Lecture 11 Oct. 8, 2018

pleading and proving foreign law

fact approach to content of foreign law

must be pleaded proved jury limited appellate review

law approach to foreign law

failure to plead foreign 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

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?

can they say that ancient Roman law or the law of Gondor applies 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)

Frank’s dissent

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.

interest analysis

Harris v. Harris (Ga. 1984) two married but separated Georgians get into car accident in Georgia in which husband is negligent – wife sues does Georgia spousal immunity rule apply?

purposivism textualism

two married Californians get into car accident in Georgia in which husband is negligent, wife sues does Georgia’s spousal immunity rule apply?

Wis. Stat. § 895.03 (action for wrongful death “caused in this state”)

Millikan v Pratt Mass D contracted with Maine Ps to guarantee D’s husband’s payment Sent by her husband by mail from Mass to Maine D’s husband did not pay Ps demanded of D She refused Mass had law not allowing married women to contract as surety Maine didn’t

GA: interspousal immunity. CA: interspousal liability Domicile GA: interspousal immunity CA: interspousal liability Domicile Accident Forum 1st R State Inter. CA CA CA CA CA CA CA GA CA CA CA GA CA GA CA CA GA GA GA CA GA CA CA CA GA CA GA CA GA CA GA CA GA GA CA GA GA GA GA GA GA GA

true conflicts

false conflicts

Is it a “false conflict” when each jurisdiction has law with the same content…?

Marie v Garrison Mo K, suit in NY NY’s statute of frauds – no contract shall be valid unless in writing MO statute of frauds – no contract shall be enforced unless in writing

finding false conflicts…

Babcock v. Jackson (NY 1963) NY P – guest in car w/ NY D Crashed into stone wall in Ontario Does Ontario’s guest statute apply?

Dym v Gordon (NY 1965) P and D both NY domiciliaries BUT taking courses at U of Colo Collision with another vehicle (from Kansas) in Colo Does Colo guest statute apply?

How is Dym different from Babcock?

Tooker v. Lopez (NY 1969)

how is Tooker similar to Babcock? how is Tooker similar to Dym?

does the reinterpretation of the guest statute as concerning fraud really point to the D’s domicile?

Fuld’s concurrence…

Breitel’s dissent

what about Susan Silk?

Schultz v Boy Scouts of America (NY 1985)