Conflict of Laws

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Conflict of Laws
2011-07-13 23:18:04
NY Bar Exam

NY Bar Exam
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  1. When does domicile arise by operation of law?
    Where a person bears a certain legal incapacity (e.g., infancy, mental incompetency).
  2. How do you determine the domicile of an infant?
    The marital child's domicile follows that of the father (or the mother if the father is deceased) during the child's minority. In cases of divorce or separation, domicile follows the parent who has custody. A minor child may establish a separate child by "emancipation" (reaching the age of discretion or leaving home) or by marriage.
  3. How do you determine the domicile of incompetents?
    One who lacks the legal capacity to select a domicile will retain the domicile of his parents. When a person previously had capacity and at that time chose his domicile, only later becoming incompetent, he will retain the domicile of his choice.
  4. How do you determine the domicile of a married person?
    The domicile of a married person is determined without regard to that person's gender. The law no longer automatically assigns to a wife the domicile chosen by her husband.
  5. How do you determine the domicile of a person with legal capacity?
    Two requirements: (i) physical presence, and intention to be domiciled.

    These are questions of fact.
  6. What is required to satisfy the intention of an individual to be domiciled somewhere?
    That she intends to remain there indefinitely.
  7. Will courts look to the underlying motive in determining domicile?
    No. A person may change domicile with the motive of gaining an advantage in litigation, as long as she has a genuine intent to change her domicile and is physically present in the new domicile.
  8. How long does a person retain her present domicile?
    Until she perfects the two-part test elsewhere (presence plus intent).
  9. How do you determine a person's domicile if she has more than one dwelling?
    The "principal home" will qualify as the domicile of choice.
  10. Can a new domicile be acquired in a very short time if the requisite intent is present?
  11. Can courts in two different states reach conflicting determinations as to which state is a person's domicile?
  12. Can an individual have more than one domicile?
  13. What is the impact of the constitution on choice of law?
    Constitutional limitations arise either under the Due Process Clause or the Full Faith and Credit Clause.
  14. When is a forum state not constitutionally bound to apply the foreign state's conflicting law by reason of either the Due Process or the Full Faith and Credit Clause?
    If the forum state has any significant contacts with the parties or the subject matter of the action, whereby it has a legitimate interest in regulating the outcome of litigation.
  15. When will application of substantive forum law violate due process?
    When the forum state's only contact is the fact that suit was brought there or that the plaintiff once lived there.
  16. Might a state have its own statutory provisions directing it as to what law must be applied in a given case?
    Yes, e.g., borowing statutes, U.C.C. choice of law provisions, etc.
  17. May federal law preempt a state from taking jurisiction over certain subject matters?
  18. Does New York follow the governmental interest approach to choice of law?
  19. What is the focus of the governmental interest approach?
    Which state has the greatest interest in the outcome of the litigation.
  20. What is a "false conflict"? What law should a court apply in a "false conflict"?
    Where only one state has an interest in having its law applied. Apply the law of the interested state.
  21. What is a "true conflict"? What law should a court apply in a "true conflict"?
    Where both states have an interest in having their laws applied. Reconsider the forum's policies and then either apply its law if it has an interest in doing so, apply the law of another state with a greater interest, or attempt a compromise.
  22. What is a "disinterested forum" case? What law should a court apply in a "disinterested forum" case?
    The forum state has no interest but two other states do have an interest. Dismiss for forum non conveniens if available, or if not, pick the better law or hte law most like that of the forum.
  23. What is an "unprovided-for case"? What law should a court apply in a "unprovided-for case"?
    No state has a legitimate interest. Apply the law of the forum.
  24. What is the general New York choice of law rule in tort?
    Governmental interest analysis.
  25. Under the governmental interest approach, what law would a New York court generally use in determining whether a cause of action existed?
    New York law. Other (foreign) laws would be applied where appropriate.
  26. What law will usually apply to rules governing conduct in tort?
    The law of the place of the tort.
  27. What law will usually apply when there are conflicting "loss distribution" rules?
    The locus jurisdiction has a minimal interest in determining the right of recovery. Analysis favors the jurisdiction of common domicile.
  28. When the guest-passenger and host-driver are domiciled in the same state, which law should control the standard of care that the host owes to his guest?
    Under Neumeier, the law of that state.
  29. When the driver's conduct occured in the state of his domicile and that state would not hold him liable, should he be held liable by imposition of the law of the victim's domicile?
    Under Neumeier, no.
  30. When the guest is injured in the state of her domicile and its law allows recovery, can the driver assert the law of his state as a defense?
    Under Neumeier, no.
  31. Where the passenger and driver are domiciled in different states, which law should apply?
    Under Neumeier, the law of the state where the accident occured (absent special circumstances).
  32. What law will New York apply when charities commit tortious acts?
    New York will apply the law of the state where the plaintiffs and defendants are domiciled, even though many of the tortious acts took place within New york, in order to encourage the growth of charitable work within that state.
  33. What law will apply in actions between family members?
    The place of domicile would apply its own law if the action were brought there. If brought elsewhere, analysis of respective policies and interests would be required.
  34. Does New York have any policy objection to intrafamily litigation?
  35. What law governs if a release from liability is characterized as a tort problem?
    The law of the place of wrong.

