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Foreign Law on the Ground
Clopton, Zachary D.
Clopton, Zachary D.
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Abstract
Since 1966, Federal Rule of Civil Procedure 44.1 has declared that foreign law is law. But this seemingly self-evident statement masks the more complicated treatment of foreign law in U.S courts. Historically, Anglo-American courts treated foreign law as fact. And today, U.S. courts apply procedures to foreign laws that mirror the treatment of facts, not laws.
Debates over the formal status of foreign law, though, are distinct from less appreciated questions about the functions of foreign law. Sometimes courts look to foreign law to answer questions about law; other times courts look to foreign law to answer questions about facts. For example, foreign law can provide a claim or defense in U.S. court, or it can inform the application of domestic law, such as whether a foreign marriage is valid. In these cases, courts care about foreign law on the books. But in other situations—such as when a court must decide if a party was compelled to violate U.S. law by a foreign government, or if a foreign legal system provides for full and fair adjudication—courts look to foreign law on the ground. This Article’s core theoretical contribution, then, is to identify this functional distinction that has eluded courts and commentators, and to show its consequences for the uses of foreign law in U.S. courts.
This Article surveys the long history of foreign law in federal and state courts, including a comprehensive review ofstate court practice. It then describes and distinguishes the uses of foreign law depending on the reason the court is looking to foreign law in the first place. This functional distinction is not only theoretically grounded, but it also maps onto the practice of courts—or it should. This Article demonstrates how the function of foreign law should guide courts about when to look to foreign law, what sources might be relevant, and when stare decisis attaches. This Article then links this inquiry to debates in conflict of laws and legal interpretation that can be simplified once this distinction is recognized, and it connects the treatment of foreign law to the “history and tradition” inquiry that the Supreme Court has endorsed for some constitutional rights.