Thurs. Feb. 11
Holzer
Buchanan v. Doe (Va. 1993)
Dreher v. Budget Rent-A-Car System, Inc. (Va. 2006)
• “The statutes of New York imposing a showing of financial
responsibility as a condition to the registration and operation
of motor vehicles express a strong public policy that a person
injured by the negligence of a driver should have recourse to a
defendant able to respond in damages.” The New York
legislature intended this responsibility to extend extraterritorially. The provisions of N.Y. Law § 388 have been viewed
as showing a “commendable concern not only for residents of
[New York], but residents of other States who may be injured
as a result of the activities of New York residents.”
pleading and proving
foreign law
Fact approach to content of foreign law
Must be pleaded
Proved
Jury
Limited appellate review
Conception of a cause of action as remedial
rule of forum
Personal jurisdiction
Law approach to foreign law
• FRCP 44.1
• A party who intends to raise an issue
concerning the law of a foreign country
shall give notice by pleadings or other
reasonable written notice. The court, in
determining foreign law, may consider
any relevant material or source,
including testimony, whether or not
submitted by a party or admissible
under the Federal Rules of Evidence.
The court's determination shall be
treated as a ruling on a question of law.
failure to plead foreign law
P sues D for looking at him funny – asks for
$100 in mental anguish
D’s only defense is a denial that he looked at P
funny
What happens to case?
Sua sponte?
P sues D under gambling contract
D’s only defense is that he did not breach
consent of parties
regulatory interest of state
P sues D (Californians) under gambling contract
(California K) in Nevada ct
D’s only defense is that he did not breach
…nor shall any state deprive any person of life,
liberty, or property, without due process of
law;
Full faith and credit shall be given in each state
to the public acts, records, and judicial
proceedings of every other state.
P sues D (Iranians) under gambling contract
(Iranian K) in Nevada ct
D’s only defense is that he did not breach
- presume complaint is sufficient
- court may introduce foreign law
sua sponte?
- court must introduce foreign law
sua sponte?
failure to offer evidence of foreign
law
P sues D
Court or D say foreign law applies
P doesn’t know about foreign law
- Swift v. Tyson
- federal and sister state courts
would come to own judgment
about the general common law in a
state even in the face of contrary
decisions
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
- 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
- New York state courts assume that
unsettled sister state law is the
same as New York law
- P sues D in federal court in New
York on an unsettled Pa cause of
action…
- A nationwide class action is
brought in NY state court
concerning a provision in the UCC
- New York courts have read the
provision in one way
- 6 other states have read the same
provision a different way
- what about the 43 other states…?
Walton v Arabian American Oil Co (2d Cir 1956)
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
Statutory solutions