Foreign Law in US CourtsMove from “fact” to “law” Common law Statutory

innovations Issues

How raised? How presented? Who determines? Role of judge? Nature of appeal?

Foreign Law in US CourtsCommon law Foreign law as “fact”

Specifically pleaded Based on expert

testimony Appealable only if

“clearly erroneous” Determined by judge

Jury instructed on “foreign law”

Jury determines only when “perplexing”

Statutory innovation

What is judicial notice”?

Foreign Law in US CourtsCommon law Foreign law as “fact”

Specifically pleaded Based on expert

testimony Appealable only if

“clearly erroneous” Determined by judge

Jury instructed on “foreign law”

Jury determines only when “perplexing”

NY Rule 4511 “Judicial notice”

Need not be pleaded (appropriate notice)

Expert testimony or own research

Appealable as “matter of law”

Decided by judge Jury instructed Jury decides issue, if

judge delegates task

Foreign Law in US CourtsHypothetical #1

Plaintiff is injured while trying to rescue railroad conductor, who is hit by pole set one foot from rails. Applicable foreign law (an administrative order) seems to require any pole be at least 7 feet from rails.

Under NY Rule 4511, must the issue of foreign law be pleaded? Proved by expert testimony? Submitted to jury?

Foreign Law in US CourtsHypothetical #2

In the railway injury case suppose the plaintiff asks the court to give a jury instruction on Ontario law, but the court does not take judicial notice of Ontario law on pole placement.

Instead, the court decides to proceed under forum law. Can it?

Foreign Law in US Courts Judicial prerogatives (NY Rule 4511)

Must take notice (even w/o request)• US constitution, statutes, common law• State constitutions, statutes, codes, common law

Must take notice (w/ request)• Foreign laws• Notice in pleading or before trial evidence

May take notice (even w/o request)• Foreign laws

Why are US and foreign law treated differently?

Foreign Law in US CourtsHypothetical #3

The same railway injury case arises in federal court. The court asks the parties to submit expert affidavits, scholarly texts, and translated foreign statutes. The judge decides the meaning of Ontario law without a hearing and then instructs the jury on the law.

Under FRCP 44.1

May the court take notice of foreign law sua sponte?

Is the court bound by rules of evidence?

Can the judge do her own foreign law research?

Can the judge decide the issue without a hearing?

Is the judge’s decision appealable?

Foreign Law in US CourtsRule 44.1: Determination of foreign law

A party who intends to raise an issue concerning the law of a foreign country shall give notice in his pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determination shall be treated as a ruling on a question of law.

How is this different from NY Rule 4511?

Foreign Law in US CourtsUnited States v. McClain (5th Cir. 1977)

Defendant was charged with receiving stolen goods under the US National Stolen Property Act. The issue was whether the goods, pre-Columbian artifacts brought from Mexico, were the property of the Mexican government.

Foreign Law in US Courts

Some questions: Who must prove a violation of the Act?

Who must prove Mexican law? What’s wrong with having the jury

determine the status of pre-Columbian artifacts under Mexican law?

Given criminal jury trial rights, isn’t the question of “stolen property” a jury issue?

Foreign Law in US CourtsUnited States v. McLean (SD Texas 1985)

Defendant was charged with conspiring to bribe two Pemex officials to get a contract award from Pemex. The prosecution had to prove a conspiracy to bribe “foreign officials” to induce favor from a “foreign instrumentality.”

Foreign Law in US Courts

Some questions: What must the prosecution prove –

Was Pemex a “foreign instrumentality”? Were the two Pemex officials “foreign

officials”? Are you comfortable if these questions

are left to the jury?

Foreign Law in US CourtsFrummer v. Hilton Hotels (NY Sup Ct [trial court] 1989)

A guest at the London Hilton slipped in the bathtub. He sues, claiming there should have been a rubber shower mat. The hotel says he was careless. After the jury finds for the hotel, the judge notices a British statute.

Foreign Law in US Courts

The judge asks some questions: Why did the jury decide for the hotel?

(Remember the original instruction was on contributory negligence.)

Shouldn’t the jury have been told about the British comparative negligence statute?

Should the judge now take judicial notice of this British law, even though the plaintiff never raised the issue?

Foreign Law in US Courts

Summary

Statutes: foreign law from “fact” to “law” Judge determines law / takes judicial notice Judge uses available sources (not bound by E) Pleading requirement replaced by notice “Fact” review becomes “law” review

Pros and Cons?

Foreign Law in US Courts

Summary Judge-jury relationship

Judge instructs jury on law (such as title to pre-Columbian artifacts)

Jury decides terms of art (such as “public official” under FCPA)

Judge can take notice of foreign law (even after trial, as when British “comparative negligence” relevant)