U.S. federal courts determine foreign law.

I wanted to get back to Japan today, but I got stuck researching, or re-researching, an issue.

Since 1966, United States federal courts have had a rule, Federal Rule of Civil Procedure 44.1, that allows federal judges to apply the laws of a foreign country to a federal suit filed in America. The significant thing is that they take the question as a matter of law–meaning that you do not have to prove, as a matter of fact, what the foreign jurisdiction law is. The judge determines this based off his/her own research, or whatever is submitted to the court, including expert testimony as to what the law is.

So, as a practical matter, issues of Japanese labor law could be decided in Manhattan, New York, by a judge sitting in the Southern District of New York. The opposing party has to be given notice that the lawsuit involves issues of foreign, i.e. non-American, law; but other than that, the feds will hear the matter.

Within this IBM matter that I’ve blogged about (Google it please, there are too many links), there are related questions of overtime and just breach in general of Japan labor law and labor contract law. Since the EEOC is still going to town on the administrative charge, there is no way to raise these in Tokyo—since it might create something called issue and/or claim preclusion. However, the causes of action continue to remain, and could easily be brought in New York in the event that I found myself stateside.

So just doing cheap Google research pointed me to a number of interesting sites, and even one recent case blogged about on the interpretation of foreign law. The source of the post was a case out of the Seventh Circuit, which I think is around Chicago or Ohio, handed down September 2nd. It had Posner, Eisner and Wood, three of the all-star circuit judge team back home.

(Meaning: If the 13 circuit courts had an all-star team every July, all three of those judges would be getting elected to it routinely.)

I want to keep September as a “nice Japan” month, if I can. So I don’t want to say anything negative. But I do wonder how U.S. federal judges would interpret Japanese labor law. There is plenty of commentary in English, so it’s not like they have to learn Japanese.