I. Introduction
Early last summer, I received a phone call from a law student in the litigation department of a large firm. He was working with a team on a case involving Czech law and, as part of a due diligence review, he was seeking an English translation of a piece of Czech legislation before the firm outsourced the bulk of the foreign legal research to Czech attorney-experts. Although it was easy to find the Czech legislation in Czech from a Czech government website, we could not find an English translation – official or otherwise – from any of our free or subscription-based databases. In the end, we relied on the flawed magic of Google Chrome's translate feature to “translate” the Czech legislation from the Czech government website into English. Despite my protestations and disclaimers, the student was thrilled with our results and insisted he had satisfied his due diligence duties. I hung up the phone and thought to myself: certainly, other American litigants have taken cases involving Czech law. What happens to the foreign law and legal analysis they obtain from their Czech attorney-experts? Assuming they submit some of it to our U.S. courts in the course of litigation, why can't we easily retrieve it?
Then, in June of 2018, the U.S. Supreme Court issued a decision in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical, Co. Footnote 1 The Animal Science case began thirteen years ago when American purchasers of Vitamin C products sued the Chinese manufacturers that export those Vitamin C products.Footnote 2 The lawsuit accused the Chinese manufacturers of establishing a price-fixing cartel in violation of antitrust laws.Footnote 3 The Chinese manufacturers did not deny the antitrust violations, but relied on Chinese law in their defense.Footnote 4 In support of the Chinese defendants, the Chinese government filed an amicus brief with an official interpretation of the applicable Chinese law.Footnote 5 The Eastern District Court of New York found discrepancies among the documents provided by the defendants and refused to defer to the interpretation of the Chinese law by the Chinese government.Footnote 6 The case went to trial and a jury awarded $147 million dollars in damages.Footnote 7 On appeal, the Second Circuit reversed, arguing that it was bound to defer to the Chinese government's interpretation of its own law.Footnote 8 On certiorari, the U.S. Supreme Court was asked to identify the level of deference U.S. courts should give a foreign sovereign's interpretation of its own law.Footnote 9 The U.S. Supreme Court held that U.S. courts should give “respectful consideration” to the foreign sovereign's interpretation, but are not bound to it.Footnote 10 The U.S. Supreme Court vacated and remanded the case back to the Second Circuit.Footnote 11
Thus far, legal analysis of the Animal Science case focuses on the arguments of the parties and the standard set by the U.S. Supreme Court.Footnote 12 But, no one is talking about all those documents in the case's multiple dockets that provide the content, interpretation, and analysis of Chinese law. The sophisticated parties in this dispute spent thirteen years (and counting) on gathering Chinese law. These documents are rich reserves of material for every future scholar, librarian, and/or practitioner seeking information on Chinese law and yet, they remain buried among all the other filings in the case's lengthy court files.
The Animal Science case is one of many cases in U.S. federal courts wherein parties rely in some measure on foreign law as part of a claim or defense. Yet, none of our legal research databases tracks and catalogs the foreign law and legal analysis filed in our courts.Footnote 13 In fact, none of our legal research databases even provides an efficient way to find the foreign law and legal analysis filed in our courts.Footnote 14 Despite the increasing frequency of cross-border litigation and the various types of cases that trigger a need to determine foreign law, access to foreign law as filed in our courts remains limited.Footnote 15 Additionally, although several wonderful foreign legal research databases exist, they do not offer up-to-date certified translations of foreign law or expert interpretations and analysis by foreign counsel. Our court records do. The purpose of this article is to raise awareness that litigants in U.S. courts are producing documentation of foreign law with increasing frequency and that those documents are valuable and should be more accessible to future litigants, practitioners, scholars, and researchers.
This article proceeds in six parts. Following this introduction, Part II gives an overview of international comity, a common law doctrine that guides the recognition of foreign law in our U.S. courts.Footnote 16 Additionally, Part II offers a taxonomy of cases that trigger a need to research foreign law. Although both state and federal courts receive documents regarding the content, interpretation, and analysis of foreign law,Footnote 17 existing legal research databases do not provide full coverage examination of state court case dockets and, for that reason, the taxonomy in Part II focuses only on civil cases filed in U.S. federal courts. Part III traces the development and application of Rule 44.1 of the Federal Rules of Civil Procedure, a key to unlocking the vault of documents on foreign law and legal analysis filed in U.S. federal courts. Part IV of this article outlines available methods for finding and organizing foreign law filed in our U.S. federal courts, based on combined use of the top three legal research databases in the American legal academy: Bloomberg Law, Westlaw, and Lexis Advance. Part V concludes this article and Part VI contains an appendix with a prototype for a future reference source that extracts and organizes foreign law filed in our U.S. federal courts.
II. International Comity and A Taxonomy of Civil Cases in U.S. Federal Court that Consider Foreign Law
Civil litigants (and judges) in U.S. federal court consider the law of a foreign sovereign in an array of circumstances for a variety of reasons.Footnote 18 International comity is the theoretical foundation underlying the treatment of foreign sovereigns and foreign law by U.S. federal courts.Footnote 19 Section A, below, provides an overview of international comity as it is understood by courts and scholars today. Following the discussion of international comity, section B provides a taxonomy of cases that give rise to party pleadings and judicial opinions that provide and construe foreign law. The taxonomy is not necessarily comprehensive and there is overlap between the categories, but the groupings demonstrate the breadth of topics that can trigger production and consideration of foreign law.
A. Overview of International Comity
In 1895, in Hilton v. Guyot,Footnote 20 the U.S. Supreme Court identified the concept of international comity as:
“the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to inter-national duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws.”Footnote 21
In the subsequent 120 years after Hilton, however, U.S. federal courts failed to agree on the practical contours of international comity, leading to inconsistencies among precedents.Footnote 22 To remedy the confusion, Professor William Dodge recently conducted a study of U.S. federal court cases and synthesized from them a definition of what international comity is today: “[i]nternational comity is deference to foreign government actors that is not required by international law but is incorporated in domestic law.”Footnote 23
Using this definition, international comity operates as both a principle of recognition and a principle of restraint.Footnote 24 As a principle of recognition, international comity authorizes U.S. federal courts to recognize (and sometimes actually apply) the law of foreign sovereigns.Footnote 25 As a principle of restraint, international comity stops U.S. federal courts from adjudicating cases that infringe on the sovereignty of other nations.Footnote 26 Reciprocal respect among nations is the ultimate goal.Footnote 27
Regardless of whether international comity is acting as a principle of recognition or as a principle of restraint, arguments based on notions of international comity rely on some demonstration of foreign law. As the taxonomy below, in section B, explains, sometimes recognition of foreign law requires actual application of foreign law in U.S. federal court. Application of foreign law is impossible without first determining its content. Moreover, sometimes restraint of U.S. federal court jurisdiction requires proof of foreign legislation (translated, certified, and oftentimes accompanied by expert legal analysis) that demonstrates a foreign sovereign's superiority over certain rights protected under U.S. law.
B. Taxonomy of Civil Cases in U.S. Federal Courts that Consider Foreign Law
There are several types of cases in which litigants ask federal courts to consider foreign law. These include cases falling under the “conflict of laws” umbrella (choice of law, jurisdiction, and recognition/enforcement cases) as well as cases involving foreign affairs doctrines, federal statutes, treaties, customary international law, and even the U.S. Constitution. The depth of treatment with which a court considers foreign law in these cases runs the gamut between those in which the court merely notes foreign law in a stray citation to those in which courts apply foreign law to the merits of the case.
