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5.5 Proof of foreign law
At common law, the only law a court would recognize was that of its own state. The law of other states and countries was but a fact. Thus, when choice-of-law rules referred to the law of another state or country, that law had to be pleaded and proved like any other fact. That meant that the foreign law was argued to the jury and could not generally be reviewed by an appellate court.
In this century, however, statutory changes in the United States have modified the common law rule. A large number of states have provisions for judicial notice of sister state law, and in a few instances this has been extended to include
foreign-country law.
Federal Rule of Civil Procedure 44.1, for example, provides that the court shall treat an issue concerning the law of a foreign country as a question of law which may be reviewed on appeal.
The judicial notice procedure is very useful and generally presents little trouble when the law of another state is in question. When the law of another nation is at issue, however, courts should be wary of making assumptions about legal systems which bear a surface similarity to ours, but which, on closer analysis, are quite different; foreign law must be understood as well as recited. Nevertheless, American courts have managed to apply the law of some rather exotic places.
When judicial notice is not applicable, and when proof of foreign law fails, courts at times presume the foreign law to be identical with that of the forum or it may dismiss the suit.
5.6 Public policy
Under the traditional approach to choice of law, the forum's conflicts rules would direct it to the law of a particular state, initially without regard to the content of that