NY Conflict of Laws - Choice of Law

Question 1

What are the two ways in which DOMICILE can be created?

Answer 1

(1) DOMICILE BY CHOICE - meaning domicile is acquired by one who has “domicile capacity” (i.e. the ability to fend for oneself) - need (i) presence and (ii) intent to remain
(2) DOMICILE BY OPERATION OF LAW (assigned to someone who lacks capacity to form domicile by choice)

Question 2

What is the two part fact test to establish DOMICILE (of choice) ?

Answer 2

(1) PHYSICAL PRESENCE in a place

(2) INTENT to be domiciled in that place

Question 3

Notes on PHYSICAL PRESENCE element

Answer 3

Physical presence can be for even a very short period of time as long as the intent is clearly manifested

e.g. Lulu has always lived in LA but last week she came to NY to work, leased an apt and opened a bank account. She is domiciled in NY

Do not confuse “intent” with “motive” - reason for moving doesn’t matter - it is intent to stay that matters.

e.g.Charlie moves from Dallas to New York. He left to avoid responsibility for his wife and seven children and evade criminal charges he thought were to be brought against him. where is he domiciled? NEW YORK - bc he “intends” to live there - doesn’t matter why

Question 4

Rule for “multiple residences”

Answer 4

the principal residence is the domicile

e.g. Doofus lives/works in Albany but has a “ski” condo in Aspen - domiciled in NY

Question 5

When does one’s domicile change?

Answer 5

One retains their domicile UNTIL they have “perfected” the two part test elsewhere

aka need both - (i) presence in new place AND (ii) intent to remain in that place (if BOTH have not yet been satisfied, old domicile remains our domicile)

Question 6

DOMICILE BY OPERATION OF LAW

Answer 6

this is domicile ASSIGNED to one who lacks “domicile capacity”

e.g. INFANTS, MENTAL INCOMPETENTS

INFANTS - will be assigned the domicile of their parents. In case of divorce or separation, it will be the domicile of the one with CUSTODY

MENTAL INCOMPETENTS - One is assigned domicile of his/her parents. If one became incompetent AFTER having acquired a domicile of choice, he/she retains the domicile of choice

Question 7

What is the domicile rule with respect to INFANTS?

Answer 7

Infants will be assigned the domicile of their parents. In case of divorce or separation, it will be the domicile of the one with CUSTODY

Question 8

What is the domicile rule with respect to MENTAL INCOMPETENTS?

Answer 8

One is assigned domicile of his/her parents. If one became incompetent AFTER having acquired a domicile of choice, he/she retains the domicile of choice

Question 9

What will a “Choice of Law” fact pattern look like?

Answer 9

It will involve litigation having factual contacts with New York and one or more other states. These states will have “conflicting laws” with “conflicting results”

ESSENTIAL QUESTION IS - Which state law governs?

Question 10

Which state law governs? (high level question)

Answer 10

it will be the law selected by the FORUM court (NEW YORK) using its choice of law approach (subject to constitutional and statutory limitations)

Question 11

Constitutional Limitations on choice of law

Answer 11

The ONLY time there is a constitutional limitation under either due process or full faith and credit is where the law applied is that of a state not having ANY significant contacts with and/or legitimate interest in the litigation. As a practical matter, this almost never happens

Question 12

Statutory Limitations

Answer 12

These are either state or federal statutes directing the court as to what law it MUST or CANNOT apply (e.g. borrowing statutes of limitations, federal patent law)

Question 13

What conflicts law do federal district courts sitting in diversity jurisdiction apply?

Answer 13

the federal court will apply the “conflicts” rules of the state in which it is LOCATED

HOWEVER, if the case has been TRANSFERRED from another district, the court will apply the conflicts rules of the TRANSFEROR state

Question 14

HISTORICAL “Vested Rights” approach to choice of law

Answer 14

HOW IT WORKS: for each substantive area there are “vesting” rules. These are “fact based” rules that determine which state’s law will govern (where the fact “occurs” is the state which will have its law govern)

E.g. Torts: place of injury
Contract formation: place of formation
real property: situs of land

Question 15

INTEREST ANALYSIS (babcock v. Jackson)

Answer 15

HOW IT WORKS: Determine what INTEREST each state has in the “outcome” of the litigation

2 BASIC FACT PATTERNS
(1) FALSE CONFLICT - only ONE STATE has an interest in having its law applied
RESULT — APPLY THAT STATE’s LAW

(2) TRUE CONFLICT - BOTH STATES have an interest in having their law apply
RESULT — If the FORUM has a “legitimate” interest in the “outcome” of the litigation it will apply its OWN law

(so basically, true conflict, almost always apply NY [forum state] in true conflict bc forum almost always has a legitimate interest in outcome of litigation)

Question 16

What is the rule for applying conflict of laws in a TORTS case?

Answer 16

NEUMEIER v. Kuehner - NEUMEIER RULES

(1) if the parties have a COMMON DOMICILE, that state’s law governs
(2) if the parties are DOMICILED IN DIFFERENT STATES, the law of the place of INJURY governs

Limiting Note: if, the state of the place of injury has no real interest in the outcome of the litigation another state’s law can be applied. IF NY, as the forum, has any legitimate interest in the outcome it will apply its own laws.

Exception 2: FOR RULES REGULATING CONDUCT, apply the “place of injury” (e.g. speed limits)

Question 17

What do you do when there are multiple plaintiffs and defendants?

