Defenses to Choice of Laws Flashcards
What are the two defenses to choice of laws?
- the other law is against public policy
2. substance/procedure dichotomy
What is NY’s attitude towards the defense that the other law is against NY policy?
NY does not accept it as a defense, but rather folds it into the basic interest analysis.
When does the use of the defense that the other law is against public policy fail?
In the full faith and credit analysis. Public policy, while relevant to the interest analysis/choice of laws approach, is irrelevant in determining whether an out-of-court judgment should be given full faith and credit.
What is the forum’s rule regarding use of its vs. out-of-state procedural rules?
The forum court will always use its own procedural law. NY has to use it’s choice of laws approach to determine whether to use NY or another state’s substantive laws.
As a general rule, are statutes of limitations considered substantive or procedural?
Procedural, and thus NY will usually apply it’s own statutes of limitations.
What are the two exceptions to classifying statutes of limitations as procedural?
- Borrowing statutes
2. Statute of limitation conditions a substantive right
What is NY’s borrowing statute?
It directs the forum to apply the “shorter” statute of limitations if there is a conflict.
NY will apply the shorter of the two unless the plaintiff is a NY domiciliary (and then they will use the NY statute regardless of respective lengths).
If the court applies another state’s statute that creates a substantive right - what is the general rule about any procedural provisions within that statute?
The general rule is that if another state’s statute that creates the substantive right includes procedural-type provisions (like a statute of limitations) the court should apply the entire statute and thus apply that statute of limitations, as well (rather than analyzing whether it is shorter or longer than NY’s).
