NOTES

PROOF OF THE LAW OF FOREIGN COUNTRIES: APPELLATE

REVIEW AND SUBSEQUENT LITIGATION
The law of foreign countries has been applied in common-law juris-
dictions for only about 200 years.^ Despite the acceptance of the idea
that it is not inconsistent with the concept of sovereignty to look to the
laws of another country to decide a case,* almost all courts have never-
theless regarded foreign law as a fact and have required the litigants
to plead and prove the content of that law in a manner similar to the
proof of evidentiary facts.^ Largely through statutory reform in the
United States, proof of the law of sister states is now treated in most
respects the same as the law of the forum,* but such treatment has
generally not been extended to the laws of foreign countries.^
The basic objective underlying the application of the law of another
jurisdiction is to achieve a uniform result regardless of where suit
is brought.* The interest in the achievement of this objective must be
weighed against the difficulty of ascertaining the law and against the
forum's legitimate interest in the application of its own procedure^
These interests must be accommodated initially at the trial-court level.
The parties have been required to present proof of foreign countries' law,
usually through the testimony of expert witnesses, with little or no in-
dependent investigation by the court.* The consequences of the trial
court's determination may differ from those of a determination of the
forum's law in a number of respects. The appellate court may be
^ See Sack, Conflicts of Laws in the History of the English Law, 3 LAW: A
CENTURY o r PROGRESS 1835-1935, at 342, 398 (1937).
" See STORY, CONFLICT OF LAWS § 23 (8th ed. 1883).
^ See generally SCHLESINGER, COMPARATIVE LAW 32-140 (1950); Sommerich &
Busch, The Expert Witness and the Proof of Foreign Law, 38 CORNELL L . Q . 125
(1953); Nussbaum, The Problem of Proving Foreign Law, 50 YALE L . J . 1018
(1941).
The statement that foreign law is a fact may in some situations be an accurate
description of its treatment but cannot be relied on to ascertain in all situations
the consequences of its application.
•* £.g.. UNIFORM JUDICIAL NOTICE OF FOREIGN LAW ACT ; N.Y. Civ. PRAC. ACT
§ 344-a; cf. Saloshin v. Houle, 85 N.H. 126, 155 Atl. 47 (1931).
° See note 3 supra. The only provision of the uniform act concerning the law
of foreign countries is the requirement that the judge rather than the jury decide
the content of that law. UNIFORM JUDICIAL NOTICE OF FOREIGN L A W ACT § 5.
This provision has been enacted in 26 states.
® Goodrich, Public Policy in the Law of Conflicts, 36 W. VA. L.Q. 156, 169
(1930); cf. Rheinstein, The Place of Wrong: A Study in the Method of Case Law,
19 TuL. L. REV. 4, 17-25 (1944).
' See Cook, "Substance" and "Procedure" in the Conflict of Laws, 42 YALE
L J - 333. 344 (i933)-
Among the American theories of the conflict of laws, the vested-rights theory
seems to value the goal of uniformity of outcome, as opposed to the parochial
interests of the forum, more highly than does either the comity theory or the local-
law theory. See Cheatham, American Theories of Conflict of Laws: Their Role and
Utility, 58 HARV. L . REV. 361 (1945).
^ See note 3 supra.

318
1958] PROOF OF FOREIGN LAW 319

reluctant to consider authorities not considered below in ascertaining

the foreign law or to substitute its own determination for that of the
trial court. Furthermore, a final decision on the content of foreign law
may not be regarded as a binding precedent in future litigation, although
it may be determinative in a subsequent suit between the same parties.
This Note will consider the effect of a determination of foreign law^
upon appellate-court proceedings and upon subsequent litigation.

I. FOREIGN LAW ON APPEAL

A. Authorities Not Considered Below

In the determination of the law of the forum, the role of the appellate
court is maximized not only by a de novo review of the trial court's
determination, but also by a consideration on appeal of additional
authorities, whether presented by the parties or discovered by the court.
Because the skill and familiarity of judges with matters of law has been
considered lacking in cases involving foreign law, the role of the appel-
late court in such cases has been more narrowly defined.^" Its power
to take judicial notice of legal authorities has been restricted, apparently
on the ground that any independent research would add little to the
presentation of the parties and would be apt to increase the risk that
the judges might be misled by incomplete or unreliable sources and by
unfamiliar subtleties.^^ The consequent reliance on testimonial proof,^^
a device not well suited to appellate procedure, has made appellate
courts unwilling to consider any authorities not presented below.^'
Two factors indicate that a more liberal acceptance of new authorities
on appeal might be advantageous. First, the desirability of reaching
the same result as would be reached by a court in the country whose
law is being applied makes it advantageous that the forum consider
any source which reasonably tends to elucidate the content of the foreign
law. Second, despite unique difficulties, issues of foreign law often
require for their understanding the very type of skill and experience

