Adjudicating cases involving the application of foreign law by domestic courts has become a frequent occurrence in the United States. Take, for example, the case of a U.S. person suing a U.S. hotel chain for a slip and fall that occurred at one of the chain’s resorts abroad. Or imagine a contract dispute where the agreement specifies that the laws of a foreign country govern. Assuming there is no issue of jurisdiction, in both cases the domestic court will likely be tasked to apply and interpret a foreign law.

But how can a domestic judge accurately determine the content of that foreign law? To tackle this difficult task, courts generally utilize the tools found in Federal Rule of Civil Procedure 44.1 and its state law counterparts. Specifically, Rule 44.1 allows judges to employ a broad toolkit including, for example, the court’s independent research or expert testimony presented by the parties.

This Article argues that the way domestic courts are currently utilizing the resources of Rule 44.1 is flawed and must change. In particular, three fatal flaws are identified and discussed: (1) the overreliance on parties’ expert testimony; (2) the undue tendency towards textualism; and (3) the little weight placed on foreign governments’ interpretation of their own laws. For each of these flaws, this Article proposes practical and innovative solutions that, if implemented, would minimize errors and improve domestic courts’ ability to accurately interpret and apply foreign law when called to do so.

Continue Reading It’s All Greek to Them: Overcoming Three Fatal Flaws When Domestic Courts Apply Foreign Law