Section (1) recognizes that federal rules, and state and territorial laws may often be difficult to find in Alaska libraries. However, where the court is in possession of relevant material, notice may be taken.
Section (2) is very similar to Uniform Rule 9(2) (a), which was based on the Model Code of Evidence, Rule 802(a) (1942). Where private acts and resolutions are easily ascertained the court can conveniently take judicial notice of them and often will. Where agency regulations operate with the power of law there is every reason to take judicial notice of them. See AS 44.62.110, providing for judicial notice of regulations printed in the Alaska Administrative Code or Alaska Administrative Register. See also 44 U.S.C.A. § 1507, providing for judicial notice of the contents of the Federal Register; and Alaska Airlines, Inc. v. Northwest Airlines, Inc., 228 F. Supp. 322 (D. Alaska 1964), cert. denied, 383 U.S. 936, 15 L.Ed. 2d 853 (1965). Due to the difficulty of ascertaining all such acts, resolutions, regulations and ordinances as may be applicable to a case, the court need only take judicial notice on its own initiative where it is convenient to do so. See Australaska Corp. v. Sisters of Charity, 397 P.2d 966 (Alaska 1965).
Section (3) expands the scope of judicial notice. It recognizes that today there is no reason to conclusively presume that the law of sister states is beyond the reach of Alaska. Sometimes acts, regulations, and local ordinances of other states will be unavailable. If so the court will not have to take notice of them, because this section is permissive and Subdivision (d) places a burden of producing sufficient information on a party before notice must be taken. If Subdivision (d) is satisfied, there is no good reason not to take notice. A similar view is taken with respect to emergency and unpublished regulations of Alaska agencies.
Section (4) provides for discretionary notice of foreign law and international law. Long after the law of foreign states became a matter of judicial notice in many jurisdictions, the law of foreign countries remained a matter of fact to be pleaded and proved. The Uniform Judicial Notice of Foreign Law Act, although only applicable to the law of sister states, did state that determining the law of foreign countries ought to be an issue for the court, not the jury. See 9A Uniform Laws Ann. 550, 569 (1965). Foreign law still had to be pleaded and proved even after some states took the determination of foreign law from the jury. Where it was not pleaded or properly proved, dismissal was usually avoided by presuming the foreign law to be the same as the law of the forum. See Stern, Foreign Law in the Courts: Judicial Notice and Proof, 45 Cal. L. Rev. 23 (1957).
Federal R. Civ. P. 44.1 and its identical counterpart, Crim. R. P. 26.1 require that to raise an issue of foreign law, either notice must be given in the pleadings or other reasonable notice must be given. In determining foreign law, the court "may consider any relevant material or source, including testimony." The notice requirement functions to alert the parties that foreign law is an issue in the case.
Evidence Rule 202 treats foreign law as the proper subject of judicial notice. This is the view taken by Uniform Rule 9(2) (b) and by Alaska R. Civ. P. 43(a) (2) [b], superseded by this Rule. The court may look to any pertinent source of information including the testimony of expert witnesses to ascertain foreign law.
Section (2) also provides for judicial notice of international law. It was early stated that [i]nternational law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdictions as often as questions of right depending upon it are duly presented for their determination.
The Paquete Habana, 175 U.S. 677, 700, 44 L.Ed. 320, 328 (1899).
In ascertaining international law the court may consult and use any source of pertinent information. Just as in English canon law experts played a large part in determining foreign law, it is anticipated that expert testimony may play a role in showing what foreign and international law is in a given situation. See Texas v. Louisiana, 410 U.S. 702, 35 L.Ed. 2d 646 (1973); Panel, "Proving International Law in a National Forum," 70 Am. Soc'y Int'l L. (1976). Maritime law is treated similarly.
Section (5) provides that if a matter of law could be noticed under this Rule, but the law has been repealed or replaced, it still may be proved by judicial notice, if it remains relevant to the case.
Alaska Comm. R. Evid. 202