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) B
ut 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?