In an earlier post, we shared the Black Letter to §§ 5.06 and 5.07 of Tentative Draft No. 1, Chapter 5. Choice of Law, Topic 2. Foreign Law, from Restatement of the Law Third, Conflict of Laws. The full draft contains additional Comments and Reporters’ Notes.

This Topic provides for three distinct steps when foreign law applies. First, a party or the court gives notice of foreign law (§ 5.06). Second, the parties and the court obtain and share information about foreign law (§ 5.07). Third, the court determines the content and meaning of foreign law (§ 5.08). This post contains the Black Letter to § 5.08 of the draft.

This project was on the 2020 Annual Meeting agenda before the Meeting was cancelled due to COVID-19. Accordingly, this text has not been considered by the membership of The American Law Institute and therefore does not represent the position of the Institute on any of the issues with which it deals. This supplement may be revised or supplemented prior to consideration by the membership in May 2021. If you are interested in obtaining a copy of this or any other Section of this project, please contact us

If you would like to learn more about the contents of Tentative Draft No. 1, watch this video overview by Reporters Kermit Roosevelt III, Laura E. Little, and Christopher A. Whytock.

§ 5.08. Determination of Foreign Law
(a) The court is responsible for determining foreign law.
(b) Ordinarily, the court should determine foreign law in light of how it is authoritatively interpreted and applied in the foreign state.
(c) If the court must determine foreign law to decide a motion to dismiss for failure to state a claim upon which relief can be granted, the court may use information about foreign law even if the material containing that information is outside the pleadings.
(d) Disputes over foreign-law determinations are not disputes of fact that preclude the court from granting a motion for summary judgment.
(e) The court’s determination of foreign law is reviewable as a question of law.

Kermit Roosevelt, III

Reporter, Conflict of Laws

Kermit Roosevelt is Professor of Law at the University of Pennsylvania Law School. He works in a diverse range of fields, focusing on constitutional law and conflict of laws. His latest academic book, Conflict of Laws (Foundation Press 2010) offers an accessible analytical overview of conflicts. He also is the author of two novels, Allegiance (Regan Arts, 2015) and In the Shadow of the Law (Farrar, Straus & Giroux, 2005).

Laura Elizabeth Little

Associate Reporter, Conflict of Laws

Laura E. Little serves as the Charles Klein Professor of Law and Government and Senior Advisor to the Dean at Temple University Beasley School of Law. She specializes in federal courts, conflict of laws, and constitutional law. She teaches, lectures, and consults internationally on these subjects and is routinely engaged for training judges as well as for speeches at academic and judicial conferences.

Christopher A. Whytock

Associate Reporter, Conflict of Laws

Christopher Whytock is Professor of Law and Political Science at the University of California, Irvine, and a faculty affiliate and member of the advisory board of the UCI Center in Law, Society and Culture. His research focuses on transnational litigation, conflict of laws, international law, and the role of domestic law and domestic courts in global governance.

Pauline Toboulidis

The American Law Institute

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