* The term "foreign law" will be used throughout to denote the law of foreign
countries as opposed to that of sister states.
' ° See Stern, Foreign Law in the Courts: Judicial Notice and Proof, 45 CALIF.
L. REV. 23, 27-28 (1957). But see Petrogradsky Mejdunarodny Kommerchesky
Bank v. National City Bank, 253 N.V. 23, 34-35, 170 N.E. 479, 483 (1930)
(Cardozo, C. J . ) :
True, of course, it is that there is no judicial notice of the law of foreign lands.
This does not mean, however, that the mere opinion of a witness will control
the judgment of a judge except to the extent that it is a reasonable inference
from statute or from precedent or from the implications of a legal concept . . . .
This is as true upon appeal as it is upon a trial.
" See Stern, supra note 10, at 39-47; Sommerich & Busch, supra note 3, at 154;
cf. Arams v. Arams, 182 Misc. 328, 45 N.Y.S.2d 251 (Sup. Ct. 1943).
'° See Nussbaum, supra note 3, at 1023—26.
'^ See Busch, When Law Is Fact, 24 FORDHAM L . REV. 646, 653-57 (i9S6).
In cases involving the law of sister states prior to statutory reform, see note 4
supra, despite the absence of many problems involved in proof of the law of for-
eign countries, courts nevertheless refused to consider authorities not presented
below. See, e.g., Watkins v. Watkins, 160 Tenn. i, 22 S.W.2d.i (1929).
320 HARVARD LAW REVIEW [Vol. 72

common to appellate courts.^* Courts seem to have been influenced by

these considerations in several types of cases, in which they have taken
judicial notice of foreign law freely, often without argument by the
parties. They have regarded the law of a territory of the United States
or of a foreign land subsequently annexed as domestic law.-"* Further,
appellate courts have taken judicial notice of additional authorities
consistent with the lower-court determination in order to strengthen
that decision.^* Although judicial notice of foreign law in the latter
situation is not determinative of the outcome of a case, it indicates some
degree of confidence in the court's ability to discover and reason from
foreign sources. Similarly, courts have often supported their own reason-
ing in domestic-law cases by reference to foreign decisions, usually " but
not always ^® from common-law jurisdictions.
When the applicable law is that of a common-law jurisdiction, the
difficulties of ascertaining its contents may be slight.^® Moreover, courts
in an area adjacent to a foreign country may be generally familiar with
the law of that country.^" In both such cases it would be particularly
desirable for trial and appellate courts to have discretion to take judicial
notice, on their own motion or the motion of the parties, at least of de-
cisions of courts of general jurisdiction and statutes of national applica-
tion.^i The consequent freedom of judicial inquiry in appropriate cases
seems to outweigh the possibility that a court might improperly exercise
its discretion or might fail to recognize subtle differences in the law.
The presentation of additional authorities is more likely to be com-
patible with appellate procedure if in a form which does not involve
the use of testimonial evidence.^? However, the introduction of affi-
davits, depositions, statutory compilations, reports, and secondary mate-
rials may be open to the objections that they deprive the opposing party
of the opportunity to cross-examine and pose problems of verification
which may be insurmountable. The value of cross-examination is
doubtful, since the demeanor of expert witnesses is generally insignifi-
cant,^^ and since the opportunity to rebut may be sufficient to develop
the implications of legal as opposed to evidentiary issues.^* If a trial

'* See Wood & Selick, Inc. v. Compagnie Generale Transatlantique, 43 F.2d 941
(2d Cir. 1930) (applicability of French statute of limitations); Nussbaum, supra
note 3, at 1033.
"E.g., Municipality of Ponce v. Roman Catholic Apostolic Church, 210 U.S.
296, 309 (1908) (Spanish law of Puerto Rico).
^^E.g., Tarbell v. Grand Trunk Ry., 96 Vt. 170, 118 Atl. 484 (1922).
"E.g., Barrow S.S. Co. v. Kane, 170 U.S. 100, 109 (1898).
'*£.g., National City Bank v. Republic of China, 348 U.S. 356, 363 (19SS).
^° Compare Siegelman v. Cunard White Star Ltd., 221 F.2d 189 (2d Cir. 19SS)
(Great Britain), with Walton v. Arabian American Oil Co., 233 F.2d 541 (2d Cir.
1956) (Saudi Arabia).
'"See In the Matter of McDougald, 272 App. Div. 176, 70 N.Y.S.2d 200 (1947)
(judicial notice of the law of Quebec taken by court in northern New York).
"^ See ScHLESiNGER, op. cit. supra note 3, at 126 & n.i. But see MASS. GEN. LAWS
ch. 233, § 70 (1932).
"^ See, e.g., Rodrigues v. Rodrigues, 286 Mass. 77, 190 N.E. 20 (1934).
'^ See p. 323 infra.
'"See Wyzanski, A Trial Judge's Freedom and Responsibility, 65 HAKV. L .
REV. 1281, 1296 (1952).
1958] PROOF OF FOREIGN LAW 321

