Foreign Law on the Ground

The Yale Journal of International Law recently published my article, Foreign Law on the Ground. This post gives a flavor of the article with an excerpt from the introduction (cleaned up). I will follow up with a second post reviewing findings about foreign law in state courts.

Traditionally, U.S. courts labeled foreign law as fact. In 1966, Federal Rule of Civil Procedure 44.1 declared that foreign law is law, though parties still prove foreign law by various means including expert testimony—almost as if it were a fact.

The descriptive contribution of this Article is a comprehensive account of the treatment of foreign law by U.S. courts, from its origins as a question of fact to its modern treatment as a question of law with fact-like procedures. This survey includes the most up-to-date review of how foreign law operates in federal courts and the courts of all fifty states. This Article shows how the formal treatment of foreign law as law versus fact has informed the procedures that courts apply to foreign-law questions.

Lurking behind the formal question of fact versus law is a separate functional question about the role of foreign law in U.S. courts. This functional question has eluded courts and scholars, perhaps because it sounds similar to the formal question of fact versus law. This Article’s core analytical contribution is to distinguish between when courts functionally treat foreign law as law and when courts look to foreign law to answer more fact-bound questions.

To give an example, when a federal court hears a tort claim arising under the law of Argentina, it looks at the law of Argentina as law. Same when a state court’s decision turns on the validity of a marriage arising under the laws of Italy. These questions ask about the law on the books.

But in many situations, courts consider (or should consider) how foreign law operates on the ground as an input in the resolution of some other legal questions. Consider the Supreme Court’s recent foray into Federal Rule 44.1, Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. A class of U.S. purchasers sued four Chinese companies under U.S. antitrust law for fixing the price of vitamin C. The Chinese companies defended the suit, in part, by arguing that they were protected by the foreign sovereign compulsion defense. This defense, in simple terms, provides that a defendant cannot be liable for a violation of U.S. law when the alleged conduct was compelled by a foreign government. Here, the Chinese firms argued that the price of vitamin C was set by Chinese law, and they offered in support a statement of the Chinese Ministry of Commerce confirming this interpretation of Chinese law. The Second Circuit held that federal courts are “bound to defer” to a foreign sovereign’s interpretation of their own law. The Supreme Court reversed, holding in an opinion by Justice Ginsburg that a foreign sovereign’s interpretation of its law should be given “respectful consideration” but not “conclusive effect.”

This Article suggests that the key question in Animal Science should not have been about Chinese law on the books. Instead, a party raising the defense of foreign sovereign compulsion should have to show that they were compelled by a foreign government—a question about law on the ground. To be sure, the meaning of foreign law is relevant to the question of whether the conduct was compelled, but it is far from dispositive. We know intuitively that in every legal system there are laws that are rarely if ever enforced, and that government officials at times exercise extralegal authority. Even if the defendants authoritatively established that a Chinese regulation said “charge X price,” that does not mean they were compelled to charge the price. Similarly, even if the plaintiffs could authoritatively show that there was no such law, that does not mean defendants were not compelled. Foreign sovereign compulsion, again, should be understood as a question about facts in the world.

The observation about the functional role of foreign law is not limited to this single case or this single doctrine. Many of the reasons U.S. courts look to foreign law fit this bill, including many doctrines that dominate the literature on transnational litigation. For example:

• Federal courts routinely invoke foreign law when evaluating whether a foreign jurisdiction provides an adequate “alternative forum” for purposes of a motion to dismiss for forum non conveniens. Adequacy might be a question about law (e.g., whether the foreign court would have subject matter jurisdiction), but it is often a question about facts (e.g., whether the foreign court is biased against parties or claims of this type).
• It is settled law that federal courts may order discovery in violation of foreign law, and that they should exercise their discretion to limit such orders if the party is likely to suffer severe sanctions in the foreign country. This inquiry would look to the content of foreign law, but also to how that law operates, to determine the likelihood and severity of sanctions.
• Following a leading decision by Judge Posner, many federal courts treat as a question of foreign law whether a foreign legal system comports with due process such that a foreign court judgment may be enforced in the United States. But inquiries into the “fundamental fairness” of foreign legal systems are about more than the law on the books.
• When defending against a breach of contract claim, a defendant might present foreign law to show the impossibility of performance, but whether performance is “impossible” is a question of fact.
• In asylum cases, courts look to foreign law to define “cognizable social groups” in need of protection, but the real question in these cases is about the perceptions of potential perpetrators of violence, not about legal categories.
• In the Samuel Bankman-Fried prosecution, English law on corporate disclosures was used to help determine if the defendant misled investors, but the ultimate resolution of that issue would turn on whether the investors were misled, which in turn might be informed by what English law requires.

