Foreign Law in American Courts

"Ruling on Iranian Law" in California Courts

And it's good.

|The Volokh Conspiracy |

[Contrary to the view of some, this is not what happens when California courts use the law of a foreign country—even when it is based on Islamic law—under normal choice-of-law principles.]

[A.] First, a bit of background: Say that I live in Oklahoma, and work at a plant in Oklahoma, where I'm exposed to some injurious chemicals (say, asbestos). Some years later, I move to California and then get sick, allegedly because of this exposure.

I sue in California court—a logical place, since this is where now I live, and (let's assume) where the defendants have their principal place of business, so it's not unfair to subject them to California courts' jurisdiction. But California tort law is considerably more plaintiff-friendly than Oklahoma tort law in various ways. Should California courts decide the case applying California law or Oklahoma law?

Generally speaking (though with some potential exceptions), the answer is Oklahoma law, as the California Supreme Court held in McCann v. Foster Wheeler LLC (Cal. 1994). (Most other states take the same view.) Businesses that are dealing with Oklahomans in Oklahoma should be able to rely on their conduct being evaluated under Oklahoma law, regardless of where the Oklahomans might later move. And Oklahoma courts and legislators should be able to assure businesses that, if they locate in Oklahoma, they will be subject to the Oklahoma-specified standards of liability (as modified by federal law, if federal law applies):

Because a commercial entity protected by [a particular Oklahoma statute] has no way of knowing or controlling where a potential plaintiff may move in the future, subjecting such a defendant to a different rule of law based upon the law of a state to which a potential plaintiff ultimately may move would significantly undermine Oklahoma's interest in establishing a reliable rule of law governing a business's potential liability for conduct undertaken in Oklahoma.

The same applies if I'm a Frenchman working in France, or a Dominican Republic citizen working in the Dominican Republic. (McCann favorably cites cases involving conduct in both countries.) California courts would have to then apply French law or Dominican Republic law—that may not always be easy, since the laws are unfamiliar and in a foreign language, but courts would be able to consult experts or treatises, and do the best they can. Indeed, foreign law will often apply even when a tort is committed against a California citizen in a foreign country, but the matter is more complex there, which is why I'm focusing in this post on a tort committed against a foreign country's citizen in that country.

[B.] In late October, a California court applied the same approach with regard to Iranian law, and I think the decision is a very good illustration of how these things should be done. (The case has only recently hit the news, and I learned about it thanks to Blaise Scemama of the L.A. Daily Journal.) Here is the heart of the decision, titled "Ruling on Iranian Law," Sabetian v. Air & Liquid Sys. Corp. (L.A. Superior Ct. Oct. 24, 2018):

Plaintiffs allege Houshang Sabetian suffered asbestos exposures while working at oil refineries and oil fields in Iran from 1959 to 1979. The refineries and oil fields were owned by the Iranian Government.

At issue here are two motions to apply Iranian law filed by Foster Wheeler, LLC, Exxon Mobil Corporation, and ExxonMobil Oil Corporation. The motions seek application of Iranian law to the negligence standard of care, strict liability, joint and several liability, compensatory damages, and punitive damages….

The court cited the McCann v. Foster Wheeler case I discussed above, and concluded that it should generally apply Iranian law, because "the state [or country] where the tort occurs possesses the predominant interest in having its law applied," especially when the plaintiff was a citizen of that state or country at the time the tort was committed. It then went on to discuss the particular legal rules that might be relevant:

While [Iranian] laws differ in some ways from those of California, they do not seem out of touch with laws for compensation in other Civil Law jurisdictions. Moreover, the Government of Iran would have had a strong interest in applying its own laws to a refinery it owned and an employee that it employed. At the time of his alleged exposure to asbestos, Mr. Sabetian and his wife were citizens of Iran, and he worked for the Iranian-owned National Iranian Oil Company…. California has little interest in legislating behavior at such refineries and oil fields.

The greatest difficulty in applying Iranian law in this case … is presented by the differences in language and the two systems, and the comparatively lesser development of Iranian law in the context of a jury trial. Moreover, the Court is naturally impaired in understanding the law of a foreign jurisdiction. The Court will address each question as to which the Defendants seek to apply Iranian law.

[1.] Negligence Standard of Care. The competing experts seem to agree that Iran's standard of care is based on "custom and usage," rather than the reasonable person standard as articulated in CACI Instruction 401. Nevertheless, the Court declines to apply this aspect of Iranian Law. Although it is boldly and clearly stated in Iran's Civil Code, there is a lack of authoritative decisional or explicative law that could explain just what is meant by "custom and usage." Does this mean the "custom and usage" of the reasonably careful person, or the reasonably careful oil professional in Iran? Can the custom and usage of the industry worldwide be considered? The evidence does not present a clear enough distinction to formulate jury instructions that will provide answers to these and other questions under Iranian law. While resort could be had to a treatises on Iranian law, the Court is not comfortable placing as great a reliance on such treatises as Iranian lawyers apparently do. The Court therefore declines to apply this aspect of Iranian law.

