纽约州冲突法 NEW YORK CONFLICTS

1、NEW YORK CONFLICTSTHE CONFLICTS ROAD MAP, or here's where we're heading.1.Recognition and Enforcement of Judgments2.Domicile3. Choice of Law1 RECOGNITION AND ENFORCEMENT OF JUDGMENTSThe state handing down the judgment is the rendering state. The state called upon to recognize and enforce the

2、 judgment is the recognizing state.1.1 SISTER STATE JUDGMENTS# Two-Part Test:(a) Judgement must meet 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.² Modifiable

3、judgment is not a final judgment and gets no full faith and credits, can only be enforced under the principle of comity, except future alimony and child support (Judgments for amounts already accrued and in arrears are considered final judgements).-hypo: the alimony and child support is final judgme

4、nt , but only for the one year accrued but not paid.(3) Judgment must have been rendered on the merits, including default judgment and consent judgment. ² A judgment for the defendant that does not involve substance of Ps claim is not on the merits.(b) No Valid Defense(1) Valid defense include

5、penal judgment and extrinsic fraud (e.g., bribing judge), court will not enforce this kind of judgement² Penal judgment is Judgment rendered for an offense against the public. -E.g: criminal sanction or civil fine. Winner must be the government, not a private person or entity² Intrinsic fr

6、aud is fraud that could have been dealt with during the litigation and it is NOT a good defense to full faith and credit, perjury.² Extrinsic fraud if fraud that could not have been coped with in the earlier trial, e.g., corrupt judge.(2) “Non-defenses”: Wont work but you must talk about them i

7、f they appear in the facts . a) tax judgment (are penal, TODAY OKAY)b) Based on a cause of action that violates forum's public policy , c) mistakes by the judge in the earlier trial,i. The remedy for such mistakes is to appeal the incorrect judgment, it is too late to raise the issue at the reco

8、gnition of judgements stage.d) inconsistent judgments i. later judgement can be enforced even though it is inconsistent with a valid earlier one.enforce the last judgment in time.1.2 FOREIGN COUNTRY JUDGMENTS# To enforce a foreign country judgment, a two-part comity test need to be satisfied:1. Juri

9、sdiction must have been proper, and2. Fair procedures must have been used in the foreign country proceeding-recognizing state's lawv To determine whether the foreign country judgment meets this test use recognizing states law, and this means that states ideas of due process: Were there enough co

10、ntacts with the litigation or the parties to make jurisdiction fair1.3 SPECIAL SITUATION: FAMILY LAW JUDGMENTS(a) Recognition and enforcement of family law judgments involves consideration of jurisdiction, both subject-matter and personal. v Three types of judgments, each with its own jurisdictional

11、 requirements:a. The termination of the marital status, that is, the divorce decreeb. Property awards, such as alimony and child supportc. Child custody awards(1) Divorce: proper subject-matter jurisdiction and at least one spouse is domiciled in the state rendering the divorce. ² Ex-parte divo

12、rce: only one spouse is validly domiciled where the divorce is granted,ü the other spouse is neither domiciled nor subject to personal jurisdiction there. Okay² Bi-lateral divorce: only one spouse is validly domiciled where the divorce is granted, and both spouses are subject to personal j

13、urisdiction there. ² Consent divorce, where both want out of the marriage and go together somewhere to get it (i.e., the “quickie” divorce)ànot valid. Because no valid domicile of either.ü So for any kind of divorce to be valid there must be a valid domicile of at one of the parties t

14、o give the necessary subject-matter jurisdiction# PROCEDURAL MATTERS ON DIVORCES² Burden of proof: the attacker bears the burden of proof and can introduce any relevant evidence whatever, even if the evidence came into existence after the divorce was granted.² Any interested person who is

15、not estopped can attack a divorce decree for lack of subject-matter jurisdiction. NOTE: Watch out for the four basic situations on estoppel; in each of these situations plaintiff is estopped:D Where the attacker was subject to personal jurisdiction in the earlier proceeding, thus the spouse in a bi-

16、lateral divorce cannot later attack that divorce.D 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. D Persons who are in privity with a party to the divorce. This includes childr

