How Do Federal Courts Determine Foreign Law?

Sarah Alsaden has recently published her research on how federal district judges are determining the content of foreign law. Under Federal Rule of Civil Procedure 44.1, a federal court’s determination of foreign law is a question of law (not of fact), and “[i]n 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 Supreme Court has addressed this Rule only once, in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. (2018), in which it held that federal courts are not bound to defer to a foreign government’s explanation of its laws, though they should accord such submissions “respectful consideration.”

Alsaden looked at 100 district court cases grappling with foreign law determinations after Animal Science Products. She found that judges most often rely on experts hired by the parties, but she documents other approaches as well. Based on interviews with circuit librarians, she also identifies four possible resources for aiding judges that could be further developed. These proposals are concrete and sensible; I was most intrigued by the possibility of making greater use of the Law Library of Congress.

The article is “Foreign Law in Federal Trial Courts: Analysis of Challenges and Guidelines for Remedy,” 41 B.U. Int’l L.J. 213 (2023). Here is the abstract:

Federal courts are required to apply the laws of foreign countries in a variety of different cases which range in complexity. The Supreme Court has urged federal courts to treat the determination of foreign law as similar to the determination of domestic state law. And yet, judges receive no specialized training in how to determine foreign law and the resources for conducting independent research on foreign law are not as extensive as those available for researching domestic law. In this article, I review the methods used by federal district courts to ascertain foreign law and determine that judges have largely not conducted independent research when resolving questions offoreign law. Instead, these courts have relied on partisan expert testimony. Although the failure to conduct independent research indicates that federal courts are not treating foreign and domestic law similarly, I argue that this not problematic because foreign law falls into a separate third category that requires courts to use procedure for both questions offact and law, including relying on expert testimony. The reliance on expert testimony carries the potential for bias since such experts serve as part of a party’s case team. I suggest four overlooked resources-similar to those adopted by other countries-thatju dges can implement to reduce the effects of such bias by making the process for engaging with the foreign legal issues easier and more efficient.