“Three Influential Seventh Circuit Judges Debate the Usefulness of Expert Testimony to Prove Foreign Law”

How Appealing links to this Seventh Circuit decision, which includes very interesting opinions by Judges Easterbrook, Posner, and Wood (all among the most respected federal appellate judges in the nation, and all former University of Chicago law professors).

Here’s the issue: American courts sometimes have to decide questions of foreign law. In the overwhelming majority of such cases, this has nothing to do with the controversial use of foreign constitutional law as persuasive authority in making American constitutional law decisions. Instead, it involves courts interpreting contracts that provide that they are to be entered into under foreign law, interpreting contracts entered into in foreign countries, making decisions about torts committed in foreign countries, deciding whether parties married in a foreign country (often long before they came into the U.S.) complied with the marriage law of that country, deciding whether a foreign money judgment that is being enforced in the U.S. complies with the law of the foreign country, and so on. (This is an oversimplification; not all such cases always require the application of foreign law, but many do.)

This is quite common, and sure to get more so as the world gets still more commercially interconnected. And it’s practically inevitable, at least unless we choose to dramatically handicap our own citizens in transnational business transactions. (We could, for instance, have a rule that says that any lawsuits based on contracts that call for the application of foreign law must be filed in foreign countries, but that would often me extra time and expense for American litigants, and a gain of a home-field advantage for their litigation adversaries.)

The question is: How are courts to determine what foreign law is, especially when it’s in a foreign language? The Federal Rules of Civil Procedure allow courts to rely on statements by experts in foreign law. But Judges Easterbrook and Posner argue that, for the law of many prominent countries (such as the French law involved in this dispute), reliance on experts is bad practice — it’s better for judges to consult English-language translations and treatises, which will be largely relatively objective, rather than the statements of experts hired by each party:

Trying to establish foreign law through experts’ declarations not only is expensive (experts must be located and paid) but also adds an adversary’s spin, which the court then must discount. Published sources such as treatises do not have the slant that characterizes the warring declarations presented in this case. Because objective, English-language descriptions of French law are readily available, we prefer them to the parties’ declarations.

Judge Wood disagrees, arguing that judges are too likely err in interpreting foreign law, again especially when it is in a foreign language:

Exercises in comparative law are notoriously difficult, because the U.S. reader is likely to miss nuances in the foreign law, to fail to appreciate the way in which one branch of the other country’s law interacts with another, or to assume erroneously that the foreign law mirrors U.S. law when it does not.

This strikes me as a very interesting and important debate, though one on which I have no informed opinion (except to say that, unsurprisingly, both sides make very good points). Note that the debate generally focuses on the laws of major non-Anglosphere countries that have a roughly civil law (i.e., European continental law) legal background — France, Germany, Argentina, and the like. When the country is England, Canada, Australia, or New Zealand, I expect that most judges would tend to do their own research, both because there is no language barrier and because the legal systems of the countries are in many ways quite similar. When the country is, say, Congo or even Thailand, there is probably little English-language commentary on the country’s law, and reliance on experts would not be that controversial. I expect this would also be so as to, say, Saudi law; Saudi Arabia is economically quite significant, but its legal system is so different from ours in many ways that I suspect most judges would want to hear from experts (even party-supplied experts) on the subject. I don’t know what Easterbrook and Posner would say about Chinese law, which is also radically different from ours but is the subject of a good deal of written English-language commentary.

I also didn’t see anything in the opinion about the possibility of ostensibly neutral court-appointed experts; I know there’s a general debate on the utility of such experts, but I’d love to hear what others who are more acquainted with the issue — especially in the context of foreign law — can say about it.