in the K for matters of K contstruction (2) Parties can always choose law in the K for K validity provided: (a) Choice cant be contrary to public policy of a state with a greater interest than the chosen state (b) Choice must reflect substantial relationship to the parties or the transaction; and (c) Choice must be free of duress - cant be contract of adhesion (3) NY Special Statute on Large Contracts (a) If K is for $250K+ --> parties can choose NY law, even w/ no substantial relationship (b) If K is for $1million+ --> and parties chose NY law in contract, parties may also specify NY to be the forum, and courts are prohibited from dismissing under forum non conveniens. (4) Silent about choice of law --> state chosen is the state with the most significant relationship to the contract (5) Insurance Ks --> all issues regarding rights and duties under insurance policy is determined by state where policy is written. c) Real Property - Law of Situs (where property is located) governs d) Personal Property - Situs of personal property (1) Exception: if personal property passed by Intestate Succession ---> state of deads domicile at death e) Inheritance - Non NY domiciliary can choose NY law in a will to apply to the disposition of New York assets f) Family Law: If marriage is valid where performed, valid everywhere (1) Exception: If marriage violates strong public policy of a state, then it may not be recognized even though it was valid where performed. (NY is a liberal standard - gay marriage is recognized) (2) Marriages are void where performed are void everywhere, but if failed to comply with some technical requirement of state, still recognized in NY if it complies with NY rule. (3) Divorces are governed by the law of the Ps domicile. D. Defenses to Choice of Law 1. That the law chosen is procedural, not substantive - cant apply procedural laws of other states. a)Procedural = regarding burden of proof or S/L (1) NY CPLR Exception: borrowing statute - borrows and applies the shorter statute of the state where cause of action arose. BUT, NY will not apply borrowing statute if P is a NY domiciliary. b) Substantive = (1) contributory or comparative negligence (2) statute of frauds (3) parole evidence rule (4) contribution among tortfeasers (5) direct action statutes - lets P sue insurance company directly 2.

2.That the law is against the Public Policy of the Forum State (law must be really offensive for this to apply) 3.That the law is a Penal Law (offenses against the public: criminal judgement or civil fine) E. Use Of State Law in Federal Courts - if federal court sitting in diversity, may choose state laws F.Notice and Proof of Foreign Law 1.Law of foreign country is a fact which must be pleaded and proved. If foreign law cant be determined, New York law will apply, so long as there is no injustice. II. Recognition and Enforcement of Judgements A. Rendering State: state handing down judgment B. Recognizing State: state called upon to recognize and enforce the judgment C. Sister State-Judgments 1. can be recognized if they meet 2 REQS: a) No valid defenses apply; and b) Judgment must meet Full-Faith and Credit requirements (1) Valid jurisdiction in the rendering court over both parties and the subject matter of the litigation (2) Judgment was final (not final if modifiable, but will still usually be enforced under principles of comity) (a) Modifiable judgments: alimony and child support. (3) The judgment must have been rendered on the Merits (default and consent judgments) 2. Defenses (almost never work, but talk about them) a) Penal judgment - where winner is the government (courts will not enforce) b) Bribing of a judge 3. NOT Defenses a)Tax judgment b) Violation of Public Policy c)Mistakes by Judge - only remedy is to appeal d) Inconsistent Judgements (1) Rule of Thumb - Enforce the last judgment in time. D. Foreign Country Judgments 1. Can be recognized if 2-Part Comity Test is met: a) Jurisdiction must have been proper; and b) Fair Procedures must have been used in the foreign country proceeding 2. Use recognizing states law to determine whether its met test: were there enough contacts with the parties or litigation to make jurisdiction fair? E. Family Law Judgements 1.Divorce Decree a)Valid divorce requires proper subject matter jurisdiction = requires that one of the two spouses be domiciled in the state rendering the divorce b) Three types of divorce (1) Ex Parte - only 1 of the spouses is validly domiciled where the divorce is granted (2) Bilateral Divorce - one of the spouses is validly domiciled where divorce is granted, and both spouses are subject to personal jurisdiction (3) Consent Divorce - both want out of marriage and go together somewhere to get it. (Mexican quickie not valid b/c no valid domicile) c)Procedural Matters on Divorces (1) Attacker bears burden of proof and can introduce any relevant evidence, even if it came into existence after divorce (2) Any interested person who is not estopped can attack a divorce

(a)if attacker subject to personal jurisdiction in earlier proceeding (spouse in bilateral divorce) --> cant attack (b) if attacker NOT subject to PJ, but played meaningful role in granting divorce --> cant attack (c)person in privity with a party to divorce (children) --> cant attack (d) spouse who has remarried on reliance of divorce --> cant attack 2.Property Awards (alimony, child support) a)Requirement: PJ over the spouse whose property rights are in issue (1) e.g. L wen to Vegas and obtained Ex Parte divorce, and court awarded her alimony and child support. Divorce is valid, but not alimony and child support. 3.Child Custody a)Requirement: PJ over child (the childs home state) 4.Divisible Divorce Decree Doctrine a)If decree has some parts that are good, and some that are bad, you keep the good and ignore the rest III. Domicile A. Four Ways itll appear on Exam 1.Domicile of 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 important when applying NY choice of law rules B. Domicile of Choice 1. Legal capacity necessary to make domicile of choice 2. Two-Part Test to establish domicile of choice: a)Physical Presence (can be for a short time) b) Intent to remain for a foreseeable future that is indefinite (1) Actions speak louder than words: what you do counts more than what you say for intent (2) Motive for going to another state to acquire domicile is irrelevant 3. Can only have 1 domicile C. Domicile by Operation of Law - for those w/ no capacity 1. Domicile of Child - if no legal capacity, child will have domicile of parent who has physical custody 2. Domicile of Married Woman used to be her husbands. Not anymore.