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«1-1-2012 The Word Commons and Foreign Laws Thomas O. Main University of Nevada Las Vegas William S. Boyd School of Law Follow this and additional ...»

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University of Nevada, Las Vegas -- William S. Boyd School of Law

Scholarly Commons @ UNLV Law

Scholarly Works Faculty Scholarship

1-1-2012

The Word Commons and Foreign Laws

Thomas O. Main

University of Nevada Las Vegas -- William S. Boyd School of Law

Follow this and additional works at: http://scholars.law.unlv.edu/facpub

Part of the Civil Procedure Commons, Comparative and Foreign Law Commons, Conflicts of Law Commons, and the Foreign Law Commons Recommended Citation Main, Thomas O., "The Word Commons and Foreign Laws" (2012). Scholarly Works. Paper 704.

http://scholars.law.unlv.edu/facpub/704 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarly Commons @ UNLV Law. It has been accepted for inclusion in Scholarly Works by an authorized administrator of Scholarly Commons @ UNLV Law. For more information, please contact david.mcclure@unlv.edu.

DRAFT. PLEASE DO NOT CITE OR CIRCULATE WITHOUT PERMISSION.

THE WORD COMMONS AND FOREIGN LAWS

Thomas O. Main* Dual trends are colliding in U.S. courts. The first trend is a tidal wave of cases requiring courts to engage the domestic laws of foreign legal systems;

globalization is the principal driver of this escalation. The second trend is a profound and ever-increasing skepticism of our ability to understand foreign law;

the literature of pluralism and postmodernism has illuminated the uniquely local, language-dependent, and culturally embedded nature of law. Courts cope with this dissonance by finding some way to avoid the application of foreign law. But these outcomes are problematic because parties are denied access to court or have their rights and responsibilities determined pursuant to the wrong law.

This Article offers an exposition of lexical meaning to explain the source of these oppositional trends and to illuminate possible solutions. Legal words and ideas transcend geographic, social, and cultural boundaries. For this reason, the words of another legal system look familiar and, thus, appear knowable to an outsider. Yet autonomous national legal systems tend to tailor the meanings of these shared words for idiosyncratic purposes. Thus ironically—even paradoxically—the more commonly a word is used, the less predictable is its meaning. This differentiation of meanings makes actual knowledge of the foreign law difficult to achieve.

As a framework for examining this phenomenon, this Article demonstrates that the common meaning of a word is a limited resource. The common meaning of a word erodes when legal systems assign a new meaning to a shared word.

Idiosyncratic meanings are useful and generative, but they also introduce an important negative externality because the common meaning of a word is essentially the starting point for measuring the meaning of that word in a foreign system. The more robust the common meaning, the lower the measurement costs.

* William S. Boyd Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas. The author thanks Anupam Chander, Martha Minow, Scott Dodson, Elizabeth Burch, Tom Rowe, Dan Markel, Alexandra Lahav, Kevin Stack, Greg Pingree, Jay Tidmarsh, Collin Wedel, Stephen Subrin, Matt Hall, Gregory Schneider, Emily Navasca, and others who generously shared their expertise and offered their insights.

This paper also benefitted from comments made by friends and colleagues at the University of Nevada-Las Vegas William S. Boyd School of Law and the University of the Pacific McGeorge School of Law, and by colleagues during presentations at Temple University Beasley School of Law, University of San Francisco Law School, St. Mary’s University School of Law, and the Northern California International Law Scholars Program.

Electronic copy available at: http://ssrn.com/abstract=2160037 2 __ Cornell Int’l L.J. __ (forthcoming) The prototypical solutions to common-pool problems—privatization and regulation—are infeasible here. And ubiquitous efforts to unify, approximate, or harmonize laws tend to exacerbate the problem rather than help solve it.

We could drop the pretense that we are able to understand foreign law and eliminate the demand for it. Or, if the doctrines are going to presume familiarity with foreign law, we must address the supply-side and ensure that courts are, in fact, better able to ascertain foreign law.