1. “Choice of Law” Cases
“Choice of law” cases are a subset of cases involving the “conflict of laws.”Footnote 28 “Conflict of laws” is a legal term of artFootnote 29 defined as a “system of jurisprudence which determines which law applies or reconciles inconsistencies of conflicting laws”Footnote 30 in “all situations where the affairs of men cut across state lines.”Footnote 31 In other words, transactions that occur across state lines or national borders can give rise to disputes involving the laws of more than one state and/or more than one country.Footnote 32 In these cases, courts must decide which law applies and/or reconcile inconsistencies between the laws in order to adjudicate the case.Footnote 33
In 1987, U.S. state and federal courts decided 2,245 cases involving the conflict of laws.Footnote 34 Thirty years later, in 2017, U.S. state and federal courts decided 5,382 cases involving the conflict of laws.Footnote 35 The 140 percent increase in conflict of laws cases results from technological advancements that make it easier for “the affairs of men” to cut across state and national lines, giving rise to more disputes.Footnote 36 Unfortunately, none of the available statistics analyzes those numbers further to show which percentage of conflict of laws disputes result specifically from transnational as opposed to interstate disputes.
Contractual disputes and allegations of tortious conduct are the most common situations wherein litigants disagree on the substantive law that supports their claims or defenses and judges are forced to choose which substantive law applies.Footnote 37 If the parties had a pre-existing contract with a valid choice of law clause, federal courts will apply the law of the country identified in the choice of law clause.Footnote 38 In the absence of a contract with a valid choice of law clause (or in the absence of any contract at all), a court will undertake a choice of law analysis to determine which country's substantive law(s) will govern the issue(s) in dispute.Footnote 39
Under the choice of law analysis, a judge weighs a series of non-dispositive factors to decide whether to apply foreign law or U.S. law (also called the forum law).Footnote 40 The party arguing for the application of foreign law will provide the court with documentation of foreign law in an effort to persuade the judge that the foreign law governs the case and is appropriate, accessible, and “easily” applied.Footnote 41 If the court agrees that foreign law forms the substantive law of the dispute, both opposing counsel and, sometimes, the judge, herself, will research and produce foreign law and analysis for the record.Footnote 42 Regardless of a judge's ultimate decision of whether to apply or avoid foreign law under a choice of law analysis, the dockets of choice of law cases often provide rich sources for extracting foreign law and legal analysis because at least one of the parties is arguing that foreign law is not only relevant to an issue, but also provides the mandatory, governing law.
2. Jurisdiction Cases
Some cases involving the jurisdiction of federal courts also fall under the “conflict of laws” umbrella. Article III, section 1 of the U.S. Constitution created the U.S. Supreme Court and gave Congress the power to create a system of “inferior [c]ourts” below.Footnote 43 In response, Congress created a two-level court system under the U.S. Supreme Court, consisting of federal district courts and federal circuit courts.Footnote 44 Federal district courts are the trial courts that receive party pleadings, hold hearings, and issue rulings on claims and defenses.Footnote 45 Federal circuit courts are the intermediate courts that hear appeals from district court decisions.Footnote 46 All federal courts are courts of limited jurisdiction;Footnote 47 they must have personal jurisdiction over all the partiesFootnote 48 as well as subject matter jurisdiction over the claims and defenses that form the basis of the lawsuit.Footnote 49
In transnational disputes, subject matter jurisdiction based on a federal statute or diversity of citizenship are the most likely ways for litigants to get their cases heard in U.S. federal district court. Subject matter jurisdiction based on a federal statute is relatively straightforward; disputes arising under federal statutes belong in federal court.Footnote 50 For example, the Eastern District of New York had subject matter jurisdiction in the Animal Science case because plaintiffs alleged antitrust violations under the Sherman Act, which is a federal statute prohibiting anti-competitive behavior in the marketplace.Footnote 51 On the other hand, subject matter jurisdiction based on diversity of citizenship does not have to involve a federal statute.Footnote 52 Subject matter jurisdiction based on diversity of citizenship simply requires that the amount in controversy exceeds $75,000 and that the parties on either side of the dispute are citizens of different U.S. states or citizens of the U.S. and of a foreign state.Footnote 53 In cases involving diversity jurisdiction disputes, parties may produce foreign law (in particular, the nationality laws of foreign sovereigns) to prove (or disprove) citizenship for the purpose of establishing (or denying) diversity jurisdiction exists.
Moreover, even when, technically, a U.S. federal court has proper jurisdiction, litigants may assert arguments based on notions of international comity to persuade a court to abstain from exercising its jurisdiction.Footnote 54 One of the most popular examples is the doctrine of forum non conveniens.Footnote 55 The doctrine of forum non conveniens allows a federal court to dismiss a case from its docket if it determines that another sovereign's court system also has jurisdiction and is better able to adjudicate the case.Footnote 56 Cases involving foreign law and/or foreign parties are especially vulnerable to dismissal under the doctrine of forum non conveniens.Footnote 57 Regardless of a case's eventual outcome, however, in forum non conveniens disputes, parties submit documentation and expert analysis on the legal system(s) of foreign jurisdiction(s) to demonstrate or deny that an “adequate alternative forum” exists to adjudicate the dispute. All of that information is submitted to U.S. federal courts and available in the record for future practitioners and scholars.
3. Recognition and Enforcement of Judgment Cases
The third subset of cases potentially involving the “conflict of laws” focuses on the post-judgment stage of litigation.Footnote 58 Assuming a case goes all the way to trial and a court issues a decision, the winning party will seek to collect payment. But, when the losing party's assets are located in another forum/country, the winning party must seek recognition and enforcement of the judgment in that other forum/country to receive payment.Footnote 59 Bankruptcy cases, family law (divorce and child support) cases, torts cases, and cases involving commercial contracts often require cross-border recognition and enforcement.
The Restatement (Third) of Foreign Relations Law provides the general rule that foreign judgments are entitled to recognition and enforcement unless there are grounds for non-recognition.Footnote 60 Section 482 of the Restatement (Third) of Foreign Relations Law outlines mandatory and discretionary grounds for non-recognition of foreign judgments.Footnote 61 U.S. courts “may not recognize” a foreign judgment if the foreign court lacked due process protections or personal jurisdiction over the parties.Footnote 62 As discretionary grounds, U.S. courts “need not recognize” a foreign judgment if: “(a) the court that rendered the judgment did not have jurisdiction of the subject matter of the action; (b) the defendant did not receive notice of the proceedings in sufficient time to enable him to defend; (c) the judgment was obtained by fraud; (d) the cause of action on which the judgment was based, or the judgement itself, is repugnant to the public policy of the United States or of the State where recognition is sought; (e) the judgment conflicts with another final judgment that is entitled to recognition; or (f) the proceeding in the foreign court was contrary to an agreement between the parties to submit the controversy on which the judgment is based to another forum.”Footnote 63
In these types of cases, the party seeking recognition and enforcement of a foreign judgment will provide the U.S. federal district court with copies of the foreign judgment(s) and also, sometimes, with other documentation of foreign law and/or the foreign legal system. Opposing counsel may also produce foreign law, but for the reason of opposing recognition and enforcement of the foreign judgment. Either way, foreign law is filed in the docket and guides the district court judge's decision.