court is permitted on these or other grounds to rely on documentary

evidence, no reason appears why it would be improper for the appellate
court to do so. Even if cross-examination is considered desirable in the
trial court, it should not be objectionable to allow the introduction of
some documents on appeal if adequate opportunity for cross-examina-
tion in regard to testimonial evidence was afforded in the court below.
If the introduction of documentary evidence in the appellate court
is allowed, strict application of the rules of evidence might be relaxed
in appropriate cases. Documents should be considered prima facie
authentic and reliable,^^ subject to impeachment by a party or the
court,^® unless the materials involve matters so obscure or so peculiarly
within the knowledge of the party introducing them as to make it unfair
to place the burden of impeachment on another.^'' If the appellate
court takes judicial notice of such authorities on its own motion, it
should be required to disclose to the parties the sources relied upon and
the conclusions reached, and to afford opportunity for challenge.
The willingness of an appellate court to consider authorities not con-
sidered below should depend also on the burden to the court and the
degree of unfair surprise to the parties which would result. When a
party submits authority relevant to a point of foreign law argued below,
the opposing party should be given an opportunity to demonstrate that
prejudice would result from its consideration. If the authority could
not have been discovered with due diligence before appeal, there seems
to be no reason not to accept it if presented appropriately.^* If, however,
the issue of foreign law was not properly raised below, authorities
supporting it should generally not be admissible; ^^ courts should be at
least as strict as they are in similar situations involving domestic law.*"
The appellate court should have discretion, in any event, to remand

*' See N.Y. Civ. PRAC. ACT. § 391; cf. Stern, supra note 10, at 32.
°° See Wyzanski, supra note 24, at 1295-96. See generally Morgan, Judicial
Notice, 57 HARV. L . REV. 269, 285 (1944).
" Such a rule would encompass affidavits by expert vi'itnesses as well as in-
accessible authorities.
"^ See Pilgrim v. MacGibbon, 313 Mass. 290, 47 N.E.2d 299 (1943) (Nova Scotia
case decided while appeal pending); cf. Los Angeles Inv. Sec. Corp. v. Joslyn, 12
N.Y.S.2d 370 (Sup. Ct.), rev'd mem., 258 App. Div. 762, 14 N.Y.S.2d 798 (1939),
appeal dismissed, 282 N.Y. 438, 26 N.E.2d 968 (1940).
'^ See Busch, When Law Is Fact, 24 FORDHAM L . REV. 646, 652 (1956), criticiz-
ing Siegelman v. Cunard White Star Ltd., 221 F.2d 189 (2d Cir. 1955), a case in
which both the district court and the court of appeals independently ascertained the
content of English law, which was neither pleaded nor proved.
When foreign law is neither pleaded nor proved at trial, appellate courts usually
refuse to consider it, but instead dismiss the claim, Cuba R.R. v. Crosby, 222 U.S.
473 (1912); presume the foreign law to be the same as that of the forum, especially
if the forum's law is not statutory and the foreign law is that of a common-law
country, Hammond, Snyder & Co. v. American Express Co., 107 Md. 295, 68 Atl.
496 (1908); or hold the parties have acquiesced in the application of the forum's law,
Leary v. Gledhill, 8 N.J. 260, 84 A.2d 725 (1951). See generally Parrot v. Mexican
Cent. Ry., 207 Mass. 184, 93 N.E. 590 (1911); Nussbaum, The Problem of Proving
Foreign Law, 50 YALE L . J . 1018, 1035-44 (1941); Von Moschzisker, Presumptions
as to Foreign Law, 11 MINN. L . REV. I (1926).
^°See Note, 64 HARV. L . REV. 652 (1951).
32 2 HARVARD LAW REVIEW [Vol. 72

