Questions on Pleading and Proving Foreign Law
1) Some
of this topic can be easily understood – such as the traditional
treatment of
foreign law as a question of fact. It is important to see that this
approach
has been changed, by allowing courts to take judicial notice of foreign
law.
2) But
the more confusing issue is whether a plaintiff must plead foreign law.
To make
sense of this topic, it is better to start with a purely domestic case.
Assume
a complaint is filed in New York
state court. The complaint states that the defendant (a New
York domiciliary) looked at the plaintiff (a New
York domiciliary) in a funny way (in New
York) and that the plaintiff wants one million
dollars in punitive damages. Can the defendant get the action dismissed
simply
because the plaintiff has not alleged what New
York
law he is suing under? Is there a requirement to plead domestic law? Or
isn’t
the complaint deemed to be legally sufficient unless the defendant
brings the
matter up (for example, through a motion to dismiss for failure to
state a
claim)?
3) If
a complaint is deemed legally sufficient in a domestic context, why
shouldn’t the
same thing be true in a choice of law context? How would the Walton
case come
out if the complaint was deemed sufficient?
4) What’s the
difference between presuming that
the complaint is legally sufficient in a choice of law context and
presuming that
domestic law applies?