You are on page 1of 9

PLEADING FOREIGN LAW

o Rule: A court cannot take judicial notice of the foreign law, unless plaintiff
meets his burden of proving the law in a way adequate to assist the court in
learning it (Walton v. Arabian American Oil). Note: not a question of fact
for the jury
o Presumption: some courts presume that US law is the same as other
common law countries; and if parties agree and show that the law is
substantially similar, then they assume that US law is the same civil
law countries.

TRADITIONAL RULES
o Tort (Lex Locus Delictus): place of the wrongstate where the last event
necessary to make an actor liable for an alleged tort takes place
o Applies to: (1) existence of a legal injury; (2) defendants standard of
responsibility; (3) contributory negligence; (4) the fellow-servant rule;
(5) vicarious liability; (6) defenses to liability; (7) survival of actions;
and (8) measure of damages.
o Two Exceptions: (1) standard of care; and (2) if act required,
forbidden, or privileged under the law of the place of the action.
o Contract (Lex Locus Contractus): the law of the place of the makingthe
place where the principal event necessary to make a contract binding occurs
o Exceptions: place of performance applies to (1) manner; (2) time and
locality; (3) person or person by whom or to whom performance must
be made or rendered; (4) sufficiency of performance; and (5) Excuse
for non-performance. Note: this can be used as an escape device for
K cases.
o Property (Situs):
o Land: the law of the location of the land applies to nearly all questions
concerning interests in land (In re Barries Estate)
o Inter vivos transactions: place where the movable was located at the
time of the transaction (Note: conveyance could be recharacterized as
a K)
o Succession of movables: law of the place of domicile (White v.
Tennant). Note: forum law determines domicile
ESCAPE DEVICES
o Characterization: no clear rules, just look to see which characterization
produces the better results (aka substantivism) (see e.g. Arkansas telegraph
cases)
o Substances/Procedure: procedural matters are governed by the law of the
forum.
o Ex. Procedure: Burden of proof, contributory negligence, evidence,
SOL, presumptions, set-offs, enforcing judgments, proof of foreign
law (see hornbook pg 167).
o Ex. Not Procedure: parole evidence, privileges, SOF
o Problem: Marie v. Garrison NY void is substantive; and Missouri
unenforceable is procedural, so neither applied.
o Renvoi: if the forums COL rule directed the choice of Xs law and the result
was offensive, the court could read Xs law to mean Xs whole law
including COL ruleswhich might refer the issue back to forum law.
o First Restatement: only used for (1) title to land; and (2) validity of a
divorce
o Second Restatement: only used if (1) disinterested forum; and
(2) forum COL wants to reach same results as would courts of another
state
o Federal Tort Claims Act: requires whole law of place of injury
o Public Policy Exception: court can refuse enforcement of foreign law if
would violate some fundamental principle of justice, some prevalent
conceptions of good morals, some deep-rooted tradition of the common weal
(Loucks v. Standard Oil).
o It is found in states Constitution and lawsnot courts judgment
(Mertz).
o Dpeage: application of different laws to different issues in the case.
o Ex. law of the place of injury applied to question of immunity, and
place of contracting applied to the K interpretation (Jacek).
INTEREST ANALYSIS
o Center of Gravity (aka grouping of contacts): looks to the law of the
place which has the most significant contacts with the matter (Auten;
Stolarz; Seton Hall)
o Identifying False Conflicts: If the policy of only one state would be
furthered by applying it in the case at bar, then it is a false conflictcourt
should apply the law of the only interested state. (Babcock v. Johnson)
o Neumeier Rules: (use for loss allocating laws; not conduct regulating)
1. If plaintiff and defendant are domiciled in the same state, then apply
that law. (Note: depends on domicile at time of tort (Boy Scouts))
2. Apply the law of the place of the accident, if it is a true conflict
where: (a) plaintiff aced in a plaintiff protective state of his domicile;
or (b) defendant acted in a defendant protective state of his domicile
3. In all other cases, apply lex loci, unless interest of the well-
functioning system of interstate justice requires another states law to
be applied (aka center of gravity test).
o The Unprovided-For Case: when neither states policy would be
advanced by applying its law to the problem; then apply forum law (Erwin)
o Kramer: common interest rule: courts should adopt policy-selecting
rules the apply the law that reflects a generally shared policy or policy
preference. (There is never an unprovided-for case or a false conflict)
INTEREST ANALYSIS CONTINUED
o Resolving True Conflicts: arises when the policies of each state would be
furthered by the application of its to the case. First Step: reconsider laws of
each state to see if conflict can be avoided with a more moderate or
restrained interpretation of the policy or interest of one state.
o Apply Forum law (Currie; Lilienthal)
o Comparative Impairment (Baxter): normative resolution of real
conflict cases by applying the law of the state whose interests would
be most impaired if its law were not applied. STEPS:
Analyze the state policies in a wholly domestic situation
Is there a conflict?
If yes, forum should reexamine its own policy to determine if a
more retrained interpretation is more appropriate
If conflict exists, determine how the laws would be advanced or
impaired by application of its law or a sister states
Apply law of state that would be most damaged by application
of the other states law (Note: impairment depends on how
strongly a states policy is held (see Offshore Rental)).
o Principles of Preference (Cavor): limited to certain tort and K law
problems, it emphasizes fairness to the parties and deference to their
territorially justified expectations
Place of injury should apply if it is more protective of plaintiff
than the law of the state in which the defendant resides or acted
Law of place of the state where defendant acted should apply if
it is less protective than the law of plaintiffs home state
To Ks, apply law of state if it protects party from that state and
the transaction was centered there. Exception: COL clause
o Kramer: common interest rule (above)
PARTY AUTONOMY / RULE OF VALIDATION
Rule of Validation: parties are presumed to enter into valid Ks, so courts will
apply the law that will validate the obligations (Pritchard, Siegelman)
Party Autonomy: parties are free to explicitly choose foreign law by reference
for purposes of interpretation and construction. (Second Restatement 187(2))
o Second Restatement: two requirements: (1) substantial relationship
between K and COL; and (2) does not violate public policy of
jurisdiction having a materially greater interest than state designated.
SECOND RESTATEMENT MOST SIGNIFICANT RELATIONSHIP
1. Determine if there is a conflict between the laws of an inter-state conflict.
(If no conflict exists, then states should be grouped as if a single state ( 145
cmt i))
2. Apply statutory COL directive (if existent)
3. Territorial Presumptions, unless overcome by most significant relations ( 6)
4. If no presumption, court should refer to 145 (torts) or 188 (Ks)
o Specific Tort Contacts
a. Place of the injury
b. Place where the conduct causing injury occurred
c. The domicil, residence, nationality, place of incorporation, and
place of business of the parties
d. The place where the partys relationship (if any) is centered
o Absent a COL clause, specific K Contacts
a. The place of the contracting
b. The place of the negotiations
c. The place of performance
d. The location of the subject matter of the K
e. The domicil, residence, nationality, place of incorporation, and
place of business of the parties
5. Second Restatement 6 (2) general considerations: (see Phillips pg 37)
a. The needs of the interstate and international systems
b. The relevant policies of the forum
c. The relevant policies of other interested states and the relative interests
of those states in the determination of the particular issue
d. The protection of justified expectations
e. The basic policies underlying the particular field of law
f. Certainty, predictability, and uniformity of result
g. Ease in the determination and application of the law to be applied
*(b) and (c) are interest analysis; use (d) (g) to resolve true conflicts
*NOT mere grouping of contacts analysis