any case in which it believes a more efficient disposition can be made by

consideration of the additional authorities in the trial

B. Scope of Appellate Review

Trial-court determinations of the law of the forum are subject to
de novo review by an appellate court for several reasons. First, a
thorough reconsideration by a collegial court of experienced judges can
contribute substantially to the analysis of legal materials and formulation
of rules of law.^^ Reconsideration is feasible partly because fewer
questions of law are disputed than questions of evidentiary fact.^*
Second, determinations of law give rise to rules of general applicability.**
Broad review of trial-court determinations of foreign law similarly might
be justified by the first reason, and, if the courts give stare decisis effect
to such determinations,^^ by the second. However, the trial court's
special competence in weighing conflicting testimony and observing
the demeanor of expert witnesses,^^ and the assumption that the deter-
mination would be of concern only to the immediate litigants,^^ have led
courts to restrict their scope of review, despite the fact that a judge
rather than a jury had made the finding.*^ Nevertheless, in some situ-
ations, a broader scope of review has been exercised. When the appellate
court is authorized to take judicial notice of new sources, a broader
scope of review naturally follows.^" Further, when all proof of the foreign
law is in the form of documents, their interpretation has been regarded

^' See Usatorre v. The Victoria, 172 F.2d 434 (2d Cir. 1949); Sonnesen v.
Panama Transp. Co., 298 N.Y. 262, 82 N.E.2d 569 (1948). But cj. Nussbaum,
Proving the Law oj Foreign Countries, 3 AM. J. COMP. L . 60 (19S4).
^^Cj. LANDIS, THE ADMINISTRATIVE PROCESS 152 (1938).
^^ See CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 129 (1921).
^* See Brown, Fact and Law in Judicial Review, 56 HARV. L . REV. 899, 90S
(1943)-
^° See pp. 324-26 infra.
^" Cf. Stern, supra note 10, at 44.
^'C/. Note, 61 HARV. L. REV. 1434, 1440-41 (1948).
^* See, e.g., Remington-Rand, Inc. v. Society Internationale Pour Participations
Industrielles et Commerciales S.A., 188 F.2d ioii (D.C. Cir. 1951) (whether trial-
court decision was "clearly erroneous"); Estate of Schluttig, 36 Cal. 2d 416, 424, 224
P.2d 69s, 700 (1950) (whether there was "substantial evidence" to support the
trial judge's decision). In cases involving the law of sister states even before the
passage of statutes authorizing a broad scope of review, see note 4 supra, appellate
courts did not feel confined by the trial judge's construction of statutes and cases.
See, e.g., Cobb v. Griffith & Adams Sand, Gravel & Transp. Co., 87 Mo. 90 (1885).
Although it is now generally agreed that the judge and not the jury should de-
cide the content of foreign law, see, e.g., Sloovire, The Functions of Judge and Jury
in the Interpretation of Statutes, 46 HARV. L . REV. 1086, 1104-06 (1933), it is ar-
guable that since foreign law was decided by a jury at common law, see Mostyn v.
Fabrigas, i Cowp. 161, 174, 98 Eng. Rep. 1021, 1028 (K.B. 1774), a federal court
is bound by the seventh amendment to give the question to the jury and exercise a
narrow scope of review. See SCHLESINGER, COMPARATIVE LAW 42-43 (1950); Note,
18 ST. JOHN'S L . REV. 73, 75 (1943). Such a result, however, does not seem re-
quired by the purpose of the amendment. Cj. Jongebloed v. Erie R.R., 297 N.Y.
534, 74 N.E.2d 470 (1947). cert, denied, 333 U.S. 85s (1948).
^* See, e.g., N.Y. Civ. PRAC. ACT § 344-a. In order to make the consideration
of additional authorities meaningful, it is necessary to re-evaluate those already
before the court.
19S8] PROOF OF FOREIGN LAW 323

as a task for which the appellate court is at least as well qualified as

the trial court.*"
A more extensive exercise of broad review powers would be desirable,
even if determinations are not given stare decisis effect. Demeanor of
an expert witness is usually less significant than the inherent persuasive-
ness of his presentation and may be misleading, since the creation of a
bad impression, especially on cross-examination, is often due to un-
familiarity with the English language and with domestic legal concepts.'*^
The policy that a determination of foreign law be consistent not only
with other determinations in the same jurisdiction but also with those
of the courts of the foreign country whose law is involved *^ can better
be served if an appellate court is free to exercise its own judgment.
A federal court in a diversity case should not be bound to follow the
appellate procedure of the state in which it is sitting whether the state
procedure is more or less restrictive than its own. For example, it should
be free to review de novo a trial-court determination of foreign law even
though the state court would have exercised a more limited scope of
review. The likelihood that on a given state of facts a system which
allocates greater responsibility for decision-making to an appellate
court will come to a different result from one which vests that responsi-
bility primarily in a trial court is too speculative *^ to constitute the
"substantially different result" required by Guaranty Trust Co. v.
York.** Similarly, to the extent that a state-court requirement that all
proof of foreign law be presented to the trial court can be met by a liti-
gant without substantial inconvenience, it is not likely that the accept-
ance of additional authorities by a federal appellate court will lead to a
different result.*'' In any event, the possibility that the federal court
might come to a different result by following an appellate procedure
different from that of the state court seems outweighed by the policy