17、en from the marriage. Hypo: buy airplane ticket.D A spouse who has remarried in reliance on the earlier divorce.(2) PROPERTY AWARDS (e.g. alimony and child support)² A court granting alimony or child support must have personal jurisdiction over the spouse whose property rights are in issue.(3)

18、CHILD CUSTODY DECREE² Valid jurisdiction for determining child custody lies only in the childs home state.# FAMILY LAW JURISDICTION IN A NUTSHELL:² For divorce: subject-matter jurisdictionvalid domicile of at least one party.² For property awards (alimony, child support): personal jur

19、isdiction over the spouse whose rights are being determined.² For child custody: personal jurisdiction over the childthat is, the childs home state.# 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 ca

20、lled the divisible divorce doctrine.2 DOMICILE2.1 Four ways domicile might appear on the exam:(a) Domicile of the decedent is used to choose the law to be applied to determine intestate succession of personal property (in contrast, real property determined by situs).(b) Domicile at death determines

21、which state gets estate taxes.(c) Domicile of an individual gives subject-matter jurisdiction for a divorce.(d) Domicile is very important when applying New York choice of law rules.2.2 DOMICILE OF CHOICE(a) Legal capacity is needed to make a domicile of choice. The standard: the ability to fend for

22、 yourself. v This is different from legal capacity in contract. This is a low standard. If you do not have legal capacity to get a domicile of choice, one will be assigned to you. (b) Two-part test to establish a domicile of choice:(1) Physical presence in that state, which can be a very short time.

23、(2) Intent to remain for the foreseeable future, that is, indefinitely (actions speak louder than words).(c) A person can have only one domicile. Once obtained, a domicile of choice is kept until another one is acquired.v A died on the way to move to state C.His domicile is still state A.(d) The mot

24、ive for going to another state to acquire a domicile is irrelevant.2.3 DOMICILE BY OPERATION OF LAW(a) If a person has no legal capacity to acquire a domicile of choice that person will be assigned one by operation of law.(b) Only two situations to remember for the exam:(1) Domicile of a child: a. i

25、f the child does not have legal capacity to get a domicile of choice, the child will have the domicile of the childs parents. b. If parents are divorced, domicile is that of the parent who has physical custody.(2) Domicile of a married woman living apart from her husband in a different state: marrie

26、d woman can obtain a domicile of choice, just like anyone else (presence and intent). Old rule: married woman had the domicile of her husband3 CHOICE OF LAW3.1 CONSTITUTIONAL LIMITATIONS(a) Constitutional considerations: due process and full faith and credit(b) The state chosen must have a significa

27、nt contact or contacts with the parties or the subject matter of the litigation which gives it a legitimate interests in seeing its law applied(c) Test: significant contact giving legitimate interest(1) No weighing of the interests of the states is needed; as long as a state meets the test then its

28、law can be applied. a) Misconduct of CA's taxing agency to Nevada's residents, claiming big interest. Constitutional. because Nevada did have a legitimate interest in seeing applying its own law.Has an interest in the welfare of the residents(2) Note two situations that do not meet the test:

29、² If, after the event in question, someone moved to a new state, and that move creates the only contact with that state, then it would be unconstitutional to apply that states law.² If the only contact with the parties or the litigation is that the suit is brought in that state, then it wo

30、uld be unconstitutional to apply that states law.3.2 VESTED RIGHTS APPROACH TO CHOICE OF LAW# The traditional system, also called the territorial approach. Now the governmental interest approach.(a) Under the vested rights approach, the law to be applied is the law where the rights of the plaintiff

31、vested.(b) There was a rule for each area of the law.(1) Torts: the instant a cause of action arises plaintiffs rights become vested, so the vested rights rule would say to apply the law of the place where the injury occurred, or the place of the injury.(2) Contracts: rights under a contract vest at

32、 the moment the contract is made, so the vested rights rule would say to apply the law of the place of making of the contract.(c) Two things to note about the vested rights approach:(1) It had a rule for every area of the law.(2) The rules were all territorial rules, pointing to a single place.(d) M

33、ost 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 the litigation.3.3 INTEREST ANAYLSIS APPROACH TO CHOICE OF LAW(a) The five step Babcock approach to interest analysis:(1) List the factual co