[2.] Strict Liability. Defendants' expert … establishes that there is no strict liability in Iran, certainly not during the relevant time period. Plaintiffs' expert does not present persuasive contrary evidence. The Court can apply this law by not submitting strict liability claims to the jury. The Court accepts this application of Iranian law.

[3.] Joint and Several Liability. [Both sides' experts] seem in agreement that Iranian law does not provide for joint and several liability unless there is an explicit statutory exception. [Plaintiff's expert] argues that the there is an explicit statutory exception for persons determined to be "employers" under the Civil Responsibility Act, and this is not disputed by Defendants. It seems practical for the Court to make a post-verdict determination of whether there has been a showing of whether any of the Defendants were joint "employers" such that this provision comes into play. The Court accepts this application of Iranian law.

[4.] Punitive Damages. The Court is persuaded by [the defense expert's] declaration that Iranian law does not provide for punitive damages. [Plaintiff's expert's] contrary opinion appears to speculate about bilateral treaties affecting this determination, but he does not offer concrete evidence of a treaty that would affect [this] case. The Court accepts this application of Iranian law.

[5.] Monetary Limit on General Damages. Although the experts do not appear in disagreement that there is some sort of monetary cap on general damages, the Court declines to apply it in this case. Apparently the cap is set by reference to a memorandum prepared by unnamed Iranian government lawyers who have the power to alter the cap as they see fit. Defendants did not produce a sample determination for the Court, leaving the Court in doubt as to what the cap was and how it is determined. The cap also varies by season of the year. As such, the Court is left unsure that the cap is not so arbitrary in nature and application that it would offend fundamental due process if applied in an American court.

[6.] Prohibition on Loss of Consortium Damages. The Court was initially concerned that this limitation might also violate fundamental due process because it was applied in a manner that arbitrarily limited damages by sex. At the hearing, defense counsel persuasively argued that a prohibition on loss of consortium could apply to either sex. Nevertheless, the Court is worried that Iran does not neatly define loss of consortium in the same way that California does, and that the damages could be considered in other categories under Iranian law. Therefore, the Court finds that this prohibition is not established with sufficient clarity in Iranian law to allow for application in this case….

Where the Court is unable to ascertain Iranian law with clarity, the Court will apply California law based on California's interest as the forum state.

The Court is cognizant that this ruling differs from prior rulings in this JCCP [Judicial Council Coordination Proceeding, a set of related cases that are being litigated before different judges]. While prior courts were worried about the religious influence on Iranian law, these provisions of law appear well-established, civil, and secular in nature. All laws of civil redress have root in some religious tradition, and these laws do not radically or offensively differ from traditions in the law of the various United States.

The Court considers the question of whether to apply Iranian law to be a separate question of whether there would be a remedy for Mr. Sabetian in Iran….

I think this is generally the right approach, though, as the judge points out, some other decisions have rejected the use of Iranian law. As I wrote in late 2014,

Los Angeles Superior Court Judge Emilie Elias, however, has recently concluded that this doesn't apply when the foreign law is the law of Iran—and the rationale potentially applies to other countries that use Islamic law, including Saudi Arabia, the United Arab Emirates, Qatar and others. In Alkhas v. A.W. Chesterton Co., and, most recently, Sarooie v. Foster Wheeler, the judge reasoned that (1) because Iranian law partly incorporates Islamic law, California courts may not apply it, and (2) because "Iran is run by mullahs and lacks an independent judiciary and due process of law," Iranian law should not even be applied in California courts. Rationale 1 would squarely apply to Saudi law; rationale 2 might, too, especially since the judge stresses that the concern behind rationale 2 remains that "Iranian law, through utilization of Islamic law, fails to afford a remedy."

For an amicus brief that several law professors and I filed back then, arguing in favor of the result that the judge in Sabetian has now reached (and against the result in the Alkhas and Sarooie cases), see the last portion of my 2014 post. The amicus brief supported appellate reversal of the Sarooie case, but the Court of Appeal declined to review that order, I think likely because it was just a pretrial decision; perhaps the Sabetian case will eventually go up on appeal, and we might get an appellate decision resolving the controversy.

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  1. No statute of limitations application?

    Plaintiff worked from 1959 to 1979 and gets to sue in the 2010’s?

    NO way. Case dismissed with prejudice.

    1. This case being allowed to proceed is another reason people hate lawyers and judges.

        1. Explained in original post.

          Statute of limitations from date of injury (or last date of injury in ongoing cause) should apply.

          1. If you dont know why many people hate lawyers and judges, you might too hard to reach.

          2. Date of injury here is not date of exposure. If the injury you are suffering is latent, it might not manifest until decades later.

    2. Date of exposure isn’t the important issue when analyzing the statutes of limitation. The key question is when the person was sick–and more specifically, when a reasonable person would connect the illness to the exposure.

      If you haven’t developed any symptoms/illnesses, you don’t have a claim (due to lack of damages). If you don’t have a claim, then you can’t be faulted for not bringing it sooner.

