04 Defenses to Choice of Law

What is the rule for public policy as a defense to choice of law?

A forum court will not apply a law that is against its own fundamental public policy. This rule is most applicable to the First Restatement.

Does the public policy defense apply to recognition of judgments?

No, the public policy defense does not apply to the recognition of judgments.

What procedural rule applies to the forum court in choice of law cases?

Regardless of the outcome of the choice of law analysis, the forum court will always apply its own procedural rules.

How are statutes of limitations generally treated in choice of law cases?

Statutes of limitations are generally viewed as procedural and will be governed by the forum court's law, subject to certain exceptions.

What is a borrowing statute, and how does it affect statutes of limitations?

A borrowing statute directs a court to compare the forum state's statute of limitations with the foreign state's limitations period, typically applying the shorter period.

n Hypo 4A, if Shawna sues Denny in Illinois based on an accident in Montana, and Montana has a one-year statute of limitations while Illinois has a two-year statute and a borrowing statute, what result occurs if Shawna sues 18 months after the accident?

The Illinois court will apply Montana's one-year statute of limitations, and Shawna's suit will be barred as it was filed 18 months after the accident.

What is the rule for limitations that condition a substantive right in a choice of law analysis?

If the choice of law analysis leads to the application of a foreign statute that conditions a substantive right, then the entire statute, including the statute of limitations, will apply.

In Hypo 4B, if Shawna files a wrongful death action against Denny in Illinois based on an accident in Montana, and the Illinois court applies Montana law, which includes a one-year statute of limitations, what result occurs if Shawna sues 18 months after the accident?

Shawna's suit will be barred, as the one-year statute of limitations from Montana applies under the choice of law analysis.