Lecture 9 Feb. 7, 2018

pleading and proving foreign law

fact approach to content of foreign law

must be pleaded proved jury limited appellate review

cause of action was really under the law of the forum – foreign law was a fact concerning the availability of recovery

law approach to foreign law

FRCP 44.1 A party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination shall be treated as a ruling on a question of law.

failure to plead foreign law

P (NY) sues D (NY) for not inviting P to NY party, causing emotional harm asks for $1 million in damages P sues D in NY state court no one mentions which NY law applies what happens?

imagine D brings up failure to state a claim how does he show it?

P (NY) sues D (NY) for using P in an ugliest bride contest on the radio in NY asks for $1 million in damages P sues D in Cal. state court Cal. has law of intentional infliction of emotional distress no one mentions NY law what happens?

imagine D brings up failure to state a claim under NY law how does he show it?

sua sponte?

2 Californians enter into gambling contract in Cal, with performance in Cal - gambling contracts are illegal under Cal. Law - the parties offer no evidence of Ca. law however - if the suit were brought in Nevada state court, where gambling contracts are legal, can the court presume that Ca. law is like Nev. law?

failure to offer evidence of foreign law

- put burden on plaintiff and dismiss - put burden on defendant and assume states a claim - put burden on party best able to identify law - put burden on court - use presumption about what law is like to allow case to proceed

presumptions - that common law applies in a common law jurisdiction (that is, has not been abrogated by statute) - that fundamental law applies in a jurisdiction - that law of the jurisdiction is like the forum’s

Walton v Arabian American Oil Co (2d Cir 1956)

P (Ark) sues D (Del) for negligence of D’s employee in Saudi Arabia complaint simply alleges negligence of employee, damages etc. no one mentions which law applies what happens?

New York Civil Practice Act, § 344-a judicial notice statute

Louknitsky v. Louknitsky - California state court determining spousal rights in marital property of couple, now domiciled in Ca., while they were in China - presumed Chinese law was the same as California’s community property system

Statutory solutions

Uniform Probate Code

Borrowing statutes – statutes of limitations Borrow statute of limitations period Where cause of action arose? Of substantive law?

in Washington for many many years then briefly in Idaho, where sued West v Theis (Idaho 1908) statute of limitations starts running in Kansas, but D leaves state, tolling it Because no PJ in Kansas cts in Washington for many many years More than anybody’s statute of limitations then briefly in Idaho, where sued Idaho had borrowing statute that looked to statute of limitations of state where cause of action arose (Kansas) Is the action barred?

Bridge Prods. Inc. v. Quantum Chem. Corp. (ND Ill 1990) Property bought in VA Del choice of law provision in K Suit in Ill Should court use Del statute of limitations? Or should it use the statute of limitations that would be applied by an Illinois court? In this case it was VA’s

Party Autonomy

Choice-of-law clauses in contracts Choice of law that validates contracts Could be used even when no choice-of-law provisions exists Could be used to choose law other than the law in the choice-of-law clause

Rest 2d § 188. Law Governing In Absence Of Effective Choice By The Parties (1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6. … (3) If the place of negotiating the contract and the place of performance are in the same state, the local law of this state will usually be applied, except as otherwise provided in §§ 189-199 and 203.

Rest. 2d § 203. Usury The validity of a contract will be sustained against the charge of usury if it provides for a rate of interest that is permissible in a state to which the contract has a substantial relationship and is not greatly in excess of the rate permitted by the general usury law of the state of the otherwise applicable law under the rule of § 188.

- two NYers enter into a loan contract in Illinois with performance in NY - interest is 19 %, the maximum allowed in Ill - the maximum in NY is 18% - what if the maximum in NY was 12%?

Two NYers contract in NY to ship goods in NY Under NY law the receiving party is excused from paying until they are received Under Japanese law must pay unless actual breach is clear Can the parties say Japanese law apply with respect to the issue?

Rest 2d § 187. Law Of The State Chosen By The Parties (1) The law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue.

default rules v. mandatory rules

Siegelman: “We think it clear that the federal conflicts rule will give effect to the parties’ intention that English law is to apply to the interpretation of the contract.”

What if Japanese law considers the matter a default rule, but New York law considers a mandatory rule?

Whether the parties could have determined a particular issue by explicit agreement directed to that issue is a question to be determined by the local law of the state selected by application of the rule of § 188. Usually, however, this will be a question that would be decided the same way by the relevant local law rules of all the potentially interested states. On such occasions, there is no need for the forum to determine the state of the applicable law.

- a NY court is considering a contract entered into in NY between a 17 year old NYer and another NYer - under NY law the contract is voidable by the 17 year old - will the court enforce a provision stating that the contract is not voidable by any party? - will the court enforce a provision stating that PA law (which has no protection for 17 year olds) applies?

- a NY court is considering a contract entered into in NY between a 17 year old Pennsylvanian and a Nyer with performance in PA - will the court enforce a provision stating that PA law (which has no protection for 17 year olds) applies?

Seigelman v. Cunard White Star Line (2d Cir 1955)

187(3) In the absence of a contrary indication of intention, the reference is to the local law of the state of the chosen law.

187(2) The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either (a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice, or

(b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.

Mass Insurer contracts with NH insured K says law of Mass applies K entered into in NH insured misstates the distance of house from fire hydrant house burns down under law of Mass, no rights under K because of misstatement under law of NH, still has rights assume that most significant relationship is with NH law

P (Mass) and D (Maine) enter into a contract in Maine with performance in Maine The contract says that the law of Mass applies Under Mass law D has no capacity to contract, because she is a married woman Under Maine law, she has such a capacity

On occasion, the parties may choose a law that would declare the contract invalid. In such situations, the chosen law will not be applied by reason of the parties' choice. To do so would defeat the expectations of the parties which it is the purpose of the present rule to protect. The parties can be assumed to have intended that the provisions of the contract would be binding upon them. If the parties have chosen a law that would invalidate the contract, it can be assumed that they did so by mistake. If, however, the chosen law is that of the state of the otherwise applicable law under the rule of § 188, this law will be applied even when it invalidates the contract. Such application will be by reason of the rule of § 188, and not by reason of the fact that this was the law chosen by the parties.