Not Everything Is as Easy as a French Press: The Dangerous Reasoning of the Seventh Circuit on Proof of Foreign Law and a Possible Solution
Hall, Frederick Gaston, Georgetown Journal of International Law
TABLE OF CONTENTS I. INTRODUCTION II. PROOF or FOREIGN LAW IN U.S. COURTS III. FEDERAL RULE OF CIVIL PROCEDURE 44.1 IV. RULE 44.1 IN PRACTICE: BODUM USA, INC. V. LA CAFETIERE, INC. AT THE DISTRICT COURT V. BODUM ON APPEAL A. Chief Judge Easterbrook's Opinion B. Circuit Judge Posner's Opinion C. Circuit Judge Wood's Opinion VI. BODUM CONSIDERED: WHO IS RIGHT? VII. CAN COMPARATIVE LAW GUIDE US? A. Common Approaches B. New Developments in Australia VIII. A MULTILATERAL FRAMEWORK A. Current Conventions B. The Hague Conference C. Would It Work in the United States? 1. Administrability 2. The Treaty Power 3. The Anti-Commandeering Doctrine 4. Case-or-Controversy Requirement 5. Politics IX. CONCLUSION
Imagine that you are a probate or surrogate court judge for an average American jurisdiction. Normally, you are confronted with validating and probating wills or providing for intestature. But today you are confronted with a rare, strange, and confusing case. A Swiss citizen had moved to the United States and become a U.S. citizen. He died in your jurisdiction with a valid will disposing of his property, including some land in Switzerland. One of the, man's heirs, however, protests to you that the disposition of the land violates Swiss law, but that disposition would be valid for land located in your jurisdiction. Your jurisdiction follows the Restatement of Conflict of Laws (at the time, the First Restatement) in cases involving a conflict of laws, according to which the domestic law of the place where the land is located controls. (1) In this case, that rule would mandate that the domestic law of Switzerland would apply. So you have to find a way to familiarize yourself with the law of Switzerland on disposing of land in wills. You could do this in a number of ways: you could use the materials the disgruntled heir provided to do your own research, you could ask the parties to present experts to testify about what Swiss law provides, or you could ask the Swiss Embassy and hope they tell you.
Except this case is more complicated than that. You are very knowledgeable about conflicts rules--or the executor of the dead man's estate is--and you know that there is an exception in the Restatement to the general rule on questions of land, which requires that when there is a question of title to land the court must look not just at the substantive law of the jurisdiction where the land is located, but at the conflicts of laws rules of that jurisdiction. (2) In effect, this rule requires you to figure out which law a Swiss court would apply to this very case. For this question, the same choices for solving the problem are available to you--doing your own research, having experts testify, or asking Switzerland--but this is now a much more difficult problem.
This was the problem faced by Surrogate Frankenthaler of the New York County Surrogate's Court in 1950 in In re Schneider's Estate. (3) In that case, the surrogate listened to expert witnesses from both the administratrix of the estate and the protesting heir. (4) Naturally, the experts disagreed about what the Swiss conflicts of laws rule was in the case of a dual citizen domiciled in another jurisdiction disposing of Swiss property in his will. (5) After "carefully examin[ing] the authorities and materials submitted by the experts," Surrogate Frankenthaler decided that Swiss conflicts rules would treat land owned by a dual citizen domiciled abroad as being located in the person's domicile. (6) Since the deceased was a dual citizen domiciled in New York, the surrogate concluded that Swiss conflicts rules would apply New York law, and so he validated the will. (7)
The rule the surrogate was forced to use--renvoi, or looking to the conflicts of laws rules of another jurisdiction--has been criticized by many commentators over the years. …