4. Cases Involving Foreign Affairs Doctrines
The fourth type of cases that considers foreign law are cases involving foreign affairs doctrines.Footnote 64 The Animal Science case fits nicely in this category because the defendant cited three examples of foreign affairs doctrines as reasons to set aside its liability for violating U.S. antitrust law: the Act of State Doctrine; the Foreign Sovereign Compulsion Doctrine; and a defense of international comity (in general).Footnote 65 To support (and oppose) these defenses, both parties in the Animal Science litigation produced documentation on Chinese law. The doctrine of international comity is discussed in detail above; the sections below focus on the other two foreign affairs doctrines asserted in the Animal Science case.
a. Act of State Doctrine
The Act of State doctrine prohibits U.S. federal courts from questioning the validity of an official act of a foreign sovereign performed within its own territory.Footnote 66 According to the U.S. Supreme Court, “[e]very sovereign state is bound to respect the independence of every other sovereign state…Redress of grievances by reason of such acts must be obtained through the means open to be availed by sovereign powers as between themselves.”Footnote 67
In practice, the Act of State defense depends not only on valid reasons why diplomatic channels of dispute resolution are more appropriate than adjudication in U.S. federal court, but also on proof of an official public act.Footnote 68 Proof of an official public act requires submission of a “statute, decree, order or resolution” of the foreign sovereign.Footnote 69 The official public act requirement, therefore, prompted the defendants in the Animal Science case (and the Chinese government in its amicus briefs) to provide documentation and analysis of Chinese law, which remains stacked in the records, figuratively speaking.
b. Foreign Sovereign Compulsion Doctrine
The foreign sovereign compulsion doctrine restrains U.S. federal courts from imposing liability for committing violations of U.S. law abroad if those violations were compelled by the law(s) of the relevant foreign jurisdiction.Footnote 70 It is the “devil made me do it” defense, focused on fairness to the defendant rather than on notions of sovereignty.Footnote 71 As explained by the lower court in the Animal Science case:
“[t]he defense of foreign sovereign compulsion…focuses on the plight of a defendant who is subject to conflicting legal obligations under two sovereign states. Rather than being concerned with diplomatic implications of condemning another country's official acts, the foreign sovereign compulsion doctrine recognizes that a defendant trying to do business under conflicting legal regimes may be caught between the proverbial rock and a hard place where compliance with one country's laws results in violation of another's.”Footnote 72
Naturally, the proponent of this defense must produce comprehensive documentation on the law(s) of the relevant foreign jurisdiction that identifies a direct conflict with U.S. law and demonstrates the forced nature of compliance with foreign law.Footnote 73 The opposing party will likewise produce documentation and analysis of the foreign sovereign's law to contest the conflict and/or the compulsion. The defendants in Animal Science submitted official Chinese legislation and analysis to show that they were obligated by China to fix prices on their products, in direct violation of U.S. antitrust laws. In response, plaintiffs scoured China's official and unofficial positions to cast genuine doubt on whether China compelled defendants to violate U.S. laws throughout the entirety of the relevant time frame.
Regardless of whether challenges to jurisdiction are ultimately successful, parties submit foreign law during litigation and that documentation remains in the record for the benefit of future researchers (if they can find it).
5. Cases Involving Federal Statutes that Implicate Foreign Law
Several federal statutes explicitly incorporate foreign law by reference. The Foreign Corrupt Practices Act (FCPA), for example, creates civil and criminal penalties for bribing foreign officials but recognizes an affirmative defense based on foreign law.Footnote 74 It states that a defendant can escape liability if “the payment, gift, offer or promise of anything of value that was made, was lawful under the written laws and regulations of the foreign official's, political party's, party official's, or candidate's country…”Footnote 75 By its terms, this affirmative defense allows defendants to produce foreign law that exculpates them from liability.
Similarly, Congress explicitly created an exception to Title VII of the 1964 Civil Rights Act that allows workplaces located in foreign countries to discriminate against their workers “if compliance [with Title VII] would cause such an employer…to violate the law of the foreign country in which such workplace is located.”Footnote 76 Employers accused of discrimination need only point to a foreign law in conflict with Title VII protections.
Another example is a federal statute called the Lacey Act Amendments of 1981, which imposes civil and criminal penalties for the importation, exportation, transport, sale, receipt, acquisition, or purchase in interstate or foreign commerce of “any fish or wildlife taken, possessed, transported, or sold in violation of…any foreign law.”Footnote 77 The Tariff Act of 1930 is another example that forbids the importation of wild animals and birds in violation of foreign law.Footnote 78 By their terms, these federal statutes require plaintiffs (or prosecutors) to survey foreign law to succeed on their claims.
Moreover, several federal statutes implicate foreign materials as relevant for a claim or defense. For example, our U.S. patent laws encourage harmonization with the patent laws of other countries and, therefore, parties will produce foreign patent laws in U.S. patent litigation.Footnote 79 Also, the federal tax code permits tax breaks for citizens paying foreign taxes; by implication, to receive a tax credit, one must produce documentation of foreign tax payments.Footnote 80 Furthermore, as noted by the lower court in the Animal Science case, the Sherman Act, which prohibits “every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations,”Footnote 81 was intended by Congress to apply “to foreign conduct that was meant to produce and did in fact produce some substantial effect in the United States.”Footnote 82 Lastly, our immigration statutes require foreign documentation and evidence of foreign law to prove eligibility to remain in the United States.Footnote 83
6. Cases Interpreting Treaties Ratified by the U.S.
Treaties ratified by the U.S. have the force of U.S. federal law,Footnote 84 but require judges to look beyond U.S. domestic law in their interpretation.Footnote 85 The U.S. Supreme Court has explained that the interpretation of treaties begins with the text and expands to include the travaux preparatoires and the interpretations of the treaty by other signatory states.Footnote 86
For example, in Abbott v. Abbott, litigants asked the U.S. Supreme Court to construe the phrase “right of custody” as provided in the Hague Convention on the Civil Aspects of International Child Abduction, a treaty ratified by the U.S. and implemented into federal law in 1988.Footnote 87 As part of its analysis, the litigants produced (and the Court reviewed) documentation and analysis of Chilean law to determine if the plaintiff's scope of parental authority in the child's country of habitual residence constituted “rights of custody” under the treaty.Footnote 88 In addition to Chilean law, the parties also submitted (and the Court construed) case law from “sister signatories” to the treaty, which the Court deemed “entitled to considerable weight.”Footnote 89
7. Cases Alleging Violations of Customary International Law
U.S. federal courts also receive party submissions about foreign law in cases involving claims for relief under customary international law. For example, the Alien Tort Claims Act (ATCA, which is also called the Alien Tort Statute, or ATS) is an example of a federal statute that gives subject matter jurisdiction to U.S. federal courts to adjudicate claims for tort injuries “committed in violation of the law of nations.”Footnote 90 The ATCA does not, itself, provide a cause of action; it is merely a jurisdictional statute.Footnote 91 Yet, it is a vehicle that drives causes of action based on violations of customary international law, such as allegations of piracy and torture, into U.S. federal court. To succeed on the merits of a cause of action based on customary international law, plaintiffs must produce both foreign and international legal materials to demonstrate the prohibition of defendants’ conduct by the law of nations.