      Under any other rule, you’re basically saying people need to bring claims over exposure, even if that exposure never manifests itself in any manner. Or that people who don’t file premature suits are screwed if the exposure takes more than the limitations period (which in some states can be just 2 years) to manifest itself.

      1. I know last time I was injured in a car accident, but didnt know it, I was able to sue 10 years later when my neck felt sore.

      2. Another issue that I have with this entire legal reasoning is that people/companies are entitled to be able to adequately defend themselves as much as plaintiffs are entitled to bring these actions decades later.

        How do people/companies defend themselves in regards to a work site issue 40+ years ago?

        1. What if, say, embezzlement from a trust isn’t discovered for ten years?

          1. While there is some logic to that reasoning, take it to it’s logical conclusion. What if I allege that I just discovered embezzlement from a trust a hundred years ago? Or two hundred? What limiting principle says 10 years is okay but 20 or 50 or a thousand years is not? The entire purpose of a statute of limitations is to impose a legislatively-determined balance on the practical realities of achieving justice on an old case.

            1. Yes, I agree with you. But it still runs into problems. People will try to get around that by alleging ongoing crimes, such as continuing to cover up the embezzlement; that the statute of limitations only applied to the original embezzlement, and if the money had been promptly restored, there would be no crime recent enough to be redressed.

              IANAL. I just made that up. But I do remember something similar about a kidnapping, I think it was, and embezzlement could be thought of as kidnapping money.

            2. “The entire purpose of a statute of limitations is to impose a legislatively-determined balance on the practical realities of achieving justice on an old case.”

              You’re describing a statute of repose, more than anything. Statute of limitations have historically brought the common law’s discovery rule with them. The limiting principle is the final wisdom of the legislature. But unless a statute of limitations says otherwise, they have been interpreted nation-wide as subject to tolling doctrines.

              1. Let me be clearer: Any SOL that speaks in terms of accrual by its terms adopts common law tolling doctrines (like the discovery rule and fraudulent concealment).

                1. Even the claims you are making are limited.

                  US jurisprudence does not support trying cases from 100 years ago just because their was fraudulent concealment.

                  SOL is at the whim of Legislatures but is also principled on a person/company defending itself and that gets far more difficult over decades.

                  1. “US jurisprudence does not support trying cases from 100 years ago just because their was fraudulent concealment.”

                    Because most plaintiffs, through the exercise of reasonable diligence, will discover the fraud within 100 years. The tolling effect of fraudulent concealment does not last forever.

                    Many states have enacted statutes of repose to categorically bar actions regardless of when they accrue.

              2. I was careless in my wording. I said SoL when I meant SoR. Thank you for catching that.

                1. To be fair, there is a connection: If you get caught out by an SOR, you are SOL.

        2. How do people/companies defend themselves in regards to a work site issue 40+ years ago?

          You do it in all sorts of ways. You identify other likely causes of the injury. You show that they connected the exposure to the illness (to trigger the limitations period). You challenge whether they have proof that it was really your product that caused the exposure.

          It’s also not necessarily easy to win these cases. Say you get cancer and attribute it to exposure to a chemical 40+ years ago. How are you going to identify the manufacturer? And how do you prove you were exposed? And what evidence do you have of causation? Oh, and have fun having your medical history pored over by a bunch of attorneys who will ask you all sorts of invasive questions about details in your medical records during your deposition.

    3. The statute likely wouldn’t begin to run until the cause of action accrues, when the disease manifests.

      1. Hence the problem with certain causes of action and lack of holding those “injuries” to a typical statute of limitations. The lawyers have weaseled out exceptions to “injuries” that dont cause harm for 30+ years and have tenuous cause and effect relationships.

        Mesothelioma is an example of that. That type of cancer does not only affect those that worked with asbestos.

        If there was a cause and effect relationship with asbestos, give everyone exposed 2 years to file a lawsuit or forever hold your peace.

        1. You are just bad. I wonder if you think people who cause injury should be required to pay at all. I sense that your idea statute of limitations is like, one hour.

          “I am so sorry that you were unconscious and could not file in time. Too bad!”

          Even if you wouldn’t take it that far (because you could never get away with it, most likely), your anti-plaintiff bias is very clear.

          1. You are bad at this.

            I see far less Libertarians on this part of Reason’s comment section.

            People hate lawyers for a multitude of reasons. One reason is trying to change the rules after the game started.

            1. The rules (statutes of limitation) incorporate discovery rule. What are you talking about?

            2. I see far less Libertarians on this part of Reason’s comment section.

              “Fewer,” not “less.” Probably “libertarians,” not “Libertarians.”

              You should learn English if you wish to be an American, let alone a sovereign American patriot.

              You also may wish to consider your oft-circulated proposed standards for eligibility to vote, at least until you become literate.

        2. If there was a cause and effect relationship with asbestos, give everyone exposed 2 years to file a lawsuit or forever hold your peace.

          File a lawsuit for what? If a disease hasn’t yet manifested, the suit wouldn’t be ripe.

          The statute of limitations applies to these suits as well. What you’re looking for is something more akin to a statute of repose — but a two year statute of repose would be incredibly short.