    In New York, countervailing interests may modify this rule.
  36. What law governs if release from liability is characterized as a contract problem?
    The law of the place of contracting.

    In New York, countervailing interests may modify this rule.
  37. What law will apply for determining the applicable contribution rule?
    The governmental interest approach will generally lead to the place of the accident.
  38. What law will apply for vicarious liability?
    Standard interest analysis has been applied by New York courts in determining whether vicarious liability exists. Where there are relatively few or no New York contacts, the court of appeals will apply the law of the place of the tort.
  39. What law will govern where liquor is served in a state without a Dram Shop Act and injury occurs in New York?
    Under interest analysis, the state with the Dram Shop Act would not apply its own law.
  40. Where the plaintiff's domicile state grants damages, does that state have an interest in applying its own law?
  41. Will it further any state interest to apply the law of the state of injury simply because it has a nonsurvival rule?
    No, because the purpose of nonsurvival rules is to protect the estates of decedents domiciled in taht state.
  42. What law will govern in wrongful death cases?
    New York follows a strict interest analysis approach in wrongful death cases, applying its own law where it has an interest in doing so.
  43. What law applies where the plaintiff suffers injury in more than one state?
    The court will usually apply the law of the plaintiff's domicile.

    Rationale: She suffeed the greatest harm there, and the defendant should not insulat ehimself from liability acting in a state that grants him immunity.
  44. How do you determine if a state will take jurisdiction in a workers' compensation case?
    Determine if there are significant contacts within the state for jurisdiction and application of forum law; consider whether (i) the employment contract was entered into in the state, (ii) the injury occured in the state, (iii) the employee resides in the state, or (iv) the employee relationship is being performed in the state.
  45. If the parties expressly stated whta law is to be applied, will that law govern?
    Yes, as long as the choice of law was reasonable.
  46. Will New York apply its own law for injuries outside the state?
    Yes, if significant contacts exist within the state.
  47. Will New York apply its own law for injuries inside the state?
    Yes, generally.
  48. Can a worker recover compensation in more than one state?
    Yes, but any recovery in one state will be credited against an award in the second state. This is true even where the first state's statute or judgment provides that it shall be the worker's exclusive remedy.
  49. May an employee bring a tort or wrongful death action against a defendant from whom he has already been awarded damages in a workers' compensation suit in another state?
    Courts will not allow such an action if the workers' compensation statute of the first state grants the defendant immunity from tort liability. This recognition of the first state's statutory immunity is generally discretionary with the forum state. There is strong judicial support in New York for protecting the workers' compensation immunity granted by an interested jurisdiction.
  50. Will an express choice of law provision in a contract govern?
    Yes, unless (i) it is contrary to public policy; (ii) there is no reasonable basis for the parties' choice; (iii) there is no "true consent" (e.g., fraud, mistake, adhesion contracts); or (iv) the New York Statute of Frauds is circumvented.
  51. What law applies wehen a transaction bears a reasonable relation to New York and also to another state or nation?
    The parties' choice of law.
  52. What law governs where one of the provisions of the U.C.C. specifies the applicable law?
    That provision governs and a contrary agreement (by the parties) is effective only to the extent permitted by law, including the conflict of law rules.
  53. Absent a contrary agreement by the parties, what transactions does the New York U.C.C. apply to?
    Transactions bearing an appropriate relation to New York.
  54. What is the effect of the New York General Obligations Law?
    Parties may expressly agree that New York law governs contracts exceeding $250,000, regardless of whether the contracy bears a reasonable relation to New York, unless the contract relates to labor or personal services or is governed by other U.C.C. provisions
  55. What analysis does New York adopt in choice of law problems in contract cases?
    Clear interest analysis.
  56. Are usurious contracts sustained?
    Yes, if they are valid under the law of any jurisdiction with a reasonable relationhsip tot he contracy. If the law of both states makes the rate usurious, the one with the less severe penalty will be selected.
  57. What law governs if an automobile liability action involves the rights and obligations of the insured and the insurer?
    The law of the state where the policy was written, regardless of where the accident occured.
  58. What does New York rely upon as determiniative of whether an interest in land exists?

