Foreign Law in US Courts

1. Foreign Law in US Courts What’s a guy gotta do?

2. When does foreign law rear its head? • Choice of law • Policy: foreign parties, expectations, location dictate use of foreign rules of decision • Contract: parties’ stipulation of foreign law • Statutory terms • Legislative incorporation of foreign law • Ex: “persecution” / “foreign income tax” • Blocking statutes • Foreign law prevents US discovery • Consider exceptions, process for seeking • Reciprocity • US rights/duties dependent on foreign recognition • Legislative or judicial policy

3. When does foreign law rear its head? • Choice of law • Policy: foreign parties, expectations, location dictate use of foreign rules of decision • Contract: parties’ stipulation of foreign law • Statutory terms • Legislative incorporation of foreign law • Ex: “persecution” / “foreign income tax” • Blocking statutes • Foreign law prevents US discovery • Consider exceptions, process for seeking • Reciprocity • US rights/duties dependent on foreign recognition • Legislative or judicial policy

4. When does foreign law rear its head? • Choice of law • Policy: foreign parties, expectations, location dictate use of foreign rules of decision • Contract: parties’ stipulation of foreign law • Statutory terms • Legislative incorporation of foreign law • Ex: “persecution” / “foreign income tax” • Blocking statutes • Foreign law prevents US discovery • Consider exceptions, process for seeking • Reciprocity • US rights/duties dependent on foreign recognition • Legislative or judicial policy

5. When does foreign law rear its head? • Choice of law • Policy: foreign parties, expectations, location dictate use of foreign rules of decision • Contract: parties’ stipulation of foreign law • Statutory terms • Legislative incorporation of foreign law • Ex: “persecution” / “foreign income tax” • Blocking statutes • Foreign law prevents US discovery • Consider exceptions, process for seeking • Reciprocity • US rights/duties dependent on foreign recognition • Legislative or judicial policy

6. Common law – foreign law as “fact” How should foreign law be handled? • Notice – pleadings or otherwise? • Presented – evidence or judicial notice? • Proof – effect of failure to present? • Decided – judge/jury? • Appellate review – fact or law?

7. Common law – foreign law as “fact” How should foreign law be handled? • Notice – pleadings or otherwise? • Presented – evidence or judicial notice? • Proof – effect of failure to present? • Decided – judge/jury? • Appellate review – fact or law?

8. Judge/jury – who decides? Fitzpatrick v. Intl R Co. (NY 1929) Plaintiff, a college student working during the summer as assistant conductor on a train running near Niagara Falls, is mutilated for life when he tried to keep the conductor from falling off the train as it moved beside a trackside pole.

9. Judge/jury – who decides? • What law applies in the case? • Trial court applies law of Ontario (place of the accident) • Court of Appeals affirms trial court • Who decides content of Ontario law? • Negligence per se: • Court instructs jury to resolve meaning of 1916 order of Railway Board on pole placement (Ontario barristers disagree on order’s retroactive effect) • Defendant fails to object to instruction • Contributory negligence: • Court instructs jury to determine whether Ontario has “law of rescue” (according to Ontario barrister, Ontario case law holds that emergency colors “reasonable man” standard) • Defendant fails to object to instruction

10. Judge/jury – who decides? • What law applies in the case? • Trial court applies law of Ontario (place of the accident) • Court of Appeals affirms trial court • Who decides content of Ontario law? • Negligence per se: • Court instructs jury to resolve meaning of 1916 order of Railway Board on pole placement (Ontario barristers disagree on order’s retroactive effect) • Defendant fails to object to instruction • Contributory negligence: • Court instructs jury to determine whether Ontario has “law of rescue” (according to Ontario barrister, Ontario case law holds that emergency colors “reasonable man” standard) • Defendant fails to object to instruction

11. Judge/jury – who decides? • What law applies in the case? • Trial court applies law of Ontario (place of the accident) • Court of Appeals affirms trial court • Who decides content of Ontario law? • Negligence per se: • Court instructs jury to resolve meaning of 1916 order of Railway Board on pole placement (Ontario barristers disagree on order’s retroactive effect) • Defendant fails to object to instruction • Contributory negligence: • Court instructs jury to determine whether Ontario has “law of rescue” (according to Ontario barrister, Ontario case law holds that emergency colors “reasonable man” standard) • Defendant fails to object to instruction

12. Common law Foreign law must be proved as “fact” Judge decides: When foreign law is undisputed When foreign law based on statutes or judicial opinions available to court Jury decides: When evidence on foreign law is “inconclusive” or “sharp conflict in oral testimony” (battle of experts) Jury determination not reviewable Wigmore (on Evidence): “The only sound view, either on principle or on policy, is that foreign law should be proved to the judge, who is decidedly the more appropriate person to determine it.” Judge/jury – who decides?