LEFLARS BETTER LAW


o 5 Choice Influencing Considerations:
1. Predictability (K cases)
2. Maintenance of Interstate and International Order (false conflicts)
3. Simplification of Judicial Task (procedure = forum)
4. Advancement of Forums Interests
5. Application of the Better Law (absent strong forum policy)
DEF Better Law: rule that makes good socio-economic sense
for the time when the court speaks (Japson sometimes laws
are just different, neither is better)
Ex. Guest statutes are not the better law (Milkovich)
MODERN CHOICE OF LAW AND ESCAPE DEVICES
o Dpeage: apply the rule of different states to different issues in a single
case, depending on which state has the greatest interest in having its law
applied (Adams Hypo).
o Currie Counter: It is one thing to fall between two stools; it is quite
another to put together half a donkey and half a camel, and then right
to victory on the synthetic hybrid.
o Renvoi: NO renvoi in interest analysis
o Kramer Counter: COL effects subjective policies of other states, so
COL should be taken into account to make its determination
o Tie-breaker: renvoi can be used as a tiebreaker between interested
states (American Motorists; Phillipspg 37)
COMPLEX LITIGATION
o Klaxon COL rule of the court of initial filing applies
o Van Dusen If the case is transferred Plaintiff keeps her COL rules
o Agent Orange national consensus law

FOREIGN LAWS (CYBERSPACE CASES)


o Foreign countrys right to regulate: foreign countries have every right to
regulate wholly or in substantial part:
1. Anything that take place in its territory
2. Country outside that has or is intended to have substantial effect in its
territory
o Recognition of Foreign Judgments: the extent to which US honors judicial
decrees of foreign nations is a matter of choice, which is governed by the
comity of nations.
o Conflicts with Constitution: American courts tend not to enforce
judgments founded on foreign law that conflicts with the First
Amendment
o ALI Foreign Choice of Law See Outline pg 34 for factors
CONSTITUTION AND CHOICE OF LAW
o RULE: State must have significant contacts or aggregation of contacts
creating state interests with the parties and the occurrences or transaction to
ensure that the COL is neither arbitrary nor fundamentally unfair (Allstate)
o DP: without contacts the litigation it would cause unfair surprise
(Dick)
o FFC: contacts requirement reduces interstate friction (Clapper).
RULE: FFC does not require state to substitute the laws of
other states for its own when dealing with a subject matter with
which it has an interest (Pacific Employers)
o Interpreting Other States Laws: To constitute a violation of FFC or the
DP Clause, it is not enough that the state court misconstrue the law of
another State; rather the misconstruction must contradict law of the other
State that is clearly established and that has been brought to the courts
attention (Sun Oil).
o FFC Rules
o State cannot dictate that it is the only state which can adjudicate a
particular dispute
o States cannot refuse to adjudicate transitory actions