*° See Masocco v. Schaaf, 234 App. Div. 181, 254 N.Y. Supp. 439 (1931); Mol-
son's Bank v. Boardman, 47 Hun 135, 142 (N.Y. App. Div. 1888); cf. j MOORE,
FEDERAL PRACTICE H 5204 (2d ed. 1951).
*^ See Nussbaum, The Problem of Proving Foreign Law, 50 YALE L . J . 1018,
1028-29 (1941); cf. In the Matter of Krachler, 199 Ore. 448, 495, 263 P.2d 769,
790 (19S3).
" Cf. Nussbaum, Proof of Foreign Law in New York: A Proposed Amendment,
S7 CoLUM. L. REV. 348 (1957); Moses, International Legal Practice, 4 FORDHAM
L. REV. 244 (1935).
" Cf. Byrd v Blue Ridge Rural Elec. Coop., 356 U.S. 525, 539-40 (1958)
(alternative holding), The Supreme Court, igsy Term, 72 HARV. L. REV. 77, 147-
50. The Supreme Court held that a federal jury in a diversity case may determine
whether a party is an employee within the meaning of the state workmen's com-
pensation act, despite the state practice of submitting the question to the judge,
since there is little likelihood of a "substantially different result." But cf. Bernhardt
V. Polygraphic Co. of America, 350 U.S. 198 (1956). See also HART & WECHSLER,
THE FEDERAL COURTS AND THE FEDERAL SYSTEM 634, 678 (1953); Stern, Review of
Findings of Administrators, Judges and Juries: A Comparative Analysis, 58 HARV.
L. REV. 70, 112-14 (1944).
"326 U.S. 99, 109 (1945).
•" See Developments in the Law — Multiparty Litigation in the Federal Courts,
71 HARV. L. REV. 874, 996, 997 (1958). In some cases it may have been impossible
for a party in a federal court to have adjusted to the state practice by presenting
all authorities in the lower court, for example, if a relevant case is decided in the
foreign country after the lower court has reached its decision. See note 28 supra.
324 HARVARD LAW REVIEW [Vol. 72

against allowing state laws to "disrupt or alter the essential character

or function of a federal court." **

II. BINDING EFFECT IN SUBSEQUENT LITIGATION

A. Litigation Between Different Parties

Decisions determining the content of foreign law are generally ac-
corded no weight in subsequent litigation involving different parties.'*^
Such a rule may be justified on at least two grounds. First, since the
difficulties of ascertaining foreign law and the limited judicial consider-
ation given thereto create a substantial risk of an erroneous determina-
tion/* it may be undesirable to adopt a determination of foreign law
as a general rule which will affect the conduct of other parties. Second,
it is arguable that a litigant is entitled to have his rights determined
by direct reference to the applicable law *® and not by reference to an
elaboration of that law by the forum upon the basis of its own prior
decisions. On the other hand, to require direct proof of a point of foreign
law in each case in which it arises involves duplication of effort. More-
over, it may be more convenient for parties to look to domestic pro-
nouncements of foreign law rather than to the foreign sources them-
selves, especially in cases in which a suit would most likely be brought
outside the country whose law applies.^"
When a determination of foreign law directly affects the application
of domestic law, it is particularly important that persons be afforded
an accessible statement of the foreign law and that the courts be relieved
of the necessity of making an independent determination of its content
in each case. In such situations courts have on occasion relied on prior
holdings of foreign law without recognizing any difficulties. For example,
in Mary Duke Biddle,'^^ the Board of Tax Appeals followed a prior
decision of the Ninth Circuit ^^ which had determined that a British
tax paid by a British corporation on income derived from sources within
the United States was, under British law, a tax on the corporation rather
*^ See Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 523, 539 (1958) (alterna-
tive holding); cj. Morgan, Rules of Evidence — Substantive or Procedural?, 10
VAND. L . REV. 467, 468 (1957).
•" See Nussbaum, The Problem of Proving Foreign Law, 50 YALE L . J . 1018,
1034—3S (1941). But a court seems free to take judicial notice of its earlier state-
ments. Id. at 1035.
••^See Nelson v. Bridport, 8 Beavan 527, S34-46) So Eng. Rep. 207, 210-14
(Ch. 1845); Stern, Foreign Law in the Courts: Judicial Notice and Proof, 45
CALIF. L . REV. 23, 40 (1957).
•" See Cheatham, American Theories of Conflict of Laws: Their Role and
Utility, 58 HARV. L . REV. 361, 365 (1945).
°°See, e.g., Matter of People (Russian Reinsurance Co.), 235 N.Y. 415, 175
N.E. 118 (1931). These considerations do not apply in the case of the law of sister
states so that there would be little if any benefit from establishing precedents as
to the content of that law. Moreover, reliance by a forum on its own precedents
rather than directly on the governing law is probably unconstitutional under the
full faith and credit clause. See Cheatham, Federal Control of Conflict of Laws, 6
VAND. L . REV. 581, 604-06 (1953).
" 3 3 B.T.A. 127 (193s), afd, 86 F.2d 718 (2d Cir. 1936), aff'd, 302 U.S. S73
(1937).
'= Welch V. St. Helens Petroleum Co., 78 F.2d 631 (9th Cir. 1935).
I9S8] PROOF OF FOREIGN LAW 325