Answer 17

under “Neumeier” choice of law analysis, court must consider EACH plaintiff vis-à-vis EACH defendant - so break it up into separate suits and apply the analysis to each separate suit

Question 18

Choice of law analysis for CONTRACTS

Answer 18

(1) Determine if there is a VALID EXPRESS choice of law provision, if so it governs
(2) if invalid choice of law provision, INTEREST ANALYSIS

Question 19

What are potential reasons to INVALIDATE a choice of law provision?

Answer 19

(I) LAW SELECTED is that of a state having NO REASONABLE RELATIONSHIP with the contract

(ii) NO TRUE MUTUAL ASSENT (e.g. Doofus persuades Bowater to apply NJ law by misrepresenting some aspects of it)

Question 20

NY Special Statutes on Large Contracts

Answer 20

(I) If a contract is for not less than $250,000, the parties can choose NY law even if the contract has no connection with New York at all

(ii) If a contract is NOT for less than $1,000,000 and the parties choose NY law in the contract, then the parties may also put in a clause specifying that New York may be the forum, the courts are prohibited from dismissing under forum non conveniens (i.e. they HAVE TO exercise jurisdiction)

Question 21

NY Special Rule for Automobile Insurance Contracts

Answer 21

ALL issues regarding the rights and duties UNDER AN INSURANCE POLICY are governed by the state where the policy was WRITTEN regardless of where the accident occurred

(e.g. NY resident crashes into other car in NYC, but registered vehicle in VT and obtained auto insurance from VT co by lying about where he lived. Insurance co retroactively canceled his policy after finding out his real domicile (permissible under VT law but not under NY law) - bc of this rule, apply VT law and ins co can cancel

Question 22

Conflict of law analysis for PROPERTY

Answer 22

Real Property Rule - THE SITUS, ie where the land is located (this covers both inter vivos and inheritance matters)

Personal Property Rule
(1) inter vivos transactions - SITUS at the TIME of the RELEVANT TRANSACTION (e.g. CA res buys car in NY and drives it back to CA, NY law applies)

(2) INHERITANCE MATTERS - Domicile of Decedent at Date of Death

NOTE: if INTANGIBLE property interest is incorporated in a document (e.g. negotiable instrument, stock certificate), the situs is where the document IS

Question 23

Conflict of Laws approach for FAMILY LAW: MARRIAGE

Answer 23

Marriage Rule: if the marriage is valid where it is PERFORMED (“celebrated”) it will be recognized as valid everywhere, including NY

Exception: where DOMICILIARIES of one state TEMPORARILY leave the state and go elsewhere to get married IN ORDER TO AVOID A “Prohibitory Rule” of their state of domicile, their state of domicile will NOT recognize the marriage

NOTE: a “prohibitory rule” is one that expresses strong public policy (e.g. First cousins cannot marry)

also note: to date, NY has been very tolerant I recognizing marriage performed elsewhere. They have basically recognized every marriage performed elsewhere

Question 24

Conflict of Laws approach for FAMILY LAW

Rule for DIVORCE

Answer 24

There are NO choice of law issues. The Forum ALWAS applies its own divorce laws. Since at least one of the spouses is domiciled there it has an interest in having its own laws apply

Question 25

Conflict of Laws approach for FAMILY LAW

Rule for LEGITIMACY

Answer 25

(I) Children born out of wedlock are illegitimate. If the mother is married, the child is presumed legitimate

(ii) the validity of SUBSEQUENT acts of legitimation are governed by the law of the father’s domicile. The modern trend holds it is valid if sufficient under the law of EITHER the father’s OR child’s domicile

Question 26

DEFENSES TO CHOICE OF LAW

Answer 26

(1) Other law is against Forum’s public policy (e.g. “don’t enforce MA law, it is stupid!”) - ALMOST NEVER ACCEPTED (in NY it is really just part of basic interest analysis anyway)
(2) SUBSTANCE/PROCEDURE DICHOTOMY - argue that the matter is procedural - NY will use its choice of law approaches to determine which SUBSTANTIVE law to apply. HOWEVER, if the matter is PROCEDURAL, it will apply its OWN LAW

Question 27

General rule for statute of limitations (as to whether it is procedural or substantive)

Answer 27

Statute of limitations are treated as PROCEDURAL. Thus, NY will apply its own statute
with 2 exceptions:

(1) Borrowing Statutes
(2) Statute Conditions Substantive Rights

[see next 2 cards]

Question 28

Borrowing Statute in NY

Answer 28

(1) Borrowing Statutes (statutory direction) - under these, forum state is directed to apply “shorter” time limie (forum’s or that of state where COA arose) NY has a borrowing statute BUT it only applies to non NY plaintiffs (so if NY plaintiff, apply NY S/L)

total analysis: NY has a borrowing statute but it does not apply to NY residents, therefore NY will apply its own choice of law provisions. Because S/L is a “procedural issue” NY will apply its own

Question 29

Statute Conditions Substantive Right

Answer 29

Rule: If you apply another state’s statute which creates a substantive right, you should apply the ENTIRE statute INCLUDING its otherwise procedural type provisions (e.g. s/l)

e.g. NY, the forum, applies its choice of law approach and decides wrongful death act of NH should govern litigation. NY has a 2 year S/l for these lawsuits but NH has 3 IN THE ACT. so we apply NH S/l bc the limitation period is part of the substantive right itself created in the NH act