The Use and Determination of Foreign Law in Civil Litigation in the United States
Bibliographic Data
| ID | 9532319 |
|---|---|
| Authors | Peter Hay (Technische Universität Dresden, corresponding author) |
| Year | 2014 |
| Volume | 62 |
| Issue | 1 |
| Pages | 213-240 |
| Publication date | 2014-07-01 |
| Open Access | No |
| Type | ARTICLE |
| Venue | The American Journal of Comparative Law (JOURNAL) |
| Journal identifiers | ISSN: 0002-919X • E-ISSN: 2326-9197 |
| Publisher | Oxford University Press (OUP) (PUBLISHER) |
| DOI | 10.5131/ajcl.2013.0023 |
| OpenAlex | W2326233655 |
| Language | EN |
| Citations received | 1 |
| References cited | 13 |
Conflicts law is mainly state law in the United States; there is no uniform rule or approach as to when foreign law applies. When foreign law is applicable, the determination of its content is a question of procedure, governed by each state’s procedural law and by a Federal Rule of Civil Procedure when the case is pending in a federal court. State procedural rules differ and even the uniform federal rule has received different interpretations in the Federal Circuits. The common-law heritage and structure of American law explain two aspects shared by all procedural rules for the determination of the content of foreign law: the court does not make the determination ex officio; instead, the parties must raise the issue that foreign law may be applicable and then assist the court in determining its content. Furthermore, the adversarial character of American litigation requires notice to the opponent, an opportunity to rebut, and perhaps even a limitation on the court to appoint experts or masters. The Article discusses the scope and application of the Federal Rule and the divergent approaches in state courts, as well as current attempts in some states to adopt legislation limiting or proscribing recourse to foreign law. An appendix provides references to all state statutes and to principal state decisions
Adversarial system · Choice of Law · Civil law (Civil law) · Common law · Conflict of laws · Federal law · Legislation · Notice · Political science · Precedent · Principal (computer security) · Public law · State (computer science) · Statute · Computer Science · Conflict of Laws and Jurisdiction · International Law and Aviation · Law · Law, logistics, and international trade
| Citations per year | 0.33 |
|---|---|
| Citation span | 2023 - 2023 (1) |
| Highly cited | No |