Foreign Law + Defenses

Question 1

Traditional approach to foreign law

Answer 1

Laws of another state or country NOT law at all

Considered FACTS to be proven in court

If facts not proven, court would apply forum law or dismiss case

Question 2

Modern approach to foreign law

Answer 2

Most states allow courts to take JUDICIAL NOTICE of laws of other states

Federal courts must take judicial notice of laws of all 50 states, but require pleading and proof of foreign country law

Question 3

Penal Law Exception

Answer 3

Under all approaches, court will NOT enforce penal laws of another state

Civil recovery and tax laws are NOT considered penal laws

Question 4

Foreign law: public policy exception

Answer 4

1R and 2R: court can refuse to apply foreign law if it violates FUNDAMENTAL and STRONGLY HELD public policy of forum state (Narrow defense)

If successful, result is dismissal without prejudice

EXCEPTION: can reject a foreign cause of action, but NOT foreign dense (e.g. Nazi laws bad, Nazi defense okay)

Question 5

Substance v. procedure: general principle

Answer 5

Forum law ALWAYS governs procedural

Substantive laws: regulate behavior outside courtroom

Procedural laws: regulate behavior inside courtroom

Question 6

Substance v. procedure: parol evidence

Answer 6

Parol evidence rule is SUBSTANTIVE

Governed by law of state that governs VALIDITY

Question 7

Substance v. procedure: evidentiary privileges

Answer 7

1R: Privilege is PROCEDURAL and is governed by forum

2R: Significant relationship test determines who governs privilege, PREFERENCE for law that would ALLOW evidence

Question 8

Substantive v. procedural: damages

Answer 8

1R: measure + type of damages is SUBSTANTIVE, statutory limits on damages PROCEDURAL

2R: Significant relationship TEST for which law applies. Damage cap is LOSS-SHIFTING, so will generally only apply to protect residents

Question 9

Substantive v. Procedural: Statute of Limitations (1R)

Answer 9

PROCEDURAL

Exception: when statute of limitations INEXTRICABLY BOUND UP with statutory RIGHT, in which case substantive

Question 10

Substantive v. Procedural: Statute of Limitations (2R)

Answer 10

Forum applies its own Statute of Limitations if it would BAR the claim

If it would permit the claim, it should do so unless
1) claim serves no substantial interest of forum AND
2) claim would be barred under SOL of state with more significant relationship

Question 11

Borrowing statutes

Answer 11

Bar suits on foreign causes of action that are precluded under the SHORTER of

1) forum state’s SOL
OR
2) SOL of place where cause of action rose

If other state would BAR, you should BORROW that rule