than on its stockholders, and held that the taxpayer was therefore not
entitled to a deduction or credit of the amount of such tax withheld by
the corporation in calculating her federal income tax.^' Courts have
also followed prior decisions when the connection between foreign and
domestic law was less direct. In Matter of People (Russian Reinsurance
Co.),^* the New York Court of Appeals, in holding that the directors
of certain Russian corporations, resident in New York, could take charge
of the surplus remaining after suits by creditors, followed an earlier
decision ^^ which had held that under the applicable Russian law, the
corporations had not been dissolved.
The persuasiveness of prior decisions should vary with the degree of
independent participation by the appellate court in the determination.
A court need not determine the degree of appellate-court participation
in each prior case, especially when the opinion is silent or ambiguous on
the point, but may infer from the state practice the likely degree of
participation in given classes of cases.^" In cases arising under the law
of the forum, the merits of a rule different from that established by
the prior decisions must be weighed against the persuasiveness of the
prior decisions and the potential disappointment of legitimate reliance
on those decisions.^^ However, in cases arising under foreign law, the
persuasiveness of the prior decisions must be weighed not against the
court's notion of what rule is desirable, but against the objective fact of
what the foreign authorities have declared the rule to be.®^ Further-
more, reliance on a court's statements of the content of foreign law is
less justified than reliance on its statements of its own law, since the
former do not purport to be the authoritative expression of the law.
It seems that the degree to which reliance is justifiable will depend
upon the burden to the parties of making an independent ascertainment
of the foreign law.
Provided prior decisions are considered persuasive enough to consti-
tute a presumptively correct statement of the applicable law, a litigant
attempting to prove that the prior decisions do not correctly reflect the
content of that law should be required to make a showing persuasive
enough to overcome any legitimate reliance on the forum's statement
of the rule and to outweigh the forum's interest in not being unreason-
ably imposed upon to reconsider the correctness of its rule.^* If an argu-
ment urging rejection of prior cases is based upon the contention that
those cases erroneously ascertained the law's content, reliance on the

'"Revenue Act of 1928, ch. 852, | § 23(0), I 3 i ( a ) , (b), 45 Stat. 799, 829.
" 25s N.Y. 415, 175 N.E. 118 (1931).
''° Petrogradsky Mejdunarodny Kommerchesky Bank v. National City Bank,
253 N.Y. 23, 170 N.E. 479 (1930).
'"' Cf. M D . ANN. CODE art. 35, § 47 (1957).
"^ See HART & SACKS, T H E LEGAL PROCESS 611-13 (tent. ed. 1957).
^^ Cf. Note, 59 HARV. L . REV. 1299 (1946). It seems that a domestic court, in
seeking to achieve the same result as a court of the foreign country whose law is
being applied, must presume that the foreign court, even though it purports not
to give stare decisis effect to its prior decisions, would have followed them. Cf.
Usatorre v. The Victoria, 172 F.2d 434, 439 (2d Cir. 1949); Ancel, Case Law in
France, 16 J. COMP. LEG. & INT'L L . (3d ser.) i, 16-17 (1934).
° ' See HART & SACKS, op. cit. supra note 57, at 612-13.
326 HARVARD LAW REVIEW [Vol. 72

