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. 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.
Cornell International Law Journal (forthcoming).
Main, Thomas O., "The Word Commons and Foreign Laws" (2012). Scholarly Works. 704.