    Note that this is even though the governmental interest approach tends to place less emphasis on situs.
  59. What law will New York apply in inter vivos transactions in personal property?
    The law of the situs of the personaly, even when it substantially clashes wiht the result preferred under interest analysis.
  60. What law will control if the issue is characterized as a "marital property" question or as one concerning "transfer of personalty"?
    The law of the domicile.
  61. What law applies with respect to the effectiveness of security interests in chattels?
    Under U.C.C. sections 9-102 and 9103, the law of the debtor's chief place of business.
  62. What statute controls the choice of law related to inheritance?
    The New York inheritance statute.
  63. What law governs the intestate succession to real proeprty?
    The law of the situs.
  64. What law governs the testate succession to realty?
    The law of the situs.

    EXCEPTION: For New York realty only, formal validity will be satisfied if it meets the requirements of (i) New York, (ii) the state of execution, or (iii) the domicile of the testator at the time of execution or death.
  65. What law determines intestate succession to personal property?
    The law of the decedent's domicile at the time of death.
  66. What law determines testate succession to personal property?
    The decedent's domicile at the time of death, subject to the following exceptions: (i) As to formality issues, the will is valid if valid in New York, the state of execution, or the domicile of the testator at the time of execution or death; (ii) as to intrinsic validity, if so valid under the law of the testator's domicile at the time of execution, a subsequent change in domicile will not upset that validity; (iii) as to interpretation, the law of the testator's domicile at the time the instrument is executed governs; (iv) as to revocation or alteration, the law of the testator's domicile at the time the subsequent instrument is executed or the physical act is performed governs.

    NOTE: When not bound by the foregoing statutory proviison concerning inheritance distributions, New York will resort to governmental interest analysis. Also note that New York statute prevents escheat of local property to another state or foreign country.
  67. Where is a marriage valid?
    A marriage valid where celebrated is valid everywhere; one void where celebrated is void everywhere.
  68. Is a marriage valid if, even though valid at the place of celebration, it violates a "prohibitory rule" of the domicile of one of the parties and the parties immediately return to and become domiciled in that state?
  69. Does New York recognize same-sex marriages from other jurisdicitons?
  70. Is same-sex marriage legal in New York?
    Yes, although broad accomodation is given to religious groups who do not wish to perform gay marriages.
  71. What is the practical difference between directory and prohibitory rules?
    The violation of directory rules will not render the marriage invalid in the place of domicile.

    The violation of prohibitory rules will render it invalid.
  72. Describe directory rules.
    Directory rules are more adminsitrative in nature (e.g., rules requiring a marriage license, parental consent, and a certificate of blood test).
  73. Describe prohibitory rules.
    Prohibitory rules are generally those that express the strong public policy of the state (e.g., rules against incest, polygamy, and marriage under a minimum age).
  74. What law governs annulment?
    Annulment is governed by the law of the place where the marriage was celebrated (although there is a trend to apply the law of the state with the most significant relationship to the marriage).
  75. What law governs choice of law questions relating to the grounds for divorce?
    The law of the plaintiff's domicile, i.e., the forum state.
  76. What law governs alimony and child support cases?
    The law of the state that ordered the payments will determine whether, and to what extent, the orders are modifiable?
  77. When are subsequent attempts to change a child's status from nonmarital to marital?
    If valid under the law of the parents' domicile.