8. Controversial Cases
The final category of U.S. federal court cases that consider foreign law is the only controversial one of this taxonomy. This category includes all situations in which litigants (and judges) cite foreign law as persuasive support in arguments construing the U.S. Constitution or other U.S. domestic law that does not explicitly implicate or refer to foreign law.Footnote 92 For example, the U.S. Supreme Court cited foreign law as persuasive support in holding that the Eighth Amendment of the U.S. Constitution prohibited capital punishment for minorsFootnote 93 and that the Due Process Clause permitted the right to engage in same sex intimate relations.Footnote 94 These cases sparked a debate among Justices, academics, and politicians who accused the Justices who joined the majority opinion of subverting the democratic process and “cherry picking” legal support.Footnote 95 Yet, zealous advocacy looks to all forms of support and litigants will likely continue to cite foreign law when it bolsters their arguments.
III. Rule 44.1 of the Federal Rules of Civil Procedure (FRCP)
When civil litigants in federal district courts assert that their case involves an issue or question involving foreign law, they must provide notice and documentation, as required by the Federal Rules of Civil Procedure (FRCP) Rule 44.1.Footnote 96 As explained in Part IV of this Article, FRCP Rule 44.1 is a key to locating the rich reserves of foreign legal materials buried in federal case dockets. Section A, below, traces the development of FRCP Rule 44.1; section B analyzes its inconsistent application in U.S. federal courts.
A. The Development of FRCP Rule 44.1
In the Animal Science case, during oral argument, counsel for the American purchasers explained that … “courts in this country have been interpreting and construing foreign law for two centuries and not outsourcing that task to other entities simply because those questions are difficult.”Footnote 97 Until FRCP Rule 44.1, however, federal courts lacked a consistent procedure for considering cases involving foreign law.
1. Foreign Law in Federal Courts prior to 1938
Prior to the creation of the FRCP Rule 44.1,Footnote 98 the U.S. legal system followed the English common law rule that characterized the law of a foreign country as a question of “fact.”Footnote 99 In practice, this “fact theory” required parties to plead and prove foreign law in their claims or defenses as they would any other fact.Footnote 100 Parties intending to rely on foreign law had to provide significant detailFootnote 101 about the content and impact of the foreign law at the initial pleading stage, which was sometimes too early in the genesis of a case to identify the applicability of foreign law at all.Footnote 102 Additionally, parties had to follow strict rules of evidence in submitting proof of foreign law. For example, parties relying on written foreign law had to provide authentic, official versions of the foreign law from an authorized agent of the foreign government.Footnote 103 Secondary sources were excluded as hearsay.Footnote 104 Expert testimony was appropriate only when the foreign law was unwritten or when the official version of the written law was unavailable.Footnote 105 In such situations, parties had to identify experts who could appear in-person to orally communicate the content of the foreign law during direct- and cross-examination. Footnote 106
Federal courts struggled to identify the body – judge or jury – responsible for ascertaining foreign law.Footnote 107 Usually, juries decided questions of fact, but some judges felt compelled to seize control of foreign law decisions, especially when parties relied on written materials.Footnote 108 The body responsible for ascertaining the content of foreign law, whether jury or judge, could only rely on the evidence presentedFootnote 109 and its interpretations of foreign law lacked confidenceFootnote 110 as well as the force of stare decisis.Footnote 111 Appellate courts varied in the standard of review they applied to findings of foreign law.Footnote 112
Parties struggled to produce sufficient evidence of foreign law under shifting expectations.Footnote 113 Failure to prove foreign law usually led to application of the law of the forum.Footnote 114 Courts justified turning to the forum law when faced with inadequate proof of foreign law by creating presumptions.Footnote 115 When parties failed to plead foreign law, courts presumed they implicitly agreed to apply forum law insteadFootnote 116 or courts presumed that the law of the forum was the same as the foreign law.Footnote 117 These presumptions continue today,Footnote 118 despite criticism.Footnote 119
2. Foreign Law in Federal Courts between 1938-1966
In 1934, Congress authorized the U.S. Supreme Court to create general rules of civil procedure for federal district courts.Footnote 120 On December 20, 1937, the U.S. Supreme Court adopted the FRCPFootnote 121 and, after transmission to Congress,Footnote 122 the FRCP finally became effective on September 16, 1938.Footnote 123
In many ways, the FRCP achieved its purpose of unifying federal procedural rules, but it did not alter federal practice for parties and courts facing cases involving foreign law.Footnote 124 The FRCP retained the common law rules that characterized foreign law as “fact.” Additionally, courts continued to force parties to raise issues of foreign law at the pleadings stage and prove the content of foreign law through official texts and expert (oral) testimony.Footnote 125 The ascertainment of foreign law, as a determination of fact, was still supposed to go to the jury and it survived challenge unless it was “clearly erroneous.”Footnote 126
In 1958, the American Bar Association lobbied Congress to reform judicial procedures for raising and proving foreign law.Footnote 127 Congress established the Commission and Advisory Committee on International Rules of Judicial Procedure (“the Commission”).Footnote 128 The Commission, working in collaboration with other advocacy groups, completely revamped the FRCP.Footnote 129 The changes became effective July 1, 1966.Footnote 130
3. Foreign Law in Federal Courts 1966-present
FRCP Rule 44.1 was created as part of the 1966 revision of the FRCP to “furnish Federal courts with a uniform and effective procedure for raising and determining an issue concerning the law of a foreign country.”Footnote 131
FRCP Rule 44.1 provides:
A party who intends to raise an issue about a foreign country's law must give notice by a pleading or other writing. In determining foreign law, the court 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 must be treated as a ruling on a question of law.Footnote 132 [emphasis mine]
a) Notice
The first sentence of FRCP Rule 44.1 requires parties to give the court (and opposing counsel) written notice of an issue involving the law of a foreign country,Footnote 133 however, such notice is no longer limited to the pleadings.Footnote 134 Under FRCP Rule 44.1, parties may now take their time to fully research and analyze their cases to determine whether or not foreign law is both relevant and beneficial to their cause.Footnote 135 The Advisory Committee Notes accompanying FRCP Rule 44.1 recommend a standard of “reasonableness” to challenges of untimely notice.Footnote 136
The rule is silent on the depth of detail required in the notice, but the Advisory Committee recommends that the notice “should specify the segment of the controversy thought to be governed by foreign law and identify the country whose law is claimed to control the matter.”Footnote 137 A party that fails to provide reasonable notice forfeits the ability to rely on foreign law.Footnote 138
b) Any Relevant Material or Source
Unlike under the common law, where parties had to follow the rules of (best) evidence and fact-finders couldn't look beyond the record, FRCP Rule 44.1 permits the court to consider “any relevant material or source.”Footnote 139 According to the Advisory Committee Notes accompanying FRCP Rule 44.1, the phrase “any relevant material” implies that the court “is not limited by material presented by the parties; it may engage in its own research and consider any relevant material thus found.”Footnote 140 Parties may submit any material, as long as it is relevant, without needing to satisfy evidence formalities.Footnote 141 In the Advisory Committee's view, FRCP 44.1 is founded on the assumption that the manner in which law is provided to the judge is a procedural issue, not an evidentiary one, and, therefore, the rules of evidence do not apply when educating the judge about foreign law.Footnote 142 FRCP Rule 44.1 permitsFootnote 143 courts to “take an active role in the process of ascertaining foreign law….[t]hus, a judicial practice of automatically refusing to engage in research or to assist or to provide direction for counsel with regard to what is wanted by the court to help it establish the content of the applicable foreign law would be inconsistent with one of the rule's basic premises”Footnote 144 Yet, FRCP Rule 44.1 does not expect judges to become experts in foreign law, as they are experts in domestic law, and thus, the rule does not force judges to take judicial notice of foreign law or determine foreign law without assistance of counsel.Footnote 145
