Defenses to Choice of Law

Question 1

Procedural Defense

Answer 1

Rule: The forum will not apply the procedural law of another state, but will only apply that state’s substantive law.

Procedural Laws:

• Burden of proof
• Statutes of limitations
  
  • EXCEPTION: Borrowing statute, which will borrow, and apply the shorter statute of limitations where the cause of actions arose (assume states have borrowing act if they don’t say so).
  • Embedded (incorporated) statutes of limitations which are part of the state substantive law giving a cause of action are substantive.

Substantive Law:

• Contributory or comparative negligence are substantive matters;
• Statute of frauds is substantive;
• Parol evidence rule.

Question 2

Public Policy Defense

Answer 2

Rule: The law is against the public policy of the forum state.

Mostly useless defense, would have to be harshly against justice.

Question 3

Penal Law Defense

Answer 3

Rule: A defense to choice of law is that the law is a penal law. Narrow defense only covers offenses against the public; a criminal judgment or civil fine.

Question 4

Statute of Limitations as Procedural

Answer 4

Rule: Assume state has a borrowing statute and apply the shorter statute of limitations period.

• However, borrowing statutes only apply if the Defendant has no suffecient connections with the state.