Interpreting Foreign Law Through an Erie Lens: A Critical Look at United States v. McNab

34 Pages Posted: 22 Feb 2010

See all articles by Doug Keller

Doug Keller

affiliation not provided to SSRN

Date Written: 2004

Abstract

This article uses United States v. McNab as a case study on what sort of framework federal courts should use when they must determine the law of a foreign country.

In McNab, the Eleventh Circuit upheld the conviction of four defendants for violating a U.S. law that made it illegal to violate the law of another country when importing wildlife or fish from that country. This, despite the fact that one of the Honduran laws that the U.S. conviction rested upon had been declared unconstitutional under the Honduran Constitution by the Honduran court system before the Eleventh Circuit had reviewed the district court’s determination of the validity of the Honduran law.

This article argues that the Eleventh Circuit reached the wrong result because it misapprehended its duty to interpret foreign law. In the 1960s, changes to the federal procedural rules required federal courts to stop treating foreign law as a question of fact. It was instead to be treated as a question of law, just like domestic law. This article argues that this requirement means that federal courts should interpret the law of a foreign country just like they interpret state law—i.e., using the Erie framework. That framework, broadly speaking, requires federal courts to follow what they surmise the state’s highest court would say the law is in that particular case since the state high court is the final arbiter on the meaning of state law. Moreover, if the federal district court guesses one way, but the state’s court system finally deals with the legal issue and rules another way before the case reaches the federal appellate court, the federal appellate court is to reverse the district court’s determination because the lower court guessed wrong. Applying that framework to McNab reveals that the Eleventh Circuit reached the wrong conclusion. The district court in McNab had made the Erie guess that the Honduran law was constitutional. Before the Eleventh Circuit reviewed that decision, the foreign court had determined that the law was unconstitutional. Thus, the Eleventh Circuit should have reversed the district court, since its Erie guess turned out to be incorrect.

Keywords: Erie Doctrine, Foreign Law, McNab

Suggested Citation

Keller, Doug, Interpreting Foreign Law Through an Erie Lens: A Critical Look at United States v. McNab (2004). Texas International Law Journal, Vol. 40, p. 157, 2004, Available at SSRN: https://ssrn.com/abstract=1556680 or http://dx.doi.org/10.2139/ssrn.1556680

Doug Keller (Contact Author)

affiliation not provided to SSRN

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