TABLE OF CONTENTS

INTRODUCTION

I. COMMON WORDS

II. WORD MEANINGS

A. The Meaning of Lay Words and Legal Words

B. Original Meaning, Local Meaning, and Common Meaning

C. Common Meaning as a Limited Resource

III. THE RELEVANCE OF FOREIGN LAWS

IV. MEASURING FOREIGN MEANING

A. The Unique Challenge of Ascertaining Foreign Law

B. The Significance of a Word’s Common Meaning

V. THE COSTS AND BENEFITS OF MEASUREMENT

A. The Process of Measurement

B. The Avoidance of Measurement

VI. SOLUTIONS TO THE COMMON-POOL PROBLEM

CONCLUSION

INTRODUCTION

In the article that popularized the tragedy of the commons, Professor Garrett Hardin suggested that a common-pool resource might be justifiable for a substantial period of time before it ultimately collapses.1 Providing an open pasture for farmers to graze their cattle, for example, worked satisfactorily for a long time because wars, theft, and disease kept the numbers of both farmers and cattle below the carrying capacity of the land. But there arrives a moment in time when conditions demand that that approach be abandoned as unsustainable. Because inevitably comes the “day of reckoning” when the “inherent logic” of the commons leads inexorably to tragedy.2 Globalization is leading to a similar tipping point regarding the

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ascertainment of foreign law. There is an ever-increasing number of disputes with multi-national contacts. These cases implicate constellations of doctrines and statutes that, in turn, require courts to engage foreign laws. “As you read these words, there are half a dozen U.S. courts that are assiduously citing foreign law.”3 Courts confront matters involving Korean contract law,4 Egyptian corporate law,5 Peruvian civil procedure,6 Russian criminal process,7 and so on. And this spectacle is just getting underway.8 Yet rather than actually applying the foreign law that they cite, courts usually avoid it.9 The artful dodge comes in many forms, and the consequences of evasion can be serious. Cases that would otherwise require the court to apply foreign law are frequently dismissed.10 In other instances, litigants may have their rights and responsibilities determined pursuant to the wrong law.11 The salient reason for the avoidance of foreign law is the mismatch between what the courts are able to do and what the doctrines and statutes require.

Ascertaining foreign law presents a formidable challenge. The inherent complexity of a legal system poses a tremendous burden for someone not trained in that system to navigate and decipher. The legal pluralism literature warns of nuance in layers of ordering: a mandate that is considered out of context can be incomplete or misleading.12 And scholars of different orientations have sharply illuminated the vagaries of cultural and language translations.13 Moreover, the content of foreign law cannot be buried, as a question of fact, in the black box of jury decision-making. Rather, it is a question of law.14 Accordingly, this shines a spotlight on judicial resolution of the question—for both trial and appellate judges. Unfortunately, the adversarial system tends to magnify the problem.15 The difficulty of ascertaining foreign law is somewhat peculiar since many legal systems throughout the world use thousands of the same Latin,16

3. Stephen Yeazell, When and How U.S. Courts Should Cite Foreign Law, 26 CONST. COMMENT. 59, 61 (2009).

4. See, e.g., LG Electronics, Inc. v. ASKA Appliances, Inc., 2012 WL 2365901 (D. Del. June 21, 2012).

5. See, e.g., Bigio v. Coca-Cola Co., 675 F.3d 163 (2d Cir. 2012).

6. See, e.g., Application of Consorcio Minero, S.A. v. Renco Group, Inc., 2012 WL 1059916 (S.D.N.Y. March 29, 2012).

7. See, e.g., Starski v. Kirzhnev, 682 F.3d 51 (1st Cir. 2012).

8. See infra notes 171–175, and accompanying text.

9. See infra notes 281–287 and accompanying text.

10. See infra notes 288–298 and accompanying text.

11. See infra notes 301–324 and accompanying text.

12. See infra notes 191–195 and accompanying text.

13. See infra notes 196–233 and accompanying text.

14. See FED. R. CIV. P. 44.1.

15. See infra notes 254–280 and accompanying text.

16. Popular Latin words include certiorari, coram nobis, ex parte, in rem, mandamus, pro rata, quantum meruit, res ipsa loquitur, and respondeat superior. For a longer list, see DAVID MELLINKOFF, THE LANGUAGE OF THE LAW 14–15 (1963). Latin’s place in the history of the development of the law is well documented. All major sources of Electronic copy available at: http://ssrn.com/abstract=2160037 4 __ Cornell Int’l L.J. __ (forthcoming) French,17 and English18 words in their codes and discourse. Another large corpus of words is shared between and among legal systems, although not verbatim.

Instead, these words are translated from one language into another. For example, purchase and sale in English resembles compra y venta in Spanish, compravendita in Italian, achat et vente in French, einkauf und verkauf in German, and so on.

