Proof of Foreign Law and Defenses

Question 1

How are foreign country laws treated in pleadings?

Answer 1

1. Traditional - facts that need to be proven or case will be dismissed
2. Modern - (a) states allowed to take judicial notice, (b) fed must take judicial notice of states but plead / prove foreign law

Question 2

What are the defenses against the application of foreign state law?

Answer 2

1. Penal Law Exception - won’t enforce penal law of another state
2. Public Policy Exception - refuse to apply law (not defense) if violates fundamental + strongly held policy - dismiss w/o prejudice
3. Procedural Law - always apply procedural forum law

Question 3

What is the general principle distinguishing substantive vs procedural law?

Answer 3

1. Substantive law regulates behavior outside court

2. Procedural law regulates behavior inside court

Question 4

Is the parole evidence rule considered procedural or substantive under the procedural rule defense?

Answer 4

Substantive rule - governed by law of state governing validity

Question 5

Are penitentiary privileges considered procedural or substantive under the procedural rule defense?

Answer 5

Traditional - procedural > apply forum law

Significant Contacts - law of state w/ most significant relationship with communication - presumption favor admission

Question 6

Are damages cap considered procedural or substantive under the procedural rule defense?

Answer 6

Traditional - measure / type of damages substantive, limits on damages procedural
Significant Contacts - law of state w/ most significant relationship; damage cap is loss shifting - apply if defendant domiciled in that state

Question 7

Are statutes of limitations considered procedural or substantive under the procedural rule defense?

Answer 7

Traditional - procedural UNL bound by statutory right in which case substantive
Significant Contacts - apply own SoL if would bar claim, otherwise apply UNL (a) maintenance would serve no substantial interest AND (b) claim would be barred in state having more significant relationship with the issue

Question 8

When are suits barred on foreign causes of action under the “borrowing statutes”?

Answer 8

MIN(forum state statute of limtiations, statute of limitations where cause of action arose)