c) Question of Law
The third sentence of FRCP Rule 44.1 officially identifies foreign law as a question of law – not fact – and in so doing entitles determinations of foreign law to a de novo standard of review.Footnote 146 Although FRCP Rule 44.1 does not explicitly delegate determinations of foreign law to judge or jury, the Advisory Committee Notes accompanying FRCP Rule 44.1 say “[i]t has long been thought, however, that the jury is not the appropriate body to determine issues of foreign law.”Footnote 147
B. The Application of FRCP Rule 44.1
Under FRCP Rule 44.1, foreign law is law and not a fact to be proven as other facts under the evidence rules,Footnote 148 but foreign law also requires notice and demonstration,Footnote 149 unlike domestic law.Footnote 150 Scholars who have noted the unique treatment of foreign law under FRCP Rule 44.1 have labelled foreign law a “tertium genus,” a hybrid category existing between law and fact.Footnote 151
So, the parties must provide some documentation of foreign law, but FRCP Rule 44.1 doesn't specify how much. Worse yet, FRCP Rule 44.1 fails to articulate a division of labor between the court and the parties.Footnote 152 Who – court or litigant(s) – has the ultimate responsibility of figuring out what the content of the foreign law is?Footnote 153 Federal circuits disagree.Footnote 154 Some courts place the full responsibility on the parties. If the parties do not provide “sufficient proof” of foreign law, the court will default to the law of the forum.Footnote 155 These courts follow a strict “adversarial tradition.”Footnote 156 Other courts, however, assume some, if not all, of the responsibility of determining the content of foreign law. If the parties provide insufficient or conflicting documentation, the court will conduct independent research or utilize other available methods until it exposes the “correct” content of the foreign law.Footnote 157 These courts follow a “court-centered tradition.”Footnote 158 The path a court chooses results in application of different law (foreign or forum) and, therefore, significantly impacts case outcomes.Footnote 159
The sections below focus on these two competing approaches to litigation involving foreign law because they highlight what one scholar refers to as the “conceptual incoherence” of FRCP Rule 44.1 in permitting both approaches to coexist.Footnote 160 The U.S. Supreme Court's decision in the Animal Science case did not address or resolve the federal circuit split on the issue of FRCP Rule 44.1's failure to identify the proper division of labor in determining the content of foreign law. As a result, the current state of the law is best summarized by the Ninth Circuit, which said “we are uncertain [who] bears the burden of establishing the content of foreign law[.]”Footnote 161
1. The Common Ground
Regardless of how a federal circuit answers the ultimate responsibility question under FRCP Rule 44.1, litigants provide documentation on foreign law using methods they also use for domestic law.Footnote 162 U.S. litigants accurately assume that the vast majority of judges do not have any knowledge of foreign law or legal systems, so they try to produce as much credible information as possible.Footnote 163
a. Primary Sources of Foreign Law (translated into English)
Naturally, the best method of demonstrating foreign law is to provide the court with copies of primary sources of law including: constitutions, codes, legislation, regulations, judicial decisions, and administrative materials.Footnote 164 English translations of foreign law do not need to be official or certified,Footnote 165 but many advocates will opt for certified translations whenever client resources allow.Footnote 166 Certified or not, however, the quality of translations vary, leading one scholar to say it is “virtually impossible to translate literally…because not only the words, but the form of expression…often have no corresponding words or ideas among English-speaking people.”Footnote 167
b. Expert Affidavits/Declarations
In practice, once an attorney knows her case involves foreign law, she will seek an expert in that foreign jurisdiction.Footnote 168 The job of the expert is to (i) help litigants gather relevant primary sources of foreign law (see above) and (ii) write an affidavit (also called a declaration) that explains how the foreign law is construed and applied in the foreign jurisdiction.Footnote 169 Finding a capable, credible expert remains a huge challenge for litigants.Footnote 170 As one scholar from the print era noted: “they are not listed in the yellow pages.”Footnote 171 And in the Internet age, despite a plethora of claims of expertise online, few people have what it takes to empower a judge to comfortably construe foreign law.Footnote 172 The best experts will perform a “double process of translation” wherein they analyze terms and concepts embedded within the culture of the foreign legal system and then explain those terms and concepts within the context of the U.S. legal framework.Footnote 173 Needless to say, this process requires fluency in both the foreign legal system and the U.S. legal system plus impeccable language and communication skills.Footnote 174 Many litigants will not be able to afford the substantial costs involved with identifying and hiring a foreign law expert.Footnote 175
2. The Divide
Litigants often do not agree on whether or not foreign law applies at all.Footnote 176 Moreover, even when parties stipulate that the law of a foreign jurisdiction applies, they do not necessarily agree on which section/case/regulation applies or which party's expert provides the more accurate explanation of the foreign law.Footnote 177 In fact, some litigants purposely overwhelm the court with confusing and conflicting accounts of foreign law as a strategy to encourage the court to apply forum law instead of foreign law.Footnote 178 Since FRCP Rule 44.1 fails to identify the actor – court or party – who is ultimately responsible for determining the content of foreign law, federal circuits will approach cases that involve confusing and conflicting accounts of foreign law, differently.Footnote 179
a. The Strict Adversarial Approach
Courts that follow the strict adversarial approach believe that the party asserting the applicability of foreign law is responsible for demonstrating what the content of the foreign law is.Footnote 180 These courts dismiss any notion that U.S. judges have an inherent, all-encompassing legal expertise that somehow makes up for a lack of education and resources.Footnote 181 As one scholar argues: [U.S. judges] “are experts in American law…To reason that a judge can determine the law of a foreign country because judges are ‘experts on law’…is tantamount to reasoning that a cardiologist can fix an ACL tear in the knee because doctors are experts in medicine, a rather suspect proposition.”Footnote 182
Additionally, courts that follow a strict adversary approach rarely conduct independent research to educate themselves on the content of foreign law.Footnote 183 These courts assert that the Advisory Committee grants the freedom to “engage in [their] own research,” but does not obligate them to do so.Footnote 184 In the words of one federal judge: “[s]ome of you will be thinking that Rule 44.1 expressly authorizes the Court to do independent research into foreign law. Yes, it does – but it doesn't require it to. Trial judges usually can't. Indeed, they usually shouldn't. And they probably won't…We have quite a few things to do besides decoding the Codigo Civil…”Footnote 185
Almost every court, regardless of inclination, will apply forum law when parties fail to raise or provide any documentation of foreign law.Footnote 186 After all, FRCP Rule 44.1 requires some party-based effort.Footnote 187 But some courts are predisposed to avoid foreign law entirely, even when a choice-of-law analysis requires its application; these courts insert a “burden of proof” requirement on the parties similar to that which existed pre-FRCP Rule 44.1 when foreign law was a fact to be proven.Footnote 188 In the view of these courts, parties must “prove” foreign law and failure to do so leads to application of forum law.Footnote 189 Courts within the Third and Fifth Circuits are most notorious for choosing this path, both at trial and on review.Footnote 190 Scholars have attacked these circuits for misinterpreting and misapplying FRCP Rule 44.1,Footnote 191 but until the Supreme Court rules otherwise, the “burden of proof” requirement is still precedent in these circuits.
