1. Lecture 7 9/24/18

2. Final: December 11 at 8:30 am in Room 124

3. review session and makeups

4. I need - exam schedule before Dec. 11 - weekly schedule for makeup

5. substance/procedure

6. an issue is “substantive” in the content sense if it is a question of what people should do independent of litigation activity a law is “substantive” in the content sense if it answers such a question an issue is “procedural” in the content sense if it is a question of what courts and litigants should do a law is “procedural” in the content sense if it answers such a question

7. an issue is “substantive” in the conclusory sense if the law of the sovereign that created the cause of action should be used an issue is “procedural” in the conclusory sense if the law of the forum should be used

8. a law is “substantive” in the scope sense if it is intended by the lawmaker to be used in other court systems a law is “procedural” in the scope sense if it is intended by the lawmaker to be used only in the lawmaker’s courts

9. substance/procedure questions

10. first approach – use content of issue to determine which law to use if the issue is procedural in the content sense, it is procedural in the conclusory sense (forum law is used) if the issue is substantive in the content sense, it is substantive in the conclusory sense

11. second approach determine whether the laws are substantive or procedural in the scope sense and then resolve conflicts

12. third approach: rules of thumb use an easily applied rule that one thinks does an overall good job of balancing jurisdictional interests without considering the scope of individual laws

13. 1st Rest. – largely first approach

14. § 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.

15. § 595. Proof Of Facts
(1) The law of the forum governs the proof in court of a fact alleged.
(2) The law of the forum governs presumptions and inferences to be drawn from evidence.

16. exceptions in 1st Rest. in which 2nd or 3rd approach is used

17. parol evidence rule

18. § 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.

19. statute of frauds Marie v. Garrison

20. burdens of proof

21. 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.

22. limitations on damages

23. Section 412
The measure of damages for a tort is determined by the law of the place of wrong.

24. § 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.

25. privileges

26. 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.

27. statutes of limitations

28. § 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.

29. § 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.

30. Suit in NY on Mass cause of action, 1.5 year wait 1) Mass. 2 yr. subst., NY 1 yr. proc. - preclusive effect of dismissal? 2) Mass. 1 yr. subst., NY 2 yr. proc. - preclusive effect of dismissal? 3) Mass. 2 yr. proc., NY 1 yr. proc. - preclusive effect of dismissal? 4) Mass. 2 yr. subst., NY 1 yr. subst. 5) Mass. 2 yr. proc., NY 1 yr. subst.

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

32. Davis v. Mills test

33. how can you determine whether another jurisdiction’s statute of limitations is substantive or procedural?

34. Two other approaches to the problem were suggested in our opinion in Wood & Selick, Inc….First, that the foreign law might be examined to see if the defense possessed the attributes which the forum would classify as "procedural" or "substantive"; that is, for example, whether the defense need be pleaded, as a "substantive" period of limitations need not be in this country. Second, the foreign law might be examined to see if the operation of limitation completely extinguished the right, in which case limitation would be regarded as "substantive." Still other tests are suggested by Goodwin v. Townsend — namely, whether the foreign limitation is regarded as "procedural" or "substantive" by the courts of the foreign state concerned, and possibly whether the limitation is cast in language commonly regarded as "procedural."

35. assume that there has been a judgment in your favor you wait to sue on the judgment beyond the stat lims if you had not sued but you are within the time to renew the judgment if they won’t allow you to renew the stat lims is part of the right…

36. 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? Mass ct refuses to apply Mass 2 year stat lims to CT wrongful death action with 3-year stat lims?

37. how about using the way that Mass cts treat other jurisdictions’ statutes of limitations…?

38. assume that Mass courts read all sister state limitations periods as procedural a New York court is trying to determine whether a Mass 2 year stat lims for wrongful death is substantive or procedural

39. federal law in state court is different

40. - P sues D in state court under FELA
- 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)

41. - P sues D in state court under FELA
- 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)

42. 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?

43. a federal court in NY is entertaining a PA cause of action the PA 3-year stat lims is procedural NY has a 2 year procedural stat lims can the federal court use is own common law stat lims?

44. borrowing statutes

45. 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.

46. renvoi désistement

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

48. 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.…

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

50. won’t renvoi lead to infinite circles?

51. partial renvoi

52. can’t there ever be total renvoi cases?

53. 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
how should the English court decide then?
it concluded that French law should be used because that is how a French court had ruled in the past
does that make sense?

54. 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.’

55. 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

56. 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

57. - 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