Federal Rule 44.1 and the "Fact" Approach to Determining Foreign Law: Death Knell for a Die-hard Doctrine
Miller, Arthur R.
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Abstract
The objective of this article is to analyze Federal Rule of Civil Procedure 44.1, which was developed as part of the reforms of the last decade and became effective on July 1, 1966 and to assess its capacity to rationalize the process of determining foreign law in the federal courts. What follows is an excursion through the past doctrine and into the probable future treatment of foreign law in the federal courts, an exploration of the interrelationship between the new Rule and other phases of federal civil procedure, and an analysis of the prospect that the Rule's effectiveness may be partially emasculated by supervening policies inherent in our federal system. Although the primary focus of this article will be on foreign law in the federal courts, the substantial identity between Federal Rule 44.1 and Article IV of the Uniform Interstate and International Procedure Act, coupled with the probability that states with a procedure patterned after the Federal Rules of Civil Procedure will adopt Rule 44.1 in the near future, renders the following discussion relevant to state practice as well.