b. The Court-Centered Approach
As stated above, few U.S. courts will apply foreign law when parties fail to raise or produce any documentation of foreign law,Footnote 192 but the division between courts that follow the strict adversarial tradition and courts that follow the court-centered tradition occurs when parties do raise an issue of foreign law and do produce some documentation of foreign law.Footnote 193 Unlike courts that follow the strict adversarial approach, courts that follow the court-centered approach will seek other means of information about foreign law outside of the party presentations, until they are confident of applying the “correct” law.Footnote 194
Judges that follow a court-centered approach view themselves, primarily, as experts in law, skilled in legal analysis and application. They focus on the similarities of foreign law and domestic law, rather than the differences. They are not intimidated by foreign legal systems or worry that they are outsiders incapable of looking-in. A federal judge from New York in the 1970s explained:
“In any event, though we view another country's law but through a glass darkly, I am less pessimistic than Justice Holmes as to our ability to handle foreign legal authorities. Of course, arguing foreign law is more complex than when the law is domestic. More of the steps must be spelled out, more assumptions made explicit, less taken for granted. Yet, if what is relied on is law and not some primitive religion or the whim of a tyrant, the form of reasoning will be familiar.”Footnote 195
Courts that follow the court-centered tradition reject any notion of a proof standard within FRCP Rule 44.1.Footnote 196 These courts believe that if a court is unsure of the content of foreign law, the court has an obligation to cure the problem by looking beyond party presentations until it discovers the “correct” law to apply.Footnote 197 As Wright and Miller recognize: “[i]t simply is not fair to bar a party from recovering when neither his attorney nor the court is able to conjure up the content of the governing law.”Footnote 198
Courts that follow a court-centered tradition employ a number of strategies to cure uncertainty stemming from unclear, conflicting, or in any other way, inadequate party presentations.Footnote 199 For example, the Seventh Circuit insists that both trial and appellate courts must research the content of foreign law independently.Footnote 200 In Bodum USA, Inc. v. La Cafetiere, Inc., a three-member panel of the Seventh Circuit, which included Chief Judge Easterbrook, Judge Posner, and Judge Wood, delved into French contract law to decide a trademark infringement case.Footnote 201 Each of the Seventh Circuit judges agreed on the judgment, but wrote his/her own separate opinion on judicial responsibility in determining the content of foreign law under FRCP Rule 44.1.
In the majority opinion, Chief Judge Easterbrook criticized lower courts’ reliance on biased expert declarations and said that judges should instead favor “unbiased” written secondary sources on a foreign jurisdiction's law:
“[i]t is no more necessary to resort to expert declarations about the law of France than about the law of Louisiana ….Trying to establish foreign law through experts’ declarations not only is expensive (experts must be located and paid) but also adds an adversary's spin, which the court must then discount. Published sources such as treatises do not have the slant that characterizes the warring declarations presented in this case. Because objective, English-language descriptions of French law are readily available, we prefer them to the parties’ declarations.”Footnote 202
In his concurrence, Judge Posner wanted “to amplify” the court's criticism of expert declarations and to encourage independent judicial research.Footnote 203 He wrote:
“…our [American] linguistic provincialism does not excuse intellectual provincialism. It does not justify our judges in relying on paid witnesses to spoon feed them foreign law that can be found well explained in English-language treatises and articles. I do not criticize the district court in this case, because he was following the common practice. But it is a bad practice… It is excusable only when the foreign law is the law of a country with such an obscure or poorly developed legal system that there are no secondary materials to which the judge could turn.”Footnote 204
Judge Wood concurred with the judgment, but wrote separately to defend use of experts in determining the content of foreign law:
“Rule 44.1 itself establishes no hierarchy for sources of foreign law, and I am unpersuaded by my colleagues’ assertion that expert testimony is categorically inferior to published, English-language materials…There will be many times when testimony from an acknowledged expert in foreign law will be helpful, or even necessary, to ensure that the U.S. judge is not confronted with a “false friend” or that the U.S. judge understands the full context of the foreign provision. Some published articles or treatises, written particularly for a U.S. audience, might perform the same service, but many will not…It will often be most efficient and useful for the judge to have before her an expert who can provide the needed precision on the spot, rather than have the judge wade through a number of secondary sources. In practice, the experts produced by the parties are often the authors of the leading treatises and scholarly articles in the foreign country anyway…Footnote 205
The three separate opinions in the Bodum case represent the nuanced views of courts that follow a court-centered tradition on cases involving foreign law under FRCP Rule 44.1. Although suspicious of bias, these courts accept expert declarations and translations of foreign law materials, but are willing to conduct independent judicial research to find and apply the “correct” law.
IV. Creating a Reference Source that Extracts Foreign Law from Civil Pleadings Filed in U.S. Federal Courts: A Prototype
As explained above, litigants (and judges) need to find and construe foreign law in a variety of situations, yet they have difficulty identifying credible foreign law experts and gathering sufficient documentation of foreign law content. Certainly, existing legal research databases, when accessible to litigants (and judges), provide some relief. Westlaw and Lexis provide selected foreign law content from English-speaking countries as well as law reviews or subject-specific treatises that include analysis of foreign law. The Foreign Law Guide, Globalex, and the Law Library of Congress's Guide to Law Online explain the legal structure of foreign jurisdictions, identify official publications, and provide access to authentic government websites.Footnote 206 But, existing databases do not provide names of foreign law experts and a means to assess their work product. Additionally, they do not provide certified translations of foreign law unless the foreign government has issued an official translation. On the other hand, our U.S. federal court dockets do offer a means to ascertain this information, but there isn't yet an efficient way to retrieve it. A reference source that extracts and organizes the foreign law and legal analysis submitted to our courts would respond to litigant and judicial complaints and would also avoid the embarrassment that results in judicial inconsistency.Footnote 207
Of course, such a reference source is not without its faults. It may provide a “jumping off” point to finding foreign law and legal analysis through precedent, but it doesn't guarantee accuracy of the content of foreign law. There is a legitimate concern that litigants (or judges) might rely solely on what prior federal courts in prior cases concluded on the basis of the foreign law and legal analysis submitted to them. Yet, there is value in prior precedent. As one scholar noted in the 1980s (and it is even more true today):
“[w]ith the increasing number of foreign-law disputes confronting American courts, the use of prior domestic decisions is likely to expand. At least some weight should be given to these decisions. Indeed, in the typical situation where the opinions of party experts conflict, the careful reasoning of an earlier court confronting the same issue may be quite helpful.”Footnote 208
FRCP Rule 44.1's acceptance of “any relevant material or source” obviously includes precedent. Plus, as noted earlier, improving the quality of party submissions of foreign law and legal analysis starts with identifying its current state. It helps to track what is happening in our courts before making an accuracy assessment. To that end, creation of a reference source that extracts the foreign law and legal analysis filed in our court dockets is as good a start as any.
A. A Prototype: The Extraction Process
So, how does one find the foreign law and legal analysis submitted to our courts? There are several options that, in combination, yield the most comprehensive product. None of the techniques described below are efficient, but in combination, they provide the best means available today to extract foreign law and legal analysis from our U.S. federal courts.
