1. Lecture 10 Feb. 12, 2018

2. pleading and proving foreign law

3. fact approach to content of foreign law

4. law approach to foreign law

5. failure to plead foreign law

6. failure to offer evidence of foreign law

7. - 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

8. 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

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

10. 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

11. Party Autonomy

12. 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

13. 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 §§ and 203.

14. 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.

15. default rules v. mandatory rules

16. 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 § 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.

17. - 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?

18. - 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?

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

20. 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.

21. 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

22. (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.

23. 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

24. 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

25. 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.

26. interest analysis

27. 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?

28. purposivism textualism

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

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

31. 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

32. 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

33. true conflicts

34. false conflicts

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

36. 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

37. finding false conflicts…

38. 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?

39. 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?

40. How is Dym different from Babcock?

41. Tooker v. Lopez (NY 1969)

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

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

44. Fuld’s concurrence…

45. Breitel’s dissent

46. what about Susan Silk?

47. unprovided-for case