The first discussion in this excellent and provoking Symposium concerns the effect of a party's failure to prove the content of foreign law. That discussion epitomizes much of what is wrong in academic thought about choice of law today.
The Symposium colloquy focused on Walton v. Arabian American Oil Co. The issue in that case was whether an employer could be held liable under respondeat superior for an automobile accident in Saudi Arabia. Neither side offered or attempted to prove the content of Saudi law. Plaintiff instead obstinately rested his case on New York law. The trial judge, however, refused to take judicial notice of Saudi law and directed a verdict for defendant. The Second Circuit affirmed.
That decision would be inexplicable if rendered today. It ignores the language of Federal Rule of Civil Procedure 44.1. Worse, it ignores litigation realities and common practice. There is no constitutional or practical objection to the application of New York law to the Walton plaintiff's case. Accordingly, the enthusiasm shown by several of the Symposium participants for the result in Walton can only be explained by the over-fondness for conceptualization that I believe mars contemporary academic discussion of choice of law.
Reynolds, William L.
"What Happens When Parties Fail to Prove Foreign Law?,"
Mercer Law Review: Vol. 48
, Article 8.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol48/iss2/8