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In the controversy over judicial citation of foreign law, little noticed are the effects of citations that contrast American law with the laws of foreign jurisdictions. The controversy typically revolves around the extent to which judges may legitimately look to foreign law as persuasive authority in American courts. It arises out of the Supreme Court’s longtime penchant for referring to foreign law, which has attracted particular attention in recent years after it surfaced in a number of high-profile cases. This practice has prompted both judicial criticisms and defenses. Likewise, many constitutional and comparative law scholars have raised questions about the permissibility and prudence of the practice.
Alexander v. FedEx Ground Package System, Inc., 765 F.3d 981 (9th Cir. 2014)
Employment law cases often present one particularly vexing issue: whether a worker should be classified as an employee or an independent contractor. Under California law, this determination relies primarily on the common-law “right-to-control” test along with several secondary factors. In Alexander v. FedEx Ground Package System, Inc., the Ninth Circuit Court of Appeals considered whether FedEx delivery drivers were misclassified as independent contractors under California’s multi-factor right-to-control test. A three-judge panel of the Ninth Circuit concluded that FedEx drivers should have been classified as employees.
Presently, Massachusetts courts lag behind courts of federal jurisdiction with regard to the use of prior consistent statements at trial. While the Advisory Committee notes accompanying Federal Rule of Evidence 801 explicitly state that “no sound reason is apparent why” prior consistent statements made under oath “should not be received generally [at trial],” in Massachusetts, prior statements are not admissible for the truth of what they assert when they are consistent with testimony at trial. Instead, pursuant to a variety of Massachusetts Supreme Judicial Court (SJC) and Appeals Court decisions, such prior statements are admissible only to suggest to the fact-finder that the witness is credible. Contrastingly, when these statements are sufficiently inconsistent with testimony at trial, they are admitted for their full probative value.