          Mesothelioma is an example of that. That type of cancer does not only affect those that worked with asbestos.

          That’s an argument on the merits, to be made either at a Daubert hearing or to the jury.

          1. Life sucks sometimes. Sometimes you get sick and cannot explain why.

            Asbestos is not the cause for everyone having lung cancer. I was around Asbestos all the time in the US Navy. I dont have any lung issues. Even if I did develop lung cancer, I cannot reasonably prove that asbestos caused my cancer 35+ years later.

            Set disease causes of action SOL within 10 years or something but after that you illness can not be 100% traced back to some work you might have done 35+ years ago.

            Lawyers tend to be shitbags, which is why most people dont like them.

            1. Yes, yes, all lawyers are shitbags. Well, till you need one. Then suddenly you find the one who is just out there protecting your rights.

              Imagine the maker of a baby formula begin touting this new additive to improve the nutritional quality. The formula gets FDA approval and is cheered by doctors. The stuff flies off the shelves. Except, there’s a problem. Turns out the additive accumulates in ovaries, such that when girls reach maturity, their eggs do not work. Or that they produce deformed offspring. And it turns out a whistleblower comes forward and presents documents that show doctors knew about that risk but hid it all along. Of course, nobody knew that for at least 14-15 years after the formula was being sold.

              In my scenario, are you going to look at your daughter and deformed grandchild and say, “well, it’s more than 10 years, so I guess your shit out of luck. Sue faster next time.”

            2. Lawyers tend to be shitbags

              Your view might chance were you to spend less time with professors who are mouthpieces for movement conservatism and more time with practicing lawyers who are not reliably right-wing.

            3. If you get lung cancer, you may not be able to prove the cause from among many possible sources. However, mesothelioma is not the same as lung cancer and great majority is caused by exposure to asbestos.

              Not every disease is a blurry blob of causes wrapped together and not every disease is as easy to notice in everyday life (e.g. a disease in reproductive organs until you need to have child), so why should every disease should be subject to the same statute of limitations?

    4. Iranian law doesn’t necessarily have a relevant statute of limitations.

    5. Are you a law student?

      1. Law students comment how you comment. Ignorantly.

        1. I don’t think you know enough about the law to helpfully weigh in here.

          1. These are the Conspirators’ carefully cultivated peeps.

  2. Thanks for posting these facts. Interesting situation.

  3. Not a lawyer here, but the elephant in the room, which Prof Volokh barely touches on, is as a practical matter, (not to mention the ludicrous sovereignty issues) how the hell do you actually use Iranian law in a US court? As it stands now, we have a hard enough time interpreting own laws, and cases sometimes run all the way up to the Supreme Court in matters of interpretation. Here, in addition to that, there would be problems with LITERAL interpretation of laws written in Farsi! And just who would mediate a dispute here over the interpretation of Iranian law in this case? Would you run those cases up to the Supreme Revolutionary council in Iran?

    And you have another problem. Which version of the Iranian legal code do you use? Because the period 1959 to 1979 was prior to the Islamic revolution, and their constitution was re-written in 1979.

    Finally, assuming you have settled all that, do you use the entire legal code, or are you allowed to cherry pick? Somehow, I don’t think a US court would be comfortable imposing blasphemy laws, laws requiring the modesty of women, or laws that give woman’s testimony in court lesser credibility than a man’s.

    Either the case should be filed in US court under US laws, or it should be filed in an Iranian court. Allowing hybrid systems of the two sounds like it would cause more problems than it will solve.

    1. are you allowed to cherry pick?

      Yes. I mean, that’s literally right there in Prof. Volokh’s post: the court was picking and choosing which provisions of Iranian law to apply based on a combination of ascertainability and public policy considerations.

      And just who would mediate a dispute here over the interpretation of Iranian law in this case?

      The judge. The same person who mediates a dispute here over the interpretation of various federal and state laws.

      Either the case should be filed in US court under US laws, or it should be filed in an Iranian court. Allowing hybrid systems of the two sounds like it would cause more problems than it will solve.

      It really doesn’t cause any particularly difficult problems — as the post notes, it’s the same principle that applies when someone moves from another state — and it solves the problem of forum shopping by the plaintiff.

      1. The judge. The same person who mediates a dispute here over the interpretation of various federal and state laws.

        And the judge in this case is qualified to interpret a vastly different legal system written in Farsi? And exactly who do the parties appeal to if they feel the judge is interpreting the law incorrectly? An Iranian court?

        as the post notes, it’s the same principle that applies when someone moves from another state

        My point is that there are numerous additional practical difficulties using Iranian law, vs another State. I would even be skeptical if the judge was allowing elements of Canadian or UK law, and that would be far less problematic than using Iranian law.

        1. I don’t know why people come here to pontificate on decisions they haven’t read.

          Both plaintiff and defendant had counsel versed in Iranian law (former Iranian attorneys, both) who submitted declarations; the plaintiffs also supplied a certified translation (certified how, I don’t know) and the judge accepted each of these.

          The judge also detailed why they deferred to Iranian law in this case: California has little interest in the goings-on of Iranian facilities in their employment of an Iranian, as well as the fact that Iran has relevant legislation on the matter.