These cases are not meant to suggest that foreign law itself is not law—again, the formal status of foreign law is a different matter. Instead, these cases show that foreign law plays different roles depending on the questions that courts pose to it. As a result, this Article does not call for changing the formal rules that govern foreign law, but instead it calls for clearer thinking about the functions of foreign law in court. This approach asks whether courts care about foreign law on the books versus foreign law on the ground. The answer to this functional question, then, has consequences for when and how courts assess proof of foreign law; it informs doctrinal debates in interjurisdictional interpretation and conflict of laws; and it may have something to say about the turn to historical laws in constitutional interpretation.

This Article begins in Part I with a history of the treatment of foreign law in U.S. courts. Along the way, it touches on cases about the Quasi-War between the United States and France, an alleged rebellion in Brazil, and more quotidian topics such as coffeemakers and vitamins. It also shows that the modern treatment of foreign law is bookended by Ruth Bader Ginsburg—first as a fresh law school graduate laying the groundwork for Federal Rule 44.1 at the Columbia Law School Project on International Procedure in the early 1960s, and then as the author of the Supreme Court’s opinion in Animal Science more than a half century later. Recognizing that foreign law plays an important role in state courts as well, this Part includes a comprehensive study of the treatment of foreign law in the states.

Part II then interrogates the functions of foreign law in U.S. courts. It first describes an older functional distinction between direct and collateral uses of foreign law. While these labels have some descriptive utility, they have obscured how foreign law functions in U.S. courts, and in the process, unnecessarily complicated some issues in conflict of laws. This Part attempts to clarify the lines. It shows that in many cases when existing doctrine directs U.S. courts to look to foreign law, the doctrine is interested in how that law operates—not foreign law on the books, but foreign law on the ground. Notably, these “law on the ground” cases implicate many of the most prominent doctrines for scholars and practitioners of transnational litigation, from judgment recognition to forum non conveniens to foreign sovereign compulsion.

Part III then considers the consequences of recognizing the functional distinction in foreign law. First and foremost, this distinction should serve as a reminder to courts that the label “foreign law as law” may be a distraction. Courts should attend to why foreign law appears in their cases. Second, recognizing the distinction between uses of foreign law has consequences for the work of courts. It may guide courts in identifying which sources are most helpful in determining the content of foreign law—again, depending on whether the court is thinking about law on the books or law on the ground. It also can help reduce judicial decision costs with little effect on accuracy. Where we limit the inquiry to foreign law on the books, the work of parties and courts can be more targeted, excluding extraneous information about legal practice. Meanwhile, requiring courts to investigate foreign legal practice might require parties and courts to do more work that does not rely on legal text alone. But even in those cases, sometimes burdens will be reduced—there may be situations where the dispositive question can be answered regardless of the content of foreign law, and in such cases, no foreign law inquiry may be required.

Third, this Article’s distinction will help clarify two doctrinal debates, one related to interjurisdictional interpretation and the other related to conflict of laws. On the former, this distinction informs debates on when and how a forum court should follow the interpretative methods of the law-providing court. On the latter, this analysis brings us back to debates beginning at least as early as the 1960s, and continuing in the most recent drafts of the Restatement, about what conflict of laws methods are most appropriate.

Finally, this Article concludes by connecting the treatment of foreign law to the treatment of historical law in U.S. courts. As judges seek to ascertain the content of historical law to inform modern determinations, the well-developed approach to foreign law may provide some guidance about how to undertake that task. Historical laws are laws in a formal sense, but functionally they are treated almost as if they are facts—just as foreign laws are today. At the same time, this Article’s theoretical discussion of the treatment of foreign law should give those historically minded judges pause, forcing them to ask the all-important question: why?