Throwback Thursday: Federal Rule 44.1


Supreme Court” by Mark Fischer

is licensed under CC BY-SA 2.0

For this installment of Throwback Thursday, we are going back to the year 1966. In that year, the Supreme Court adopted important changes to the Federal Rules of Civil Procedure governing class actions, amendments that have garnered substantial commentary ever since. This post addresses a less-heralded change, the introduction of Federal Rule 44.1 governing foreign law in federal courts. The post will begin with a brief discussion of the pre-1966 practice and then turn to the Rule and its application.

The Pre-History

As Professor Arthur Miller wrote shortly after Federal Rule 44.1 was adopted, “Anglo-American courts and commentators historically have characterized a foreign-law issue as a question of fact to be pleaded and proved as a fact by the party whose cause of action or defense depends upon alien law.”

Or, to put it more briefly, foreign law as fact. The treatment of foreign law as fact was confirmed by the U.S. Supreme Court at least as early as 1801, in Talbot v. Seeman, a case that also laid out what became the Charming Betsy canon three years before the Charming Betsy case was decided.

Characterizing foreign law as fact had a number of important consequences for practice in English and American courts. Under this approach, foreign law must be pleaded, and potentially pleaded with particularity in so-called fact-pleading jurisdictions. As facts, foreign law must be proved with evidence, subject to any applicable rules of evidence. And when a trial court makes a determination of foreign law, that finding is subject to deferential appellate review as any other finding of fact would be.

The fact characterization also might have consequences for the judge-jury relationship. In common-law jurisdictions, facts are often considered the province of juries. And, indeed, some early English and American decisions treated foreign law as a jury question. But other decisions left the issue to the judge, though they still treated foreign law as fact for purposes of pleading and proof.

In any event, the next stage in the development of the law of foreign law began in the 1840s, when Connecticut and then Mississippi adopted statutes that permitted foreign law to be judicially noticed. Some other states followed suit, though many others retained the prior practice of pleading foreign law. Some states also relaxed other rules around foreign law pleading and proof.

In federal court, a major shift occurred in 1955 when the Second Circuit decided Siegelman v. Cunard White Star Ltd., in which the court permitted English law to be judicially noticed rather than proved. The decision was described as a “bombshell.” But one year later, the Second Circuit pulled back on Siegelman. In Walton v. Arabian American Oil Co., the court refused to allow Saudi Arabian law to be judicially noticed, distinguishing the two cases based on the relative similarity of the foreign legal systems to the United States. Note also that Siegelman was a decision that incorporated New York state practice in federal court. During this period, federal courts were divided on the role of state law on the foreign-law question.

The Federal Rules of Civil Procedure

In 1958, Congress established the Commission and Advisory Committee on International Rules of Judicial Procedure, which worked to improve the treatment of international cases in U.S. courts. Among other projects, the Commission collaborated with the Advisory Committee on Civil Rules on a revision to the Federal Rules of Civil Procedure.

The Rules Committee first considered addressing foreign law in Rule 9, including proposals such as: “When setting forth a claim or defense governed by the law of a foreign country or its political subdivision, the pleader shall identify the country or subdivision and state generally the substance of the foreign law.”

Ultimately the Rules Committee settled on creating a new Rule 44.1, which was adopted in 1966. Rule 44.1 today is substantially similar to version adopted in 1966. It reads:

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.

Many of the purposes and effects of the Rule are plain on its face. As a Federal Rule of Civil Procedure, it provides for uniform treatment of issues across federal courts and without reference to state law. The first sentence of the Rule deals with notice and fairness, providing notice without requiring the pleading of foreign law as was the case under the common-law approach. The second sentence permits the court to consider any material, not just admissible evidence, to determine the content of foreign law, and it permits the court to conduct its own research, so it is not at the mercy of party presentations. The third sentence characterizes foreign law as a question of law, which means that appellate consideration is de novo.

Volumes could be written on modern practice under Rule 44.1, but here I will comment on only two issues. First, on sources, courts have considered a wide range of materials to assist in the determination of foreign law. Expert declarations and testimony are common, but by no means required or universal. For example, in a particularly delightful set of opinions, Judges Easterbrook, Posner, and Wood debated different ways of ascertaining foreign law in Bodum USA, Inc. v. La Cafetiere, Inc.  (More thoughts on Bodum here.)

Second, in 2018, the Supreme Court elaborated on the relationship between Federal Rule 44.1 and submissions about foreign law from foreign governments. The Court held that “[a] federal court should accord respectful consideration to a foreign government’s submission, but is not bound to accord conclusive effect to the foreign government’s statements.” This holding was necessary to effectuate Federal Rule 44.1’s permission for judges to consider any relevant material or source.

The Future

Is there anything more to be said about Federal Rule 44.1? I hope so. In an extremely early-stage project, I ask whether debates about foreign law as law versus fact obscure a more basic question about the purpose of foreign law in a given proceeding. When foreign law forms the basis of a claim or defense, then its characterization as law seems entirely appropriate. But what if foreign law is being proffered to help the court determine whether a foreign government is likely to prosecute a defendant or whether a foreign court system comports with due process? In these cases, foreign law is operating more like fact—not because of something about the essence of foreign law, but because the court is asking a fact question for which foreign law may be relevant. As I said, this is an extremely early-stage, so comments (and examples!) are more than welcome.