    There is a recent trend to uphold validity if sufficient under the law of the child's domicile.

    Property incidents of status, under the traditional view, are governed by the law governing the disposition of the property in question.
  78. What law applies to govern adoptions?
    A court applies its own ocal law to govern adoptions. Property incidents of adoption are the same as for determining the child's status.
  79. What arguments against application of a foreign law should be considered?
    • The law to be applied is procedural;
    • The law is against the forum's public policy; and
    • The law is a penal or tax law.
  80. Where the forum decides to apply substantive law of another state, whose procedural law will it apply?
    Its own.
  81. Whose law is employed to determine whether a law is substantive or procedural?
    The law of the forum.
  82. What laws are procedural?
    • Civil practice rules in general;
    • Burden of proof in general;
    • Rebuttable presumptions;
    • Statutes of limitations in general; or
    • Ability to bring counterclaims.
  83. What laws are substantive?
    • Civil practice rules that would change outcome;
    • Burden of proof that would affect the decision;
    • Irrebuttable presumptions;
    • Statutes of limitations that condition a substantive right or limit a contractual right, and borrowing statutes;
    • Statute of Frauds;
    • Parole evidence of rule;
    • Contribution among joint tortfeasors;
    • Direct action statutes;
    • Survival of action; and
    • Adverse possession.
  84. Can a forum refuse to apply foreign law that is contrary to the public policy of the forum state?
    Yes. (Use this defense sparingly.)
  85. Is New York authorized to enforce revenue laws of other states?
    Only if such other states reciprocate and, as a matter of comity, enforce New York revenue laws.
  86. When may the forum apply the doctrine of renvoi?
    When the forum does not like the foreign law that the forum's choice of law rules refer it to.
  87. What is the effect of the doctrine of renvoi?
    It allows the forum to apply the foreign jurisdiction's choice of law rules, which may refer the forum back to its own law or to the law of a third jurisdiction.

    Renvoi problems generally do not arise in New York since, under the governmental interest approach, New York would apply the substantive rule of the most interested state (unless a chocie of law statute dictated a different result).
  88. Do only federal courts have subject matter jurisdiction in some areas?
    Yes. E.g., federal antitrust, bankruptcy, patent laws.
  89. Are state courts permitted to enforce federal law concurrently with federal courts?
    In some areas. Some state statutes direct state courts to enforce federally created rights (e.g., Federal Employer's Liability Act). It is unclear whether the states must do so. (Apparently yes, if the states would enforce analogous rights. If so, a state may not avoid enforcement by procedural characterization.)
  90. What is the Erie doctrine?
    Under Erie, because there is no federal common law, federal district courts must apply the substantive law of the state in which the district court sits. The Erie doctrine was extended in Klaxon to require application of state conflict of laws rules as well. The Erie doctrine does not, however, require the application of a state's procedural law.
  91. What is the otucome determinative test?
    If a conflict arises between the Federal Rules of Civil Procedure and a state civil practice rule, the state rule will be tested as substantive and applied if it would result in an important difference in the outcome of the litigation (i.e., the "outcome determinative test").
  92. Do courts have to take judicial notice of sister state and federal law?
    Today, most states (including New York) grant courts the discretion to take judicial notice. However, a court must take notice if a party requests it, furnishes the court with sufficient information to enable it to comply with the request, gives the adverse party notice, and in New York, pleads the foreign law.
  93. When must a court take notice of sister state and federal law?
    If a partyrequests it, furnishes the court with sufficient information to enable it to comply with the request, gives the adverse party notice, and in New York, pleads the foreign law.
  94. Must foreign country law be proved as fact?
    Yes. If not proved, the consequences will be decided pursuant to the law of the forum (unless application fo the New York law would create injustice).
  95. What is comity?
    A voluntary recognition of a judgment rendered in another jurisdiction.
  96. What does comity depend on?
    Recognition usually depends on whether the foreign courty has jurisdiction and whether fair procedures were used in adjudicating the case.
  97. Can a party to a foreign action colalterally attack the judgment's validity in a New York court.
    Under comity, absent some showing of fraud in the procurement of the foreign country judgment or that recognition of the judgment would violate a strong public policy of New York, a party to the foreign action is precluded from collaterally attacking the judgment's validity in a New York court.