1. Lecture 6 Jan. 29, 2018

2. substance/procedure

3. Grant v McAuliffe (Cal. 1953)

4. how to tell whether a rule is substantive or procedural (or both)?

5. spheres of exclusive regulatory authority does the rule regulate primary activity or litigation?

6. interests of forum/other sovereign?

7. modern approaches – largely purposive

8. 1st Rest. – largely formalistic

9. § 592. Procedure In Court The law of the forum governs all matters of pleading and the conduct of proceedings in court.   § 594. Mode Of Trial The law of the forum determines whether an issue of fact shall be tried by the court or by a jury.   § 596. Witnesses The law of the forum determines the competency and the credibility of witnesses.   § 597. Evidence The law of the forum determines the admissibility of a particular piece of evidence.

10. exceptions to 1st Rest. formalism

11. parol evidence rule burdens of proof limitations on damages statute of limitation statute of frauds

12. § 599 Integrated Contracts When a contract is integrated in a writing by the law of the place of contracting, no variation of the writing can be shown in another state which could not be shown in a court in the place of contracting under the law of that state, whatever the law of the other state as to integrated contracts.

13. Comment to 595
Thus, if a requirement concerning proof of freedom from fault exists in the law of the place of injury and if such condition is there interpreted as a condition of the cause of action itself, or as affecting the nature or amount of recovery, the court at the forum will apply the rule of the foreign state (see § 385). In such a case, the remedial and substantive portions of the foreign law are so bound together that the application of the usual procedural rule of the forum would seriously alter the effect of the operative facts under the law of the appropriate foreign state.

14. § 606. Limitation Of Amount Recoverable
If a statute of the forum limits the amount which in any action of a certain class may be recovered in its courts, no greater amount can be recovered though under the law of the state which created the cause of action, a greater recovery would be justified or required.

15. Such a limitation is imposed only by a statute; and it is a question of interpretation whether the statute qualifies the cause of action, applying therefore only to a cause of action created by the statute, wherever sued on; or whether it is to be construed as limiting the amount of recovery in any action of the type described brought in the state, wherever the right was created; or whether (as in some instances) it has both effects.

16. - Mass (place of plane crash) has a damage limitation of one million for wrongful death - suit is in NY state court - NY has damage limitation for wrongful death of $ ½ million - NY limitation procedural, MA limitation substantive - ½ mill.? - NY limitation procedural, MA limitation procedural only - ½ mill. - NY limitation substantive only, MA limitation substantive - 1 mill. - NY limitation substantive only, MA limitation procedural only - ∞

17. statute of frauds

18. Marie v Garrison case
Suit in NY concerning oral K entered into in Mo
Both Mo and NY had a statute of frauds
NY law said K’s “shall be void” if not in writing
Mo law said no K action “shall be brought” if oral
Which, if any, applies?

19. Kilberg v NE Airlines
Plane crash in Mass
Ticket bought in NY
NY P, Mass D
Mass limitation on damages for wrongful death
Suit in NY
Does the Mass limit on damages apply?

20. other substance procedure problems…

21. direct action (sue directly against insurer)

22. P (CA) and D (CA) get into an accident in CA
P (CA) and D (CA) get into an accident in CA. P sues D’s insurer in NV state ct CA law does not allow direct actions NV law does

23. privileges

24. In Alabama, a business man doing business in Alabama, gives certain information to an accountant, which is not privileged under Alabama local law. The information would, however, be privileged under the local law of Mississippi, the forum.
Is the information admissible?

25. 2nd Restatement
§ 139. Privileged Communications
(1) Evidence that is not privileged under the local law of the state which has the most significant relationship with the communication will be admitted, even though it would be privileged under the local law of the forum, unless the admission of such evidence would be contrary to the strong public policy of the forum.
(2) Evidence that is privileged under the local law of the state which has the most significant relationship with the communication but which is not privileged under the local law of the forum will be admitted unless there is some special reason why the forum policy favoring admission should not be given effect.

26. statutes of limitations

27. § 603. Statute Of Limitations Of Forum If action is barred by the statute of limitations of the forum, no action can be maintained though action is not barred in the state where the cause of action arose. § 604. Foreign Statute Of Limitations If action is not barred by the statute of limitations of the forum, an action can be maintained, though action is barred in the state where the cause of action arose.

28. § 605. Time Limitations On Cause Of Action If by the law of the state which has created a right of action, it is made a condition of the right that it shall expire after a certain period of limitation has elapsed, no action begun after the period has elapsed can be maintained in any state.

29. Suit in NY on Mass cause of action, 1.5 year wait 1) Mass. 2 yr. subst., NY 1 yr. proc. - dismiss - preclusive effect of dismissal? 2) Mass. 1 yr. subst., NY 2 yr. proc. - dismiss - preclusive effect of dismissal? 3) Mass. 2 yr. proc., NY 1 yr. proc. - dismiss - preclusive effect of dismissal? 4) Mass. 2 yr. subst., NY 1 yr. subst. - do not dismiss 5) Mass. 2 yr. proc., NY 1 yr. subst. - do not dismiss

30. Bournias v Atlantic Maritime Co Ltd. (2d Cir. 1955)

31. NY court is trying to determine whether a Mass 2 year stat lims for wrongful death is subst or proc - Mass ct applies Mass 2 year stat lims to Mass wrongful death action? - Mass ct applies Mass 2 year stat lims to CT wrongful death action with 3-year stat lims? - Mass ct refuses to apply Mass 2 year stat lims to NH wrongful death action with 1-year stat lims?