13. Apply to Fitzpatrick • Negligence per se: • “[Trial] judge should have told the jury the meaning and application of the order of the Railway and Municipal Board” • Trial judge should have decided whether 1916 order on pole placement was retroactive (despite disagreement of Ontario barristers) • Contributory negligence: • “[Trial judge] should also have given [law of rescue] to the jury … if there was no substantial dispute [as to Ontario case law]” • Trial court should have decided whether Ontario case law on “law of rescue” was the same as New York case law • Erroneous instructions • Not reviewable, since defendant failed to object specifically to judge/jury allocation and to propose alternative instruction

14. Apply to Fitzpatrick • Negligence per se: • “[Trial] judge should have told the jury the meaning and application of the order of the Railway and Municipal Board” • Trial judge should have decided whether 1916 order on pole placement was retroactive (despite disagreement of Ontario barristers) • Contributory negligence: • “[Trial judge] should also have given [law of rescue] to the jury … if there was no substantial dispute [as to Ontario case law]” • Trial court should have decided whether Ontario case law on “law of rescue” was the same as New York case law • Erroneous instructions • Not reviewable, since defendant failed to object specifically to judge/jury allocation and to propose alternative instruction

15. Apply to Fitzpatrick • Negligence per se: • “[Trial] judge should have told the jury the meaning and application of the order of the Railway and Municipal Board” • Trial judge should have decided whether 1916 order on pole placement was retroactive (despite disagreement of Ontario barristers) • Contributory negligence: • “[Trial judge] should also have given [law of rescue] to the jury … if there was no substantial dispute [as to Ontario case law]” • Trial court should have decided whether Ontario case law on “law of rescue” was the same as New York case law • Erroneous instructions • Not reviewable, since defendant failed to object specifically to judge/jury allocation and to propose alternative instruction

16. Questions • Consider common law “fact” rule: • Should we treat foreign law differently from domestic law? (Jenny-Y, Lucas-N) How decide? (Caitlin) • Is foreign law a matter on which experts can testify – under FRE? (Brett) • Does common law rule, leaving foreign law to jury, make sense? (Kate, Jenny, Lucas,Brett) • Has the equation changed? (Jenny-tech, Caitlin-Mansfield) NY S4511? (Caitlin) FRCP? (Kate)

17. Common law – foreign law as “fact” How should foreign law be handled? • Notice – pleadings or otherwise? • Presented – evidence or judicial notice? • Proof – effect of failure to present? • Decided – judge/jury? • Appellate review – fact or law?

18. Milwaukee Cheese Co. v. Olafsson (Wis. 1968) A US food wholesaler was having delivery problems with an agent for an Icelandic fishing company. When a Wisconsin bank ended up holding funds destined for the fishing company, the US wholesaler jumped in and sought to garnish the funds – claiming a secured interest in them. Meanwhile, an Icelandic bank (which had lent money to the fishing company) also claimed an interest in the funds. The question was whether an UNSIGNED security interest held by the Icelandic bank (a mortgage on the fishing company's catch) was valid. Under Wisconsin law, the answer is no; under Icelandic law, the answer is yes. Notice of foreign law

19. Notice of foreign law Holding: The Icelandic bank loses! It did not plead Icelandic law. Common law: “One relying on the law of a foreign state has to plead it and evidence as to the foreign law is not admissible if not pleaded.”

20. Notice of foreign law Wisconsin Uniform Judicial Notice of Foreign Law: Judicial notice of foreign laws. (1) Courts Take Notice. Every court of this state shall take judicial notice of the common law and statutes of every state, territory and other jurisdiction of the United States. * * *(4) Evidence Of Foreign Laws. Any party may also present to the trial court any admissible evidence of such laws, but, to enable a party to offer evidence of the law in another jurisdiction or to ask that judicial notice be taken thereof, reasonable notice shall be given to the adverse parties either in the pleadings or otherwise.(5) Foreign Country. The law of a jurisdiction other than those referred to in sub. (1) shall be an issue for the court, but shall not be subject to the foregoing provisions concerning judicial notice.

21. Questions • Consider who sees foreign element: • Is party/lawyer better able to recognize than judge? (Kate, Caitlin-Nussbaum) • When should judge take notice? Isn’t pleading req’ment xenophobic? (Lucas) • Consider what is foreign: • Is law of US territories foreign? How decide? (Jenny, Kate, Brett) • Must US judges (and lawyers) become familiar with history of civil law? (Brett)