34、ntacts with each state.(2) Note the different state laws in issue.(3) Find out the policies underlying each states law by consulting legislative history and court decisions.# Exam shortcut: Who is the law designed to protect - find out which states law would favor the plaintiff and which would favor

35、 the defendant.(4) Take the facts and relate them to the policy to see if the state has an interest in seeing its law applied.# Exam shortcut: does the party being favored by a states law reside in that state? If so, that state has an interest. HYPO: state A favors D, but D has no connection with st

36、ate A,NY favors P, P and D are residents of NY. Ny has an interest.(5) Apply the law of the state with the greatest governmental interest in the outcome. To do this last step you must see which of four categories the conflict fits in:² False conflict: where only one state has an interest in hav

37、ing its law applied? If so, you apply the law of the only jurisdiction with an interest in the outcome of the litigation.² True conflict: where two or more of the states involved have an interest in the litigation, and one of them is the forum state. If you have a true conflict you will presume

38、 that you will apply the law of the forum state, unless the interest of the other state is much greater.² Disinterested forum case: where two or more states have an interest in having their law applied and the forum is not one of them. In a disinterested forum case a New York court can do one o

39、f two things: (i) apply the law that is closest to New York law, or (ii) apply the better law.² Unprovided-for case: where no state has an interest in applying its own lawà New York law.v If no state has an interest in seeing its law applied we have an unprovided-for case, and the courts m

40、ost often will just apply forum law.(b) SPECIFIC AREAS (1) Torts: use the 5-step Babcock test PLUS the additional three rules of Neumeier*:² Neumeier Rule One (Same Domicile Rule): when the plaintiff and defendant are domiciled in the same state, that states law will be applied.² Neumeier

41、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 states law will be applied.² Neumeier Rule Three: when the plaintiff and defendant are domiciled in different jurisdictions and the law

42、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 (and the place is totally fortuitous). #Neumeier in a Nutshell: Apply the law of the place of the injury unl

43、ess both parties live some place else.# in Neumeier Three, while ² Loss Distribution Rules - Most torts rules are loss distribution rules, those that determine which party will bear the loss. Apply the Babcock/Neumeier analysis to all loss distribution rules.² Rules Regulating Conduct (rul

44、e of the road) - For all rules regulating conduct, apply the law of the place of the injury. *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 ru

45、le on loss distribution discuss the Babcock 5-step method and the 3 Neumeier rules and apply the law of the state indicated.(2) Contracts² Ability of the parties to choose the law in the contract:D Parties can always choose any law in the contract for matters of contract construction.D Parties

46、can also choose the law to govern matters of contract validity provided three things exist:(i)the choice cant be contrary to a fundamental policy of a state with a greater interest than the chosen state. (ii) there must be a substantial relationship to the parties or the transaction.(iii)the choice

47、must be free of duress, i.e., not a contract of adhesion# New York Special Statute on Large ContractsD For a contract price at $250,000 or more, the parties can choose New York law even if the contract has no connection with New York at all.D For a contract price no less than $1,000,000 (one million

48、) and the parties choose New York law in the contract, then the parties may also put in a clause specifying that New York may be the forum, and courts are prohibited from dismissing under forum non conveniens.² Choice of law if parties dont choose the law in the contract: D New York has abandon

49、ed the old vested rights rule in contracts (place of making) in favor of interest analysis in the Babcock 5-step test.(significant relationship test)D When interest analysis is applied to contracts we call the state chosen the state with the most significant relationship to the contract.² Speci

50、al 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. -This is not an exception just that when you are dealing with the insurance policy the state where the policy is written has the most signifi

51、cant relationship to the contract.(3) Real PropertyJust one rule: the law of the situs of the property governs, that is, the law of the place where the property is located.(4) Personal PropertyFor every situation but one, use the same situs rule as for real property - if the issue is the passing of

52、personal property by intestate succession, the state chosen is the state of the deceaseds domicile at death.(5) InheritanceA non-New York domiciliary can choose New York law in a will to apply to the disposition of New York assets. This applies in all situations, even when it would oust a wife from

53、an elective share.(6) Family Law² General Rule: if a marriage is valid where performed, it is valid everywhere.² Exception: 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.² 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 can still be recognized in New York IF it would have complied with the New York rule.²