Proof of foreign law and defenses Flashcards
Pleading: traditional approach
Under the traditional approach, a party had to plead and prove foreign law, which was considered to be a fact rather than law.
Failure to prove foreign law would result in dismissal or the forum court’s application of forum law.
Pleading: modern approach
(1) State courts:
Most states allow courts to take judicial notice of the laws of other states.
(2) Federal courts:
Federal courts must take judicial notice of state law.
They require pleading and proof of foreign country law.
Penal law exception
Under all three approaches to choice of law, a court will not enforce the penal laws of another state.
Laws providing for civil recovery and tax laws are not considered penal laws.
Public policy exception
Under both the First and Second Restatements, a court may refuse to apply foreign law if that law violates a (1) fundamental and (2) strongly held public policy of the forum state.
The exception is narrow: It applies only if enforcement of foreign law would violate the forum’s principals of justice or deep-rooted morals and traditions.
If successful, the defense produces a dismissal without prejudice.
Public policy exception: foreign defenses
The exception can be used to reject a foreign cause of action but not a foreign defense.
Substance–procedure distinction
Forum law governs procedural issues, whereas it may not govern substantive issues.
Generally, substantive laws are those that regulate out-of-court behavior, and procedural laws are those that regulate in-court behavior.
Substance–procedure distinction: parol evidence rule
The parol evidence rule is considered substantive because it is aimed at out-of-court behavior: getting people to reduce their contracts to writing.
Substance–procedure distinction: evidentiary privileges
(1) First Restatement:
Because the existence and validity of privileges are considered procedural issues, they are governed by forum law.
(2) Second Restatement:
The law of the state with the most significant relationship with the communication should apply.
There is a strong presumption in favor of the law that would allow admission of the evidence.
Substance–procedure distinction: damages
(1) First Restatement:
The measure and type of damages are regarded as substantive, whereas statutory limits on damages are considered procedural.
(2) Second Restatement:
The most significant relationship standard applies.
(3) Governmental interest analysis:
A damages cap is a loss-shifting rule that protects defendants.
Thus, as a general matter, a state applying the interest analysis—or the Second Restatement approach—will only use its own damage caps to protect a defendant domiciled in that state.
Substance–procedure distinction: statutes of limitations
(1) First Restatement:
Statutes of limitations are considered procedural—unless they are inextricably bound up with a statutory right, in which case they are considered substantive.
For example, a limitations period under a wrongful death statute would be treated as substantive.
(2) Second Restatement:
The forum state generally applies its own statute of limitations if it would bar the claim.
If forum law would permit the claim, it should apply unless:
(a) Maintenance of the claim would serve no substantial interest of the forum; and
(b) The claim would be barred under the statute of limitations of a state having the most significant relationship with the issue.
Statutes of limitations: borrowing statutes
Under borrowing statutes, foreign causes of actions are precluded under the shorter of:
(1) The forum state statute of limitations; or
(2) The statute of limitations of the place where the cause of action arose.
Substance–procedure distinction: procedural issues
The following matters are generally considered procedural for choice-of-law purposes:
(a) The proper court in which to bring an action;
(b) The sufficiency of the pleadings;
(c) The proper or necessary parties to an action;
(d) Venue;
(e) Discovery rules;
(f) Service of process.
Among others.
