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Intersystemic Statutory Interpretation in Transnational Litigation

11 Pages Posted: 29 Apr 2012 Last revised: 1 Feb 2013

Nicholas M. McLean

affiliation not provided to SSRN

Date Written: February 1, 2012

Abstract

When a U.S. court is called upon to interpret a foreign country’s statutes, what interpretive methodology should the court employ? As in the case of federal interpretation of domestic state laws, federal courts have been inconsistent in their answers to this question. In this Comment, I suggest that courts should make greater efforts to take foreign interpretive methodology seriously when construing foreign statutes. This is particularly important given that a number of foreign nations — like certain U.S. states, but unlike the U.S. Supreme Court — accord the status of law to statutory interpretation methodology.

Given the potential challenges associated with pairing foreign statutes with the appropriate foreign interpretive rules — particularly in light of the relatively limited body of scholarship at the intersection of the fields of statutory interpretation and comparative law — expert testimony can serve an important function in facilitating the correct application of foreign interpretive frameworks. In contrast, recent calls to reform the foreign law determination process by curtailing the use of expert witnesses could exacerbate federal courts’ lack of engagement with foreign interpretive practice. A greater focus on foreign statutory interpretation methodologies would better vindicate the comity and anti-forum shopping norms that militate in favor of the use of foreign law in the first place. It might also represent a step toward the development of a more vibrant methodological “dialogue” between the courts of the United States and those of other nations.

Suggested Citation

McLean, Nicholas M., Intersystemic Statutory Interpretation in Transnational Litigation (February 1, 2012). Yale Law Journal, Vol. 122, No. 1, 2012. Available at SSRN: https://ssrn.com/abstract=2047098

Nicholas M. McLean (Contact Author)

affiliation not provided to SSRN

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