substance/procedure
A NY state court wants to know
whether it should use PA’s statute of
limitations (damages limitations,
burden of proof, evidentiary rule)
with the PA cause of action
How can it tell whether PA wants it
to be used by sister state courts?
If PA cts use the rule for sister state
causes of action do we know it is
not substantive?
No – it could be procedural and
substantive.
If PA cts refuse use the rule for
sister state causes of action do we
know it is substantive?
No – it could be procedural but
applicable only to PA causes of
action.
A PA statute creating a wrongful
death action specifies the service
rule for such actions.
The service rule is not applied by PA
cts to sister state wrongful death
actions.
Does that mean the service rule is
substantive?
renvoi
désistement
in re Schneider’s Estate
(Sur. Ct. N.Y. 1950)
• 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.…
•
•
•
•
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 – use law of nationality
• A French court had decided this issue as follows
– Choose English law, but whole law which referred
back to French internal law
• English court in In re Annesley says, French court
was wrong
• English court would refer to whole law of France
• 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.’
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
• 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
- 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
- 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
Public Policy Exception
Loucks v Standard Oil
(NY 1918)
• “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 deeprooted tradition of the common weal.”
• “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.”
Mertz v Mertz (NY 1936)
• 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.”
• Mertz
• “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.”
Holzer v Deutsche ReichsbahnGesellschaft (NY 1938)