Defenses to Choice of Law

Question 1

What are the defenses to choice of law?

Answer 1

1. public policy
2. procedural rules

Question 2

Public Policy Defense

Answer 2

Rule: a forum court will not apply a law that is against its own fundamental public policy.

Applies to both Restatements but most applicable to RS1

Caveat: this rule does not apply to recognition of judgments!!

Question 3

Procedural Rules

Answer 3

Rule: regardless of the outcome of the choice of law analysis, the forum court will always apply its own procedural rules.

Question 4

Statute of Limitations

Answer 4

General rule: SOL is procedural

Example: Federal Civ Pro considers SOLs as substantive. This is true. A federal court sitting in CT is required to apply whatever SOL for a claim that a state court in CT would. But what if CT considers SOLs to be procedural and the case is filed in federal court and has a choice of law issue between CT and NY? For the exam, it’s a step-by-step process. The federal court in CT is required to apply wahetver SOL a CT court would, rather than any federal statute, because this issue is “substantive.” And since CT considers SOLs to be procedural, a CT state court would apply its own SOL rather than NY’s SOL, so the federal court should do the same.

Question 5

Exception to the SOL: Borrowing Statutes

Answer 5

Borrowing statutes direct a court to look at both the forum limitations period and the foreign limitations period (in cases where foreign law governs under a normal choice of law analysis) and then typically apply the shorter period

Question 6

Exception to the SOL: Limitations that Condition a Substantive Right

Answer 6

If the normal choice of law analysis leads to the application of a foreign statute that creates a substantive right, then you apply the entire statute.