        2. “And exactly who do the parties appeal to if they feel the judge is interpreting the law incorrectly?”

          They start in California state court. Then they appeal to a California intermediate appellate court. And finally they appeal to California’s Supreme Court. Why do you think this is a problem? A defendant who is subject to personal jurisdiction in California but causes injuries to people in Iran is not going to be heard to complain that they might have to be subject to the laws of Iran as interpreted by California courts. Who do you think is being wronged, here?

          1. Then they appeal to a California intermediate appellate court. And finally they appeal to California’s Supreme Court. Why do you think this is a problem?

            Because it’s unlikely that any of the judges on the California intermediate appellate court, state Supreme Court, or SCOTUS are well versed enough in Farsi and Iranian law, or the Iranian Constitution, to handle disputes over it’s interpretation.

            Admittedly I haven’t checked each judge’s background on Iranian law, but I think the above is a pretty safe assumption.

            1. So what? I mean, what’s the concern? That the trial court might issue a decision that is different than the one an Iranian court would have if it had heard the case in the first instance? That’s possible. Again: so what? Note that this will certainly happen if the judge doesn’t even try to apply Iranian law.

        3. And the judge in this case is qualified to interpret a vastly different legal system written in Farsi?

          I mean, he or she will presumably need the help of interpreters and experts. This is nothing unusual in law. Do you think a guy who has practiced personal injury law for 20 years and was just appointed to the bench is qualified to interpret, say, cases arising under ERISA? Not in the sense of having relevant knowledge or expertise. So the parties educate the judge on the workings of the law, directly and/or through experts. And the judge reviews the submissions and makes decisions.

          And exactly who do the parties appeal to if they feel the judge is interpreting the law incorrectly? An Iranian court?

          No. The same body the parties appeal to if they feel the judge is interpreting California or Oklahoma or federal law incorrectly: a state intermediate appeals court. And then the California Supreme Court.

  4. Iran is a dictatorship with democratic trappings. US law should not give credence to the law of a dictatorship.

    The religious nature is irrelevant.

    1. “US law should not give credence to the law of a dictatorship.”

      From the looks of things, several aspects of Iranian law are clearly superior to California law.

      1. You think Bob from Ohio thinks US law should give credence to California law?

        1. I’m enjoying this.

  5. Let’s turn this around, and propose that the business is located in the US, and the worker is located in the US, and it is argued that the situation should adjudged by the laws of another country because the worker is from there. We could argue that it it is OK to employ a worker who is only 9 years old in dangerous factory conditions here in the US, because that worker was from China. We could argue that a prostitute from another country cannot be arrested, because prostitution is legal in her country. But, that’s not how we roll. We would expect to apply the laws of our own country to a business in our country. What is sauce for the goose is sauce for the gander. When we leave the US to go to other countries, we lose much of the protection of the laws that we enjoy in this country, and subject ourselves to the laws of the country where we go.

    1. “…it is argued that the situation should adjudged by the laws of another country because the worker is from there.”

      Who would argue this? The conflicts of law analysis has nothing to do with where the plaintiff happens to have been born or moved from.

      “We could argue that it it is OK to employ a worker who is only 9 years old…”

      No, because American courts cannot apply foreign law that would otherwise conflict with our own public policy or the Constitution.

      “When we leave the US to go to other countries, we lose much of the protection of the laws that we enjoy in this country, and subject ourselves to the laws of the country where we go.”

      That’s the whole fucking point of the original post. Did you not read it?

      1. I think GryFalcon was trying to support the determination here but the flaws in the hypothetical he chose attracted more of your attention than the point he wanted to illustrate.

  6. No, we should not be applying Iranian law in our courts. Even applying Oklahoman law is already a stretch, as Californian judges are trained and most used to applying Californian law, not the laws of Oklahoma.

    This case illustrates the problem. Instead of applying Iranian law, this case applies Iranian law only sometimes. The result is not principled and coherent.

    To get these unprincipled and incoherent results, both sides must employee expert witnesses. This is expensive and will result in closing the courtroom doors on lower income litigants altogether. We in California have a stronger interest in making sure that low income folks can access justice than we do in pleasing the Mullahs in charge of Iran by applying their law.

    Iran is an enemy of the United States. Oklahoma is not. I am not a fan of applying Oklahoma law in California (or vice-versa), but there is an argument to made for it on the principle of comity. And an argument against it based on race-to-the-bottom to the extent that we believe Oklahoma is de facto controlled by oil interests determined to minimize/eliminate their responsibility to provide workers with safe working conditions. It is questionable to apply Oklahoman law. Just wrong to apply Iranian law.

    1. You haven’t thought this through. Assume that overtime in OK only kicks in after 40 hours, with no daily limit. I work at a store in Tulsa, doing four shifts of 10 hrs each. Should I be able to move to CA and sue my employer for OT violations, because in CA OT kicks in after 8 hrs per day?

    2. “The result is not principled and coherent.”