prior decisions may be entitled to considerable respect, especially when

the interpretation of the law is debatable or authorities are relatively
inaccessible. A showing that the statutory or decisional authorities on
which the court relied in its previous decisions have been affected by
repeal, amendment, overruling, or otherwise ^'^ destroys the presumption
that the prior decisions correctly reflect the present state of the foreign
law. An independent determination of the content of the applicable
law thus does not involve impeachment of the prior determination.
If a change is made subsequent to the transaction in question, retro-
active in effect, the reliance of parties on prior decisions, although jus-
tifiable, is a consideration to be weighed solely by the body initiating
the change.^' If a change occurs prior to the transaction in question,
reliance is even less justifiable than had the prior determination been
erroneous, since it is generally easier to discover the existence of a change
than the error of a court.
If the courts of a state accord significant stare decisis effect to their
decisions on the content of foreign law, a federal court might be re-
quired to follow these decisions to the same extent,®^ since to make an
independent determination of that law would create the likelihood of a
substantially different result. On the other hand, to the extent that
the state may have a lesser interest in the application of foreign law
than in the application of its own substantive or conflict-of-laws rules,
the obligation to follow state precedents may be correspondingly di-
minished. Moreover, although a federal court in a diversity case can
have no interest in the application of any rule of substantive common
law other than that declared by the state,^^ it does have an interest in
seeking a correct application of a foreign law, conceded to control the
case,'* which must be balanced against the interest in federal-state uni-
formity.

B. Litigation Between the Same Parties

There appears to be no reason why the doctrine of res judicata, which
forecloses relitigation of a cause of action by the same parties and has
no effect on other parties or other causes of action,*' should not be
applicable in cases arising under foreign, law as well as in those arising
under domestic law. The application of the doctrine of collateral es-
toppel, however, which forecloses relitigation, in a subsequent suit
between the same parties on a different cause of action, of certain
matters litigated and determined in the prior action,*' may depend upon
whether the cases arise under domestic or foreign law. In cases arising
under domestic law, collateral-estoppel effect is generally given only to
®° The law should be presumed not to have changed until shown otherwise. See
Cobb V. United States, 191 F.2d 604, 609 (9th Cir. 1951).
^' Cf. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941).
"'Cf. Mason v. American Emery Wheel Works, 241 F.2d 906 (ist Cir. 1937).
®^See Erie R.R. v. Tompkins, 304 U.S. 64 (1938).
** See p. 318 supra.
®'RESTATEMENT, JUDGMENTS §1 47-48 (1942); Scott, Collateral Estoppel by
Judgment, 56 HARV. L . REV. I , 2 (1942).
*" RESTATEMENT, JUDGMENTS §§ 68-70 (1942); Scott, supra note 65, at 2-3.
1958] PROOF OF FOREIGN LAW 327

determinations of "ultimate fact": "those facts, upon whose combined

occurrence the law raises the duty, or the right, in question . . . ." *''
Such effect is never given to statements of legal principles ®® nor gen-
erally to determinations of "evidentiary" or "mediate" fact, from which
the existence of ultimate facts is inferred."^ Furthermore, collateral-
estoppel effect is given to determinations of ultimate fact only when
the issue in both cases arises out of the same "historical transaction." '"'
And even prior determinations of ultimate fact arising out of the same
historical transaction will be ignored if "injustice" would resultJ^
Determinations of ultimate fact in cases arising under both domestic
and foreign law depend upon the declaration of a rule of law and the
application of that rule to the evidentiary factsJ^ Although there is
a greater risk of an erroneous determination of foreign than domestic
law, the forum's interest in putting an end to litigation '^ and the fact
that the parties themselves participated to a greater extent in the process
of law declaration and application suggest that determinations of ulti-
mate fact in cases arising under foreign law should be given no less
collateral-estoppel effect than similar determinations under domestic
law, and arguably broader/*
For similar reasons, when the two cases arise out of different historical
transactions, collateral-estoppel effect may be given to the statement of
the principle of foreign law itself rather than to the finding of the ultimate
fact resulting from the application of that statement to evidentiary facts
not involved in the subsequent suit J" An unlimited application of such
a doctrine, however, would bind the parties in all subsequent suits in-
volving the same point of law no matter how remote in time or factual

