The New Canon: Using or Misusing Foreign Law To Decide Domestic Intellectual Property Claims

In recent decades, statutory interpretation has sparked a number of spirited disagreements in the United States. These disagreements, however, have been waged almost exclusively on a domestic battleground–over questions about the reliability of legislative history, the use of statutory purpose, and the application of other interpretive tools, all of domestic origin. The relevance of foreign authorities to the interpretation or application of a domestic statute has rarely been considered. Even today, the leading casebook on legislation in the United States makes only passing mention of the possible use of foreign authorities to decide issues involving domestic statutes, while a leading casebook on comparative law appears to cast doubt on, if not reject, that possibility. For many, this absence of discussion may seem to be not an oversight, but a manifestation of the basic principle that interpreting or applying a domestic statute is a question of domestic, not foreign, law.