      The principle is that we will apply the laws of other jurisdictions unless doing so causes the court to violate its own internal rules, which includes constitutional and public policy concerns. It is both principled and coherent.

      “To get these unprincipled and incoherent results, both sides must employee expert witnesses.”

      The same can be said about any case requiring expert witnesses, including, for example, mesothelioma causation disputes. California’s concern for poor plaintiffs is adequately covered by contingency fee work. In addition, presumably California has a strong interest in making sure that a person be able to prove their entitlement to damages, even if it requires expert testimony, wouldn’t you agree?

      “Just wrong to apply Iranian law.”

      To a plaintiff who was injured in Iran, working under Iranian legal regimes?

      1. NToJ:

        California courts do not have the expertise to apply Iranian law. As is shown by this decision, which even free expert testimony continuously declined to apply that law on issue after issue.

        The result, as I said, is neither principled nor coherent, but is instead an unpredictable hodgepodge hybrid beast.

        As far as imposing on plaintiffs costs that they are likely in many cases to be simply unable to bare in order to vindicate their rights, I would NOT agree. That is not justice. All for the purpose of creating this beast that is neither American nor Iranian but really unpredictable.

        1. “As far as imposing on plaintiffs costs…”

          The plaintiff chooses their forum. If they select a California court to resolve an Iranian dispute, they can be expected to pay the costs associated with adjudicating the issue under California’s choice of law. Lots of law is unpredictable, but we don’t have special rules for plaintiffs in unpredictable areas of law. You have to prove your entitlement to damages under applicable law, which can include [Iranian law according to California courts]. Nothing unjust about it.

          1. Your argument is absurd. Plaintiffs chose the forum. But what if California required 100 million dollar bonds to hear cases, so that only billionaires could afford to bring lawsuits?

            Based on your argument, we can have no objection. Because the plaintiff chooses the forum.

            That plaintiffs choose the forum does not mean that we cannot criticize the forums law with respect to how plaintiffs are treated. Otherwise, we would be unable to criticize any law for disfavoring plaintiffs in any case whatsoever. All of our arguments about law and justice would only apply to defendants. That is an absurd result and that is exactly what your argument amount to.

            You may have a decent argument for your position, but THIS is not it.

            1. “Your argument is absurd. Plaintiffs chose the forum. But what if California required 100 million dollar bonds to hear cases, so that only billionaires could afford to bring lawsuits?”

              You do appear to be a subject matter expert in absurd arguments.

              “Based on your argument, we can have no objection. Because the plaintiff chooses the forum.”

              My argument is that if a plaintiff is required under California law to prove their case by producing evidence of X, they can’t complain that California law requires them to produce evidence of X.

              “…we cannot criticize the forums law…”

              Who said you can’t criticize? Your argument isn’t any good, but nobody is stopping you.

    3. We in California have a stronger interest in making sure that low income folks can access justice than we do in pleasing the Mullahs in charge of Iran by applying their law.

      This has nothing to do with mullahs, pleasing them or otherwise, and the key word in your sentence is “justice,” not “access.” California has no interest in giving low income folks special treatment if it results in injustice — such as applying laws that neither party contemplated during their relationship because of the happenstance of where someone moved.

      1. Your anti-plaintiff bias is clear. Let us say that we have a plaintiff who would be entitled to a recovery under either Iranian law or Californian law. Under your theory, they would be practically prevented from getting if unable to afford experts to speculate on the proper meaning and interpretation of Iranian law.

        As far as what the parties “contemplated” you care much more about that issue than I do. Rich people hire lawyers to contemplate for them. Poor people cannot afford to know the law and so are left guessing. In reality, as opposed to your libertarian fantasy, much of life is not capable of contemplation ahead of time. What is more important that contemplation is a result that is fair and reasonable for all parties. And if that means an oil company has to pay for injuring workers on Iranian oils fields just in case those workers become American residents or citizens in the future, that is a result I can live with.

        You claim that there is a distinction between access and justice. There is. But you can’t have justice without access. If you don’t care about access that proves you do not care about justice either.

        1. “…much of life is not capable of contemplation ahead of time.”

          If you mean the worker injured in Iran can’t choose where they work, please assume that isn’t the case, since we’re talking about a plaintiff injured in Iran but who later moved to California.

          “And if that means an oil company has to pay for injuring workers on Iranian oils fields just in case those workers become American residents or citizens in the future, that is a result I can live with.”

          Everyone here agrees that the American company can be made to pay injuring workers in Iranian oil fields. The court agreed, too.

          “access”

          Again, we’re talking about a case where an actual plaintiff had actual access to actual lawyers and is recovering actual money.

        2. Your anti-plaintiff bias is clear. Let us say that we have a plaintiff who would be entitled to a recovery under either Iranian law or Californian law. Under your theory, they would be practically prevented from getting if unable to afford experts to speculate on the proper meaning and interpretation of Iranian law.

          As NToJ points out, that argument is bizarre in a context like this one, in which — even setting aside the choice of law issue — a plaintiff has to hire all sorts of experts in order to prevail.