However, shared words do not necessarily have shared meaning. Legal systems tailor the meanings of words to reflect the unique priorities, preferences, and goals of a judicial, political, or social system.19 The meaning of the word class action, for example, will vary among countries for good but idiosyncratic reasons.

In one country, the word can refer to a joinder device that only a government actor our knowledge of Roman law are written in Latin, including the Corpus Iuris Civilis, arguably the most influential law book ever written. JUSTINIAN, JUSTINIAN’S INSTITUTES 18 (Peter Birks & Grant McLeod trans., Cornell Univ. Press 1987) (c. 535 C.E.). Law Latin is especially durable as a technical language for the legal profession. See 3 WILLIAM BLACKSTONE, COMMENTARIES *320–21 (“[L]aw-latin is... a mere technical language, calculated for eternal duration, and easy to be apprehended both in present and future times;

and on those accounts best suited to preserve those memorials which are intended for perpetual rules of action.”).

17. Popular French words include: cestui que, cy pres, demurrer, force majeure, mortgage, refoulement, renvoi and voir dire. “It would be hardly too much to say that at the present day almost all our words that have a definite legal import are in a certain sense French words.” 1 POLLOCK & MAITLAND, THE HISTORY OF ENGLISH LAW 80 (Cambridge 1968) (1895). Other examples include:

Contract, agreement, covenant, obligation, debt, condition, bill, note, master, servant, partner, guarantee, tort, trespass, assault, battery, slander, damage, crime, treason, felony, misdemeanor, arson, robbery, burglary, larceny, property, possession, pledge, lien, payment, money, grant, purchase, devise, descent, heir, easement, marriage, guardian, infant, ward, all are French. We enter a court of justice: court, justices, judges, jurors, counsel, attorneys, clerks, parties, plaintiff, defendant, action, suit, claim, demand, indictment, count, declaration, pleading, evidence, verdict, conviction, judgment, sentence, appeal, reprieve, pardon, execution, every one and every thing, save the witnesses, writs and oaths, have French names.

Id. at 81. See also PETER M. TIERSMA, LEGAL LANGUAGE 25–26 (1999).

18. Popular English words include class action, forum-shopping, franchise, lease, punitive damages, and shrink-wrap license, for example. See generally HEIKKI E.S.

MATTILA, COMPARATIVE LEGAL LINGUISTICS 210–11 (2006); Celia Wasserstein Fassberg, Language and Style in a Mixed System, 78 TUL. L. REV. 151, 164 (2003) (discussing Hebrew as a modern legal language, and the incorporation of English loanwords therein).

19. On the fundamental differences between societies, see William P. Alford, On the Limits of ‘Grand Theory’ in Comparative Law, 61 WASH. L. REV. 945, 956 (1986) (discussing the Chinese criminal justice system); George P. Fletcher, Constitutional Identity, 14 CARDOZO L. REV. 737 passim (1993) (comparing U.S. and European legal cultures); Frederick Schauer, Free Speech and the Cultural Contingency of Constitutional Categories, 14 CARDOZO L. REV. 865, 868–72 (1993) (exploring different countries treatment of speech and expression rights); Arthur Taylor von Mehren, Special Substantive Rules for Multistate Problems: Their Role and Significance in Contemporary Choice of Law Methodology, 88 HARV. L. REV. 347, 350–56 (1974) (explaining that differing expectations complicate multistate litigation).

THE WORD COMMONS AND FOREIGN LAWS 5

can initiate; while in another it can refer to a joinder device permissible only for consumer cases. Difference in word meaning can range from subtle to dramatic.

Because words have more than one meaning, we can discern from those variant meanings what we might call a common meaning—defined here as that which is common to all of the variant meanings. For example, if the term class action has different meanings in the systems of the United States, Finland, and Norway, the common meaning of that term is the common ground among the various extant meanings.

The most novel contribution of this Article is the characterization of a word’s common meaning as a limited resource. Common meaning is a limited resource because the introduction of variant meanings can diminish, but will never enhance the content or scope of a word’s common meaning. By using the word class action, for example, each system’s variant meaning may, in turn, progressively erode the common ground. The more disciplined and uniform the meanings assigned to a word, the more robust its common meaning. At the other extreme, promiscuous use of the word could deplete its common meaning rather quickly.



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