1. Federal Docket Research
Most cases settle long before they result in a judicial opinion. A docket search of federal cases captures cases in all stages of development whether ongoing, settled, or appealed. Even if one begins identifying relevant cases through editorial content or key word searches available through Westlaw or Lexis (see section 2, below), one must then turn to a docket search of the relevant cases to extract the foreign law and legal analysis filed within individual pleadings and accompanying exhibits. There are two subscription-based databases that provide the American legal academy with full-text access to all documents within the docket of a federal court case: PACER and Bloomberg Law.
a. PACER
PACER (Public Access to Court Electronic Records) is a U.S. government database provided by the Federal Judiciary that provides electronic public access to case and docket information from federal appellate, district, and bankruptcy courts.Footnote 209 PACER offers an index service that allows users to search fields for docket numbers, case names, party names, regions, and/or date ranges, but it does not permit keyword searching at all.Footnote 210 Unless one already knows a particular case wherein one or more parties asserts foreign law, PACER is not an efficient means of extracting foreign law filed in our courts. Additionally, PACER is a subscription-based service, so all searches result in fees.
b. Bloomberg Law
Many of us in the American legal academy prefer Bloomberg Law for docket research because it provides full-text access to all PACER documents without additional PACER-related fees. More importantly, Bloomberg Law offers a keyword search functionality of all the documents filed within a case's docket, which are available in OCR-scanned.pdf format.Footnote 211 So, users on Bloomberg Law are not limited to the case name, party name, court, or date range fields; they may also use Boolean language to search federal court documents for individual pleadings filed in U.S. federal courts.Footnote 212 As a disclaimer, Bloomberg Law's docket search function is clunky and it is not fully comprehensive,Footnote 213 but a well-crafted keyword search offers a way to begin creating a reference source that extracts the foreign law and legal analysis filed in U.S. federal courts.
Since FRCP Rule 44.1 is the procedural rule that parties should use to raise issues of foreign law, a docket search should include Rule 44.1 as a keyword. A keyword search of: “federal rule! of civil procedure 44.1” OR “federal rule! of civil procedure rule 44.1” OR “fed. r. civ. pro. 44.1” OR “Fed.R.Civ.P. 44.1” OR “FRCP 44.1” OR “rule 44.1” NOT “PCT Rule 44.1” NOT “criminal rule 44.1” within U.S. Supreme, Appellate and District courts yields 549 cases filed within the last five years and fifty-seven cases filed within the last twelve months.Footnote 214 This search is both over-inclusive and under-inclusive. It will provide results that cite an unrelated “rule 44.1” and it will fail to capture cases where parties raised foreign law without citing FRCP Rule 44.1. But, it is as good a search as one can craft to capture all the available FRCP Rule 44.1-related filings.
Of course, alternative options are to search “foreign law” or “law! of [foreign country]” or “[foreign country] law!” as keywords in a docket search of U.S. Supreme, Appellate, and District courts. A search of “foreign law,” however, yields 1000+ cases filed within the last five years and 432 cases filed within the last twelve months. Although it captures the most cases, this search is over-inclusive because it captures every case with a document that references foreign law, even if foreign law is not relevant to the case in any way. On the other hand, a search of “law! of France” OR “French law!” yields 484 cases filed within the last five years and only forty cases filed within the last twelve months. This search may be the best way to start compiling documentation of French law filed in U.S. court dockets, but it isn't an efficient way of finding documentation of the other 194 countries in the world.
Once one clicks on a result, Bloomberg Law provides the case's court docket and highlights in yellow the individual file(s) in the docket that cites the keyword(s) searched. If one conducts the FRCP Rule 44.1 search explained above, one confirms that parties raise issues of foreign law through FRCP Rule 44.1 throughout the process of litigation all the way up to trial. FRCP Rule 44.1 notices appear in complaints, responses, on their own in separate pleadings, in motions to dismiss for forum non conveniens, in summary judgment motions, in memoranda of law, in amicus briefs, in expert declarations, and/or in any other document filed with the courts.Footnote 215 Each of these pleadings often contains citations and analysis of foreign law. Additionally, each of these pleadings often attaches as exhibits the primary and secondary sources of authority that guide the analysis in the pleadings. These exhibits hold the certified translations of foreign legislation, case law, regulatory law, treatises, legal journal articles, and any other source of authority in which parties rely.
To find foreign law and legal analysis filed in U.S. federal courts, one must perform the tedious task of reading the pleadings that cite FRPC Rule 44.1 (or “foreign law” or “law! of [foreign country] or “[foreign country] law!”, depending on search performed) and all of the attached exhibits. Unfortunately, since Bloomberg Law relies on PACER's metadata, the descriptions of documents filed in the court dockets are not sufficiently or consistently detailed. For example, it is rare for Bloomberg Law to describe a document in the docket as: [name of person], expert declaration on [foreign country] law. Rather, the metadata of exhibits attached to pleadings merely state: exhibit A. One must open exhibit A to find the [name of person] expert declaration on [foreign country] law. One cannot, therefore, save time by relying on document descriptions of pleadings filed in the court docket to know which foreign law is cited or analyzed in a pleading or included as an exhibit.
2. Editorial Content & Key Word Searches on Westlaw or Lexis
Both Westlaw and Lexis Advance provide editorial content and advanced search functions that help identify some U.S. federal cases that involve issue(s) of foreign law. Neither of these databases, however, offer access to PACER or, by extension, full-text access to all the pleadings and exhibits that cite, analyze, and document foreign law filed in U.S. federal courts.Footnote 216 As a result, to create a reference source that tracks foreign law and legal analysis submitted to U.S. federal courts, Westlaw and Lexis Advance provide means to supplement, but not replace, the docket research process described above.
a. Citing References of FRCP Rule 44.1
The Westlaw and Lexis Advance databases allow users to retrieve cases, statutes, administrative materials, trial court documents, and secondary sources that cite FRCP Rule 44.1. On Westlaw, FRCP Rule 44.1 has 7,247 citing references, of which 1,342 are cases.Footnote 217 The Lexis Advance database offers 1,308 cases that cite to FRCP Rule 44.1. Both numbers are significantly under-inclusive. They only capture the rare number of cases that result in an order or opinion. As we know, however, most cases settle before ever reaching an order or opinion. Additionally, the case citing references on Westlaw and Lexis Advance only highlight those orders and opinions written by judges who cite to FRCP Rule 44.1. Not all judicial opinions are sufficiently detailed. Plus, if a judge cites to FRCP Rule 44.1 in her order or opinion, it could be because FRCP Rule 44.1 was a major component of the case and not just a procedural vehicle to submit documentation of foreign law and legal analysis. To clarify, the approximately 1,300 case citing references of FRCP Rule 44.1 on Westlaw and Lexis Advance are excellent places to start identifying cases in which one or more parties produced documentation of foreign law, but they do not provide the complete universe of cases.
Besides cases, Westlaw also offers trial court documents that cite to FRCP Rule 44.1, specifically 2,791 trial court documents, further sub-divided in the categories of: pleadings (701); motions, memoranda and affidavits (2,020); transcripts (5); filings (30); depositions and discovery (2); verdicts and settlements (2); jury instructions (9); and expert materials (22). Again, these are a fantastic start to creating a reference source that extracts the foreign law and legal analysis filed in U.S. federal courts because they help identify case records citing FRCP Rule 44.1. Unfortunately, however, Westlaw does not yet provide comprehensive coverage of all documents filed in U.S. federal court, so the trial court documents provided only represent the tip-of-the-iceberg. More importantly, for our purposes, Westlaw does not provide the exhibits attached to any of the trial documents. As explained throughout this article, the exhibits are often the documents that provide the foreign law and legal analysis. Until Westlaw offers full access to PACER for all trial documents, including exhibits, its citing references will not accurately reflect all of the FRCP Rule 44.1-related documents submitted to our courts.
b. Digests
Both Westlaw and Lexis Advance offer digest services. Westlaw, of course, has a key number system and Lexis Advance has a breadcrumb trail. Both systems focus on grouping like cases together based on their headnotes and both systems provide alternative, but still incomplete, ways to identify cases involving issue(s) of foreign law. These systems identify cases beyond just those with orders or opinions that specifically cite to FRCP Rule 44.1, but they do not provide access to the case exhibits where the foreign law and legal analysis are found. Moreover, Westlaw and Lexis Advance do not provide headnotes for every order and opinion included in their case databases and, without headnotes, a case will not be captured by a digest search. Again, to reiterate upon a theme, Westlaw and Lexis Advance provide wonderful ways to begin creating a reference source that extracts and organizes foreign law because they help identify some cases that involve foreign law. But, efforts on Westlaw and Lexis Advance must be followed with docket research because only through full-text access to the docket will one find the foreign law and legal analysis submitted to our courts.
