Volume 108
Issue 4
April '20

Lex Incognita No Longer: Making Foreign Law Less Foreign to Federal Courts

Written By: Alejandro J. García

Abstract

This Note fills a gap in the scholarship by proposing an overhaul of rule 44.1 to incorporate best practices adopted by courts, suppress inadequate practices, and encourage a more structured approach to foreign-law issues. A recent note in the New York University Law Review proposes rewriting rule 44.1 to incorporate a burden of production for parties seeking to raise issues of foreign law. Indeed, the only substantive amendment that the author proposes is requiring a party seeking to rely on foreign law to “(i) produce any relevant statutes to the Court, or (ii) produce substantial materials demonstrating the substance of that law.” That note’s proposal is limited only to the basic burden that parties must carry to have the court apply foreign law, but does not address other recurring issues with rule 44.1 practice that I identify in this Note. Other recent scholarship has limited itself to critiquing practice under rule 44.1 and recommending ancillary solutions to discrete issues. For instance, authors have recommended international cooperation mechanisms or dedicated institutes; explored methods for finding foreign law and extracting it from court filings; advocated for a comparative-law mode of analysis in cases involving foreign law; distinguished between applying and adopting foreign law in U.S. litigation; and suggested the use of foreign-State interpretive rules when applying the law of such States. All of these proposed solutions seek to alter practice around the existing text of rule 44.1, rather than addressing the rule’s textual insufficiency. For this reason, I propose a new text for rule 44.1 that seeks to resolve the most contentious issues that have arisen in the doctrine.

In Part I, I analyze the theory that underpins rule 44.1 and then provide a descriptive account of how the U.S. courts of appeals have applied the rule in practice. In Part II, I present a normative proposal for a rewritten rule 44.1 and explain its intent and operation. I then briefly conclude.

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