          I mean, is your argument that courts should just waive the requirement in all tort cases that a poor person prove causation if the experts needed to establish that element are expensive?

        3. “Poor people cannot afford to know the law and so are left guessing. In reality, as opposed to your libertarian fantasy, much of life is not capable of contemplation ahead of time.”

          You think that an Iranian working for an Iranian company in Iran didn’t contemplate that his dispute would be governed by Iranian law? That seems odd.

  7. My mind is boggled.

  8. Do other legal systems in other countries ever do things like this? I know that’s irrelevant to whether it’s a good idea in this particular case, but I’m curious if this is a common approach to solving the problem of adjudicating disputes between (onetime) foreign claimants and defendants.

    1. Yes. Please don’t hate lawyers and judges for following the rule of law. The alternatives are worse.

    2. Yes. Sometimes they even do it mutually by agreement.

      1. If there is a treaty incorporating another jurisdictions law, then it isn’t really foreign law that is being interpreted, but American law. In the sense that treaties are the Supreme Law of the Land. So, in the case of a treaty, both the executive branch and the legislative branch have not only authorized the incorporation of a foreign jurisdictions law, but required it.

        Absent a treaty obligation and the political accountability that this implies, I do not believe that a foreign jurisdictions law ought to be used in American courts.

        1. Ok, so assume foreign jurisdiction is very protective of workers and affords greater damages for injuries in foreign jurisdiction than does California. When the plaintiff sues in California to recover damages against the big bad oil company, do you think the court should limit the plaintiff’s recovery to only those recoverable in California? What if you think the damages allowable under California law are unjustly low?

          1. Same result. I don’t know why you think it would be any different.

            1. Well if I choose to work in a worker-protective jurisdiction because of that jurisdiction’s protections for workers, it would come as a surprise to me that those protections are unenforceable just because David Welker says the law should arbitrarily be the law where the case is filed, rather than the law applicable to the place where my injury took place.

              It’s an interesting theory. Any state has the power to nationalize their labor laws so long as plaintiffs can afford a plane ticket. If a Texas work in Texas isn’t paid overtime, can he move to California and recover treble damages just because California law–a state the Texas worker has never worked in–permits that recovery.

              What if Texas law doesn’t recognize negligent misrepresentation as an exception to the economic loss rule, but California does? Can Texas plaintiffs just hop over to California and sue any company that happens to be located in California, complaining of non-existent torts in Texas, that magically become torts when asserted in California?

  9. I haven’t looked at this issue since law school lo these many years ago, but this does not sound right:

    “Where the Court is unable to ascertain Iranian law with clarity, the Court will apply California law based on California’s interest as the forum state.”

    I thought that in that case the court would dismiss the case and tell the parties to go litigate in Iran. Maybe if the “unclear” points are not material in the scheme of things, this woudl be OK, but it seems at least potentially grossly unfair if they are material.

  10. Total anecdotal testimonial here. In the Vietnam era I served on two WW2 era ships sleeping next to asbestos-clad pipes that shed white fibers when the hulls were pounded in heavy seas and during shipyard overhauls. By the 1970’s I was working with asbestos cement pipelines, cutting and milling pipes as large as 48″ in the field, rarely wearing a dust mask because of the hot sun.

    By the 1980’s it became clear that exposure to asbestos and being a smoker was almost 100% fatal for shipyard workers. I didn’t smoke, but by that time I was a jail guard in a facility that allowed inmates to buy unlimited cigarettes and smoke it all indoors. My working shift was in a haze of tobacco smoke, from the ceilings down to my ankles.

    Then the reports on second-hand smoke danger came out and I began signing up on every asbestos victim watch list that would take me. However, no symptoms, no case. By the early 1990’s the jail decided to end all tobacco use for inmates in custody, cold turkey.

    The next day 1,200 inmates rioted. For 20 minutes I was taken hostage, but managed to fight my way out with minor injuries. It was worth it. The smell lingered for a decade, but the smoke was gone.

    I get lung scans every year. Perfectly clear. Good retirement. I get called to jury service a lot. I don’t know how I would lean on an ancient asbestos case from Iran. Might have a hard time if the judge told me I could only consider what was coming out of the lawyer’s mouths or their “experts”.

    1. “By the 1980’s it became clear that exposure to asbestos and being a smoker was almost 100% fatal for shipyard workers.”

      Based on everything else you’ve said, that does not appear to be clear at all.

      1. A lot is unclear about where condemnation of all asbestos originated. It seemed to spring from a mimeographed joint Draft-Summary report in 1978 released the National Cancer Institute and thel Institute of Health Sciences. The report predicted that cancer deaths attributable to asbestos would jump to two million by 2008, up from estimates of only 2,000.

        The Draft-Summary report was curious for several reasons. It was very vague about who actually authored the report. During World War II South African hard fiber amphibole asbestos was imported for use around pipes in naval ships and aircraft because it is extremely resistant to fire and corrosion. The fibers of this material, however, are quite small and once the workers (who did not wear adequate masks) got them in their lungs they would remain there forever. This type of amphibole asbestos was also used until 1956 in the filters of Kent cigarettes.