There are several key numbers on Westlaw that yield cases involving foreign law. For example, under the topic of Evidence (157), key number 37 yields 390 headnotes on judicial notice and the laws of foreign countriesFootnote 218 and key number 81 yields 241 headnotes on presumptions with regards to the laws of foreign countries.Footnote 219 There are also a handful of other topics and key numbers that help identify cases involving foreign law. For example, the topics and key numbers: action (13k17),Footnote 220 courts (106k9),Footnote 221 international law (221k10.8),Footnote 222 and trial (388k136(4))Footnote 223 also gather headnotes from cases that discuss foreign law in some way.
Similarly, Lexis Advance's breadcrumb trails assemble some cases that discuss foreign law beyond those orders and opinions that specifically cite to FRCP Rule 44.1. Under the topic of evidence, Lexis Advance compiles 704 headnotes on judicial notice and legislative facts regarding the laws of foreign states.Footnote 224 Also, under the topic of public contracts law, Lexis Advance shows twenty-two headnotes regarding contract interpretation and foreign law.Footnote 225
c. Key Word Searches
Lastly, and most obviously, Westlaw and Lexis Advance provide fantastic keyword search functions to cast an even wider net of cases involving foreign law. A keyword search involving FRCP Rule 44.1 will yield similar results to the citing references search performed above, but a keyword search of “foreign law” within the federal case databases of Westlaw and Lexis Advance gives 10,000 and 9,787 results, respectively. On the other hand, a keyword search of “law! of France” OR “French law!” within all federal cases yields 1,719 cases on Westlaw and 1,313 cases on Lexis Advance. To state the obvious, however, the keyword searches are only trawling the words used by federal judges in their orders and opinions (or in the limited court documents Westlaw provides academic subscribers), so these searches are not as inclusive as their numbers suggest even if they are a means of beginning to identify cases in federal court that involve foreign law.
B. A Prototype: The Organization Process
As explained above, the extraction process associated with creating a reference source that tracks foreign law and legal analysis filed in U.S. federal courts involves cobbling together several searches on Bloomberg Law, Westlaw, and Lexis Advance. These searches identify cases involving foreign law and also locate documents of foreign law and legal analysis filed in U.S. federal courts. Relatedly, the organization process begins simultaneously with the extraction process and asks: how should the information be organized to be of maximum assistance to future researchers? Without having a guaranteed answer to this question, the prototype attached as an appendix to this article offers one example of how to offer a finding aid of foreign law and legal analysis filed in our federal courts.Footnote 226
Litigants (and judges) working on a case involving foreign law will naturally turn to sources organized first by foreign sovereign. For this reason, the first column in the attached appendix holds the name of a foreign sovereign, in alphabetical listing A-Z. Next, the second column identifies the category of case, based on the taxonomy in Part II. The remaining fields provide: the name and docket information of a case (column 3); a case summary and the context in which foreign law was filed (column 4); and, finally, the particular document numbers within the case docket that host the foreign law and legal analysis (column 5). This final column includes the names of any experts construing foreign law as well as their CVs attached to their expert declarations. Of course, this column also includes the expert's actual analysis as well as any primary or secondary foreign legal sources relied upon by the expert (or counsel). Naturally, all of these documents are translated into English by party agents.
As an example, a litigant (or judge) in a contract interpretation case involving Afghan law would first find “Afghanistan” and then “choice of law.” After that, the litigant (or judge) would browse the case names and summaries to find relevant precedent. Once precedent was located, to find documentation on Afghan law and legal analysis (including expert testimony on Afghan law), the litigant (or judge) would use Bloomberg Law to find the document numbers within the case dockets that provide the Afghan law. To use the Rose v. Computer Sciences Corp. case in the attached appendix, which is a choice of law case involving Afghan law, docket document #82 provides defendant's motion for partial summary judgment. Attached to defendant's motion as exhibits is an expert declaration by Reema Ali as well as translated selections of the Civil Law of Afghanistan. Future researchers of Afghan law may find these documents useful for their own practice or scholarship.
The appendix attached to this article is only a first attempt at creating a prototype for a reference source that tracks the foreign law and legal analysis filed in U.S. federal courts. It is not the only way or the best way. Also, it analyzes only a random sample of cases found through the various searches in Bloomberg Law, Westlaw, and Lexis Advance, described above. One of the biggest challenges to creating the reference source (other than time and resources) would be to decide on the depth of detail to include in column 5. The goal is to provide enough information about the foreign law and legal analysis found in a docket document without listing every section of every piece of foreign legislation provided in an exhibit or cited in a pleading. But, the appendix is an offer to begin a conversation among law librarians in the academy to develop a more comprehensive source that tracks and organizes the foreign law filed in U.S. federal courts.
V. Conclusion
The purpose of this article is to raise awareness about the increasing amount of foreign law and legal analysis filed in our courts and to argue that some type of source should exist to track and organize it. Offering access to foreign law and legal analysis already filed in prior precedent would provide future researchers with a “jumping off” point to foreign legal research that supplements existing foreign legal research databases and, of course, print library holdings. Additionally, by performing a tacking service, litigants (and judges) would be able to identify foreign law experts and assess their work product. Moreover, a compilation of all the foreign law and legal analysis filed in our courts would lead to an accountability mechanism to improve the accurateness of party submissions and expert conclusions. Lastly, parties who cannot afford to hire experts and find and translate foreign law would have access to the foreign law and legal analysis already acquired by wealthy parties, promoting equal access to justice.
But, who or what is in the best position to create such a source? Ideally, the platforms that provide full-text access to federal court dockets (PACER, Bloomberg Law) would develop an algorithm to capture and catalog the foreign law and analysis that parties submit to the federal courts. Until that happens, however, academic librarians with full access to the federal dockets should take responsibility. Given the sheer number of cases considering foreign law in our federal dockets, however, one librarian cannot do it alone. A group should form to explore crowdsourcing strategies and/or grant funding options. The reference source could be a way for academic law librarians to support the research needs of firm and government law librarians as well as legal practitioners and scholars.
VI. Appendix
The following appendix is a prototype for a reference source that tracks the foreign law and legal analysis submitted to U.S. federal courts. It acts as a finding aid to the names and work product of experts in foreign law and to the English-language versions of primary and secondary foreign legal sources relied on by parties and their experts. The appendix focuses on a random sample of cases discovered through the various searches conducted on Bloomberg Law, Westlaw, and Lexis Advance, described in Part IV, above.
This appendix is a prototype for a reference source that tracks the foreign law and legal analysis submitted to U.S. federal courts.
