Foreign Law Interpretations in U.S. Domestic Courts

What Weight or Deference?

By Daniel J. Martucci

Dan Martucci received his J.D. from Albany Law School in 2020. He is a 2016 graduate of the State University of New York, College at Brockport, where he majored in Political Science. While studying at SUNY Brockport, Dan served as President of the school’s European Union Simulation team, where students traveled both nationally and internationally to compete.

While at Albany, Dan served as Albany Law Review’s Executive Editor for Coordinating and Operations. Dan was also the recipient of the Best Brief award for the Gabrielli Appellate Advocacy Moot Court Competition.

Prior to joining the Albany law firm of O’Connor First, Dan gained experience in a number of practice areas including business and corporate, cyber security and data privacy, as well as the judiciary when he participated in the field placement program at the New York State Supreme Court, Appellate Division, Third Department.

In an increasingly globalized economy, conflict between domestic and foreign law is inevitable.  To resolve such conflict, U.S. courts look to a variety of sources of law, including foreign governments and foreign courts interpretations of their own law.  Until recently, circuit courts were divided on the level of deference that should be given to these interpretations.  The Supreme Court addressed this, though only partially, with Animal Science Products v. Heibei Welcome Pharmaceutical Company.

To start, by way of analogy, if a U.S. state’s Attorney General gives an opinion on their state’s law, the federal courts are not required to give that consideration controlling weight in their decision.   However, if a state’s highest court has decided an issue, the federal courts are bound to defer to that decision. This particular scenario was not answered by the case and presents an interesting issue.  Instinctively, it seems that the analogy should follow; judges of a state’s (or foreign country’s) highest court are best equipped to determine what the law means.

Whether or not the framework above may be applied partially relies on the concept of international comity, which governs international law and judgments from foreign courts vis-à-vis their weight in U.S. courts. This paper will discuss the relevant unilateralist, universalist, and multilateralist theories, analyze antitrust concepts applicable to that discussion, and explore the way the Supreme Court should address foreign high court interpretations, foreign executive agency interpretations, and authority under international treaties.

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To read the paper, open HERE.

International Child Abduction Remedies Act

Deference to Foreign Custody Judgments as a Principle of International Comity

By Christopher Honeywell
Chris Honeywell, a 2012 graduate of Albany Law School, is currently an Associate Attorney with Girvin & Ferlazzo in Albany, where he practices in their litigation department. He did his undergraduate work at St. Lawrence University.
While in law school, Chris served as a judicial intern to Hon. Eugene P. Devine, Supreme Court, Albany County. He also served as Executive Director of the law school's Moot Court Program and, in recognition of his contributions, he was inducted into the Albany Law School Chapter of the National Order of the Barristers.
Chris prepared this paper for Prof. Alexandra Harrington's course in International Child Rights, Spring 2012.

The International Child Abduction Remedies Act does not require courts to grant deference to a foreign custody order. In a country where American superiority is at minimum a subconscious thought of many Americans, do United States courts give foreign judgments deference under the principle of international comity even though the full faith and credit clause does not require it?

Child custody is never an easy issue for courts to determine. The ever-evolving standards and criteria upon which to base custody, as well as the emotional toll the proceedings alone can have on a family, cause child custody decisions to be contentious and heart wrenching endeavors. Only complicating these proceedings are the technological advancements in travel during the second half of the 20th century, which make it easier for people to travel abroad, work in other countries, and even marry and settle down in a foreign country.

When the marriage is successful, the child has the tremendous opportunity of being exposed to a variety of cultures and opportunities. However, when the marriage fails, differing views on child rearing, gender roles, and what is best for the child make child custody cases a nightmare to determine. Complicating it even further is when one parent takes the child and flees the country, either returning to their home country to raise the child, or escaping the country where a custody agreement handed down was not in that parent’s favor.

International disputes of any nature often raise questions of which State and court should decide the issue and which State’s laws will be controlling in the case. One more added layer of controversy is that of culture. Disputes will arise because of cultural differences in childrearing and the courts may be in a position where they have to weigh the cultural values of a society they have no experience with and even a culture they may disagree with against a familiar culture. Lacking stable guidelines on dealing with international custody disputes, courts were coming to different conclusions and interpretations, allowing for parents to more easily abduct their child and forum shop for the appropriate location to raise their child out of reach from the other parent.

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To read the paper, open HERE.