Thurs. Feb. 11

Holzer

Buchanan v. Doe (Va. 1993)

Dreher v. Budget Rent-A-Car System, Inc. (Va. 2006)

“The statutes of New York imposing a showing of financial responsibility as a condition to the registration and operation of motor vehicles express a strong public policy that a person injured by the negligence of a driver should have recourse to a defendant able to respond in damages.” The New York legislature intended this responsibility to extend extra- territorially. The provisions of N.Y. Law § 388 have been viewed as showing a “commendable concern not only for residents of [New York], but residents of other States who may be injured as a result of the activities of New York residents.”

pleading and proving foreign law

Fact approach to content of foreign law

Must be pleaded Proved Jury Limited appellate review

Conception of a cause of action as remedial rule of forum Personal jurisdiction

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 sues D for looking at him funny – asks for $100 in mental anguish D’s only defense is a denial that he looked at P funny What happens to case?

Sua sponte?

P sues D under gambling contract D’s only defense is that he did not breach

consent of parties regulatory interest of state

P sues D (Californians) under gambling contract (California K) in Nevada ct D’s only defense is that he did not breach

…nor shall any state deprive any person of life, liberty, or property, without due process of law;

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.

P sues D (Iranians) under gambling contract (Iranian K) in Nevada ct D’s only defense is that he did not breach

- presume complaint is sufficient - court may introduce foreign law sua sponte? - court must introduce foreign law sua sponte?

failure to offer evidence of foreign law

P sues D Court or D say foreign law applies P doesn’t know about foreign law

- Swift v. Tyson - federal and sister state courts would come to own judgment about the general common law in a state even in the face of contrary decisions

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

- 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

- New York state courts assume that unsettled sister state law is the same as New York law - P sues D in federal court in New York on an unsettled Pa cause of action…

- A nationwide class action is brought in NY state court concerning a provision in the UCC - New York courts have read the provision in one way - 6 other states have read the same provision a different way - what about the 43 other states…?

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

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