*'The Evergreens v. Nunan, 141 F.2d 927, 928 (2d Cir.) (L. Hand, J.), cert,
denied, 323 U.S. 720 (1944), 57 HARV. L. REV. 921.
®* See United States v. Moser, 266 U.S. 236, 242 (1924) (dictum). According
to some writers, "questions of law" include both statements of legal principles and
the application of those principles to evidentiary facts. See, e.g., Scott, supra
note 6s, at 7-10.
®° RESTATEMENT, JUDGMENTS § 68, comment p (1942); Developments in the
Law — Res Judicata, 65 HARV. L. REV. 818, 842 (1952).
''° Developments in the Law — Res Judicata, 65 HARV. L. REV. 818, 843 (1952).
Collateral estoppel may also apply in cases involving the same res. See Note, 55
HARV. L . REV. 120, 121 (1941).
•"Scott, supra note 65, at 10; see United States v. Stone & Downer Co., 274
U.S. 22s (1927)-
'''^ See The Evergreens v. Nunan, 141 F.2d 927 (2d Cir.), cert, denied, 323 U.S.
720 (1944), 57 HARV. L . REV. 921; HART & SACKS, op. cit. supra note 57, at 438-39.
" See id. at 612.
'••C/. Morgan, Judicial Notice, %^ HARV. L . REV. 269, 274 (1944). But see
Stern, supra note 48, at 28-29, who seems to draw no distinction between subsequent
litigation between different parties and that between the same parties.
The full ff'th and credit clause seems to require that a state court give to a
prior determination by a court of a sister state the same collateral-estoppel effect as
the first court would have given it. See United States v. Silliman, 167 F.2d 607
(3d Cir.), cert, denied, 335 U.S. 825 (1948); CHEATHAM, GOODRICH, GRISWOLD &
REESE, CONFLICT OF LAWS 278 (1957).
""See In re Miller's Estate, 104 Cal. App. 2d i, 15-20, 230 P.2d 667, 676-79
(1951). The court apparently adopted the rule that a determination of the law
of a foreign country as of a particular date would be "res judicata," but that the
doctrine could not be applied when the two cases required the determination of the
law as of different dates, because the "issue" and "evidence" were different.
328 HARVARD LAW REVIEW [Vol. 72

situation. Collateral-estoppel effect might therefore be limited to cases

arising out of parallel though not historically identical transactions. It
is unlikely that the parties would be unaware in the prior suit of the
possibility of subsequent litigation on the related transactions.''*'
Whether or not the cases arise out of the same historical transaction,
the parties should be allowed to demonstrate in subsequent litigation
an intervening change in the law of the foreign country.'^''

T H E ENFORCEMENT OF RIGHTS AGAINST PATENT

INFRINGERS
I. JURISDICTION OF FEDERAL AND STATE COURTS

Congress has vested in the district courts exclusive jurisdiction over

cases "arising under any Act of Congress relating to patents . . . ." ^
A state court, however, may decide patent questions incidental to the
adjudication of cases arising under state law, notably those concerning
licensing or assignment contracts.^ Whether or not a case is one "arising
under" federal law depends entirely on the nature of the claim asserted
by the plaintiff.^ If the patentee presents a complaint for infringement,
he must bring the action in a federal court, even though he anticipates
a defense based on contract.* All other cases,' including those in which
the patentee seeks a contract remedy such as rescission, specific per-
formance, or recovery of unpaid royalties, arise under state law and
therefore, in the absence of diversity of citizenship, cannot be brought
in a federal court.®
Since to establish an infringement, the plaintiff may have to prove
that the defendant's acts are not protected by any valid and subsisting
license or assignment, the elements of proof requisite to an action of
infringement may be identical with those requisite to a contractual
action in a state court. For example, if a licensee has used the patented
device in a manner forbidden by the license, his unauthorized conduct
constitutes both a breach of contract and an infringement, and may give
rise to an action either in a state or a federal court, depending upon the
way in which the plaintiff drafts his complaint.^ Similarly, if the plain-
" C / . 57 HARV. L . REV. 921-22 (1944).
" Cf. Blair v. Commissioner, 300 U.S. s, 9 (1937); Scott, supra note 65, at 7.
' 2 8 U . S . C . I i338(a) (1952).
"See, e.g.. New Marshall Engine Co. v. Marshall Engine Co., 223 U.S. 473
(1912); Pratt v. Paris Gas Light & Coke Co., 168 U.S. 255 (1897). See also Note,
31 CoLUM. L. REV. 461 (1931).
'•The Fair V. Kohler Die & Specialty Co., 228 U.S. 22 (1913).
*See Healy v. Sea Gull Specialty Co., 237 U.S. 479 (1915); White v. Rankin,
144 U.S. 628 (1892).
° Exceptions to this generalization are actions for patent interference under 35
U.S.C. § 13S (19S2), and actions to compel the issuance of a patent brought in the
District Court for the District of Columbia by applicants disappointed by rulings
within the Patent Office under 35 U.S.C. §§ 14s, 146 (1952).
^Luckett V. Delpark, Inc., 270 U.S. 496 (1926); Wilson v. Sandford, Si U.S.
(10 How.) 99 (1850).
' See Indiana Mfg. Co. v. Nichols & Shepard Co., 190 Fed. 579, 584 (C.C.E.D.