32. what about federal causes of action…?

33. - P sues D in state court under FELA - FELA has a two-year statute of limitations - the forum state has a three-year procedural statute of limitations - P has waited two and a half years to sue - is P barred? Atlantic Coast Line Railroad Co. v. Burnette (US 1915)

34. - P sues D in state court under FELA - FELA has a two-year statute of limitations - the forum state has a one-year procedural statute of limitations - P has waited one and a half years to sue - is P barred? - Engel v. Davenport (US 1926)

35. what about state law actions in federal court…?

36. Guar. Trust v. York NY actions brought in federal court in NY NY has a stat of lims of 2 years can federal court use its own common law lims (laches)? does it matter whether the NY stat lims is subst. or procedural?

37. borrowing statutes

38. 2nd Rest - § 142. Statute Of Limitations The following § 142 replaces the original §§ 142 and 143: Whether a claim will be maintained against the defense of the statute of limitations is determined under the principles stated in § 6. In general, unless the exceptional circumstances of the case make such a result unreasonable: (1) The forum will apply its own statute of limitations barring the claim. (2) The forum will apply its own statute of limitations permitting the claim 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 a more significant relationship to the parties and the occurrence.

39. renvoi désistement

40. in re Schneider’s Estate (Sur. Ct. N.Y. 1950)

41. why the exception to the no-renvoi rule for real property…?

42. The primary reason for its existence lies in the fact that the law-making and law- enforcing agencies of the country in which land is situated have exclusive control over such land. As only the courts of that country are ultimately capable of rendering enforceable judgments affecting the land, the legislative authorities thereof have the exclusive power to promulgate the law which shall regulate its ownership and transfer.…

43. what is the Swiss choice-of-law rule…?

44. doesn’t this lead to circling…?

45. British subject in France dies what law governs her movable property
In re Annesley
British subject in France dies
what law governs her movable property
English choice-of-law rule – law of domicile at death
French choice-of-law rule –law of nationality
A French court had decided this issue as follows
Choose English law, but whole law of England, which referred back to internal French law
English court in In re Annesley says, French court was wrong
English court would refer to whole law of France

46. Section 8. Rule in questions of title to land or divorce.
(1) All questions of title to land are decided in accordance with the law of the state where the land is, including the Conflict of Laws rules of that State.
(2) All questions concerning the validity of a decree of divorce are decided in accordance with the law of the domicile of the parties, including the Conflict of Laws rules of that State.’

47. 2nd Restatement Renvoi if
- the objective of the particular choice of law rule is that the forum reach the same decision as that of another state (on the same facts)
Examples:
validity and effect of transfer of interests in land
and succession of interests in movables in a decedents estate

48. Massachusetts wants marriages celebrated in Mass to be valid if they are valid according to a standard upon which the parties might have reasonably relied
Mass will treat a marriage entered into in Mass as valid if it is in accordance with Mass law or the law of the parties’ domicile
Two Virginians who are cousins get married in Mass
Marriage is illegal under Mass law but not Virginia law
Marriage is being adjudicated by a Wisconsin court, which uses the place of celebration rule

49. - CA ct is determining validity of will concerning personalty in CA - decedent was domiciled in CA at time of execution of will and executed will in CA - but decedent was domiciled in NY at time of death - will is valid under CA law, not valid under NY law - CA's choice of law rules is that the domicile of the decedent at death determines the validity of a will - NY wants to protect the expectation of the testator, so says a will is valid if it is valid under the law of either the domicile at the time of execution, or the domicile at death or the place of execution

50. Loucks v Standard Oil (NY 1918)

51. “The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness. They do not close their doors unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.”

52. - assume that Cardozo had accepted that public policy exception applied - what would he have done: - dismissed action? - applied NY law (normal tort law)? - applied Mass law without Mass statute?

53. “A foreign statute is not law in this state, but it gives rise to an obligation, which, if transitory, ‘follows the person and may be enforced wherever the person may be found.’ The plaintiff owns something, and we help him to get it. We do this unless some sound reason of public policy makes it unwise for us to lend our aid. ‘The law of the forum is material only as setting a limit of policy beyond which such obligations will not be enforced there‘ (Cuba R. R. Co. v. Crosby, supra, 478). Sometimes, we refuse to act where all the parties are non- residents. That restriction need not detain us: in this case all are residents. If aid is to be withheld here, it must be because the cause of action in its nature offends our sense of justice or menaces the public welfare.”

54. assume that after the dismissal, the action is brought in Conn
assume that after the dismissal, the action is brought in Conn. can the defendant argue res judicata?