        Soft fibered American and Canadian chrysotile forms of asbestos were generally considered benign and few rigorous studies exist to show any carcinogenic enhancement of this type of dust over ordinary baking flour, silica, coal dust, soot, pollens, or other common pollutants. Nevertheless, by 1989 all asbestos was effectively out of all products, no matter how beneficial or how groundless or far-fetched the potential or estimated risks. Fear mongering headlines, trial lawyers, pandering politicians, and bureaucrats eager to build techno-legal-regulatory empires seized the day!

  11. A further comment. Choice of law generally results in much incoherence and complexity. Incorporating foreign law makes resolving disputes more expensive and complicated. I am not saying we should NEVER go there. But we should rarely do so. Only when not incorporating a foreign jurisdictions law would work a great injustice or there is a specific treaty obligation to do so, should courts incorporate it. In my opinion. That is obviously not law. But neither is EV’s preferred outcome of incorporating foreign law often or always.

    1. “Incorporating foreign law makes resolving disputes more expensive and complicated.”

      Unless foreign law is clearer on the subject, which it often is.

      “Only when not incorporating a foreign jurisdictions law would work a great injustice…”

      So your concern is that the law would be too murky to apply foreign law, and your solution is this legal test? Good luck with that, buddy.

      1. Foreign law is NEVER clearer, because California courts are not experts in foreign law. To even determine that a law is “clear” requires a significant amount of research. It is only clear in hindsight after that research has increased your confidence of your understanding.

        Having California courts interpret foreign law adds expense and results in picking and choosing, randomness, and incoherence. The costs are not worth the “benefits.”

        1. No. Sorry.

          If you accept the rule of law, then you must also accept that a court of competent jurisdiction will determine which of the many laws in human society are relevant to the claims being adjudicated.

          Something tells me that Professor Volokh understands that “Iran” produces more clicks and comments than “Nova Scotia.” But it shouldn’t.

        2. “Having California courts interpret foreign law adds expense and results in picking and choosing, randomness, and incoherence. The costs are not worth the “benefits.””

          If California courts can’t interpret foreign laws, what makes you think they should even try? Why shouldn’t the California courts just tell the plaintiff in an Iranian dispute to take it up with the Iranian courts?

          1. If California courts can’t interpret foreign laws, what makes you think they should even try? Why shouldn’t the California courts just tell the plaintiff in an Iranian dispute to take it up with the Iranian courts?

            That would seem to make a lot more sense than Welker’s bizarre notion that California law should apply to a dispute that arose in Iran between Iranian parties simply because one of those parties later moved to California.

            (Of course, it wouldn’t really benefit the plaintiff who is living in California to tell him, “Go litigate in Iran,” but then the job of the California courts, contrary to Welker’s thinking, is not to maximize opportunities to redistribute money to plaintiffs.)

  12. Although I think this case gets it pretty much right, I’m a bit troubled by the refusal to apply Iranian law because there isn’t enough decisional law to guide the court on the standard of care. Iran’s is pretty much like all civil law systems (in this respect), in which decisional law plays second fiddle to code interpretation pretty much de novo in each case (it’s more complex than that, but courts are generally free to ignore case-law precedent). In civil law systems (including France, Germany, Italy, etc.) there’s a tremendous emphasis on scholarly analysis, which informs a court’s judgment. Since foreign law is treated as a fact in American trials rather than law in the way domestic law is, the expert witnesses should have been asked about the scholarly commentary, and that commentary, if reasonably consistent, should have been admitted to “prove” the local law.

    1. Yes, it is puzzling. It doesn’t seem that the court tried but couldn’t determine what the applicable custom and usage was, it understood that the legal treatises play an important role, it was just “not comfortable” using them.

  13. Here’s the part I don’t understand and that got glossed over — if Iranian (or Oklahoman) law is going to apply because the injury occurred in Iran (or Oklahoma) and both parties were located in Iran (or Oklahoma) when it happened, why on Earth is the lawsuit going forward in California? Just because the plaintiff chose to move to California later doesn’t explain why they should be able to file the lawsuit there instead of where everything actually occurred. This is something that occurred while a person living in Iran was working in Iran for an Iranian company. Why should California be hearing it at all?

    1. The courts of California exist to adjudicate claims that come within their jurisdiction. A California citizen suing a California business for an injury happening elsewhere is within that jurisdiction. The defendant can move to transfer the case elsewhere, and the court has jurisdiction to rule on that motion. If the motion fails or, more likely, the defendant doesn’t make the motion, then the case proceeds.

      Whether Iran’s courts would have jurisdiction over all parties to the dispute is unknown, and also irrelevant. American courts can rule on disputes within their jurisdiction, regardless of what other tribunals might also be available.

      1. Right. To add to what ScottK says, a defendant can (try to) argue (among other possibilities) that the California court does not have jurisdiction over the defendant, or that the case should be heard elsewhere because all the witnesses and evidence is in Iran and so California is not a convenient forum. But the defendants here didn’t do either of those things. They said, “We’re fine with this California court hearing this case, but we think Iranian law should apply.”

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