1. Lecture 7 Jan. 31, 2018

2. substance/procedure

3. - suit under foreign law - should forum or a foreign rule be used
- suit under foreign law - should forum or a foreign rule be used? - does the forum and/or the foreign rule extend to the matter? - if both do, what should the court do in a conflict?

4. 1st Restatement: spheres of exclusive regulatory authority does the rule regulate primary activity or litigation (right v. remedy)?

5. exceptions to 1st Rest. formalism

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

7. modern approach: look to interests of forum and other sovereigns no distinction between substance and procedure

8. 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.

9. statutes of limitations

10. § 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.

11. § 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.

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

13. suit in NY on Mass cause of action, 1.5 year wait 1) Mass. 2 yr. subst., NY 1 yr. proc. - dismiss - no preclusive effect to dismissal 2) Mass. 1 yr. subst., NY 2 yr. proc. - dismiss - preclusive effect to dismissal 3) Mass. 2 yr. proc., NY 1 yr. proc. - dismiss - no preclusive effect to 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…?

14. NY court is trying to determine whether a Mass 2-year statute of limitations for wrongful death is substantive or procedural - Mass court applies Mass 2-year statute of limitations to Mass wrongful death action? - nothing - Mass court applies Mass 2-year statute of limitations to CT wrongful death action with 3-year statute of limitations ? - means procedural, but could be substantive too - Mass court refuses to apply Mass 2-year statute of limitations to NH wrongful death action with 1-year statute of limitations ? - evidence that it is substantive, but might be yielding its procedural limitation period to what it thinks is NH substantive rule - Mass court refuses to apply Mass 2-year statute of limitations to CT wrongful death action with 3-year statute of limitations ? - evidence that it is substantive but the fact that a Mass court will only apply the 2-year period to a Mass action does not mean that it thinks that the period follows the action into other court systems

15. reverse-Erie (federal law in state court) does not have the same problems because the United States SCt can take the case on appeal

16. Erie (state law in federal court) has extra concerns - suit under NY law in federal court in NY - federal court will use NY statute of limitations (rather than coming up with a common law limitations period) even if NY does not think its limitations period is substantive - suit under PA law in federal court in NY - federal court will use statute of limitations used by a NY state court

17. modern approaches to statutes of limitations in horizontal choice of law

18. borrowing statutes

19. 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.

20. renvoi désistement

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

22. 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.…

23. 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

24. 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.’

25. 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

26. 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

27. - 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

28. public policy exception

29. Loucks v Standard Oil (NY 1918)

30. “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.”

31. - 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?

32. “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.”

33. 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?

34. Mertz v Mertz (NY 1936)

35. Mertz
“The term ‘public policy’ is frequently used in a very vague, loose or inaccurate sense. The courts have often found it necessary to define its juridical meaning, and have held that a state can have no public policy except what is to be found in its Constitution and laws. Therefore, when we speak of the public policy of the state, we mean the law of the state, whether found in the Constitution, the statutes or judicial records.”

36. 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?

37. Mertz – another justification
“The law of the forum determines the jurisdiction of the courts, the capacity of the parties to sue or be sued, the remedies which are available to suitors and the procedure of the courts. Where a party seeks in this state enforcement of a cause of action created by foreign law, he can avail himself only of the remedies provided by our law, and is subject to their limitations.”