Stupid is as Stupid Does

[jennem.livejournal.com]

Oklahoma recently passed a constitutional amendment that prohibits courts in that jurisdiction from relying on foreign law.

Specifically, the measure amended Article 7, Section 1 of the Oklahoma Constitution to say:

“The Courts . . . when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law.

Setting aside the constitutionality of such a measure, is it smart?

Consider the scope of the ban. Judges aren't just prohibited from considering international (or Sharia) law when considering the constitutionality of a law. They're prohibited from considering foreign (or Sharia) law, period.

Foreign law comes up all the time in the state and federal court system. Hell, state and federal courts often interpret and apply foreign law when conflicts of law and choice of law principles point towards the application of such laws.

Got a contract that stipulates that the laws of the United Kingdom apply? Sorry. Not in Oklahoma. The courts are now forbidden from interpreting or applying the laws of the United Kingdom to your contract. What about a contract that stipulates a foreign forum for all legal disputes? Sorry. The provision prohibiting state courts from addressing the legal precepts of other nations or cultures potentially precludes courts from enforcing such provisions. Enforceability of foreign judgments, enforceability of arbitration awards, the doctrine of forum non conveniens, principles of personal jurisdictional. The amendment impacts all of these in ways that could negatively affect Oklahomans and their ability to obtain legal relief within the borders of their own state.

The amendment created a host of legal problems to avoid the boogeyman. What the hell were you thinking, Oklahoma?

Comments

[badlydrawnjeff.livejournal.com]

Setting aside the constitutionality of such a measure, is it smart?

Smart in theory? Absolutely. Smart in execution? Absolutely not.

Foreign law comes up all the time in the state and federal court system. Hell, state and federal courts often interpret and apply foreign law when conflicts of law and choice of law principles point towards the application of such laws.

The issue is that there are times that it's appropriate, and times that it is not. Sharia Law? Inappropriate. Using foreign law to help decide whether our Constitution is on the right side of an issue as Anthony Kennedy famously did a few years back? Inappropriate. Applying foreign law to a situation that involves foreign law? Sure. I don't think even the crafters of this amendment quite intended that, but this seems to have been a rush job.

The amendment created a host of legal problems to avoid the boogeyman. What the hell were you thinking, Oklahoma?

They were thinking, just not completely. This will create more problems than anticipated early on, but I also think that adjustments will come about faster than we think.

[mylaptopisevil.livejournal.com]

Sharia Law? Inappropriate.

Due to it being religious or due to it being Sharia?

[badlydrawnjeff.livejournal.com]

Both, truly. But I don't think you can really separate the two.

[mylaptopisevil.livejournal.com]

I can personally see select portions of a religious text as guidelines worth consideration and other portions as guidelines to reject, just like I can see international non-denominational laws as just laws worth considering and other laws as ones worth rejecting.

For example, I might see country X's views on copyright protection as fair while rejecting their views on free speech. And, in turn, in the event there was ever a case where I was on jury and having to consider country X's copyright protection laws I would feel that it's reasonable to take into account. Meanwhile if I sat on a jury where country X's views on free speech had to be considered in the case, I'd proactively and openly not wish to take it into account.

[badlydrawnjeff.livejournal.com]

I can personally see select portions of a religious text as guidelines worth consideration and other portions as guidelines to reject, just like I can see international non-denominational laws as just laws worth considering and other laws as ones worth rejecting.

Except they really have no place in domestic law. We're not talking a religious court here.

For example, I might see country X's views on copyright protection as fair while rejecting their views on free speech. And, in turn, in the event there was ever a case where I was on jury and having to consider country X's copyright protection laws I would feel that it's reasonable to take into account. Meanwhile if I sat on a jury where country X's views on free speech had to be considered in the case, I'd proactively and openly not wish to take it into account.

Absolutely, and this is reasonable in the circumstances you describe, but not necessarily in the circumstances prescribed by this Amendment.

[mylaptopisevil.livejournal.com]

Except they really have no place in domestic law.

Agreed to a point. If we're considering a case that involves international law for whatever reason, and that international law is rooted in religious law, do we just dismiss it? Do we ignore it?

If country X has adultery count as a crime based on religious doctrine Y, and so-and-so commits adultery in that country, do we extradite? If the law is based on a non-denominational root, do we extradite then?

Absolutely, and this is reasonable in the circumstances you describe, but not necessarily in the circumstances prescribed by this Amendment.

I think that the Amendment creates a blanket statement that is too vague to be enforced unless looking at the subtext of what it is really meant to accomplish.

If the law recognized certain things within a religious (or non religious) form of law that the courts should not recognize as valid, I would be behind it more*. But let's say that an international law (or Sharia Law) is reasonable in what it deems as unacceptable. Do we not help that location get the justice it should get "just because"?

(*Like laws/rules that deal with penalties due allowing yourself your own bodily autonomy, or a method of enforcement that includes draconian punishments, etc.)

A blanket statement of "we don't recognize international law, especially those Sharia ones!" seems grossly short-sighted, and done as a knee-jerk reaction to the fear-based cause of the day.

This could have been a good law if it explicitly referenced not acknowledging international laws, regardless of religious or non-religion origin, that go against the constitution and all the rights individuals are granted through it. Of course, it could still have messy international moments, but at least then the law would have been coming from a spirit I personally find more acceptable.

I doubt anyone would have found issue with the law if it said something like "Courts shall not acknowledge international laws that create or condone situations where a person faces unjust penalties/punishments or conflict with inalienable human rights granted through the constitution."

[heirtoruin.livejournal.com]

Can you separate the two?

Why must you even ask?

[mylaptopisevil.livejournal.com]

Can you separate the two?

Yes, unless someone is going to claim non-denominational laws are incapable of being offensive.

Why must you even ask?

Because I was curious.

[malasadas.livejournal.com]

I assumed it was to just piss off the comment police.

[mylaptopisevil.livejournal.com]

Heir must be really sad to see that an actual discussion came out of that question.

[langostino.livejournal.com]

Using foreign law to help decide whether our Constitution is on the right side of an issue as Anthony Kennedy famously did a few years back? Inappropriate.

. . . that entirely depends upon what one means by "using. . . to help decide". Justices and judges are, I hope, widely read and conversant with a range of diverse ideas from philosophy, literature, religion, history, and yes, other nations' laws. Clearly one can't build a firewall in the judge's head. SCOTUS opinions are peppered with references to all sorts of things that aren't binding precedent--historical texts, Blackstone, the Federalist Papers, etc. Even the Founding justices did this.

If you mean that foreign law ought not be precedential, then sure. But Kennedy's opinion isn't even close to that, nor is any other opinion of which I'm aware. And that's the crux of the matter--this is a complete bogeyman.

And the connection to sharia is just demagogic; even you should be able to recognise that. Whatever Anthony Kennedy or other "internationalist" judges are, they aren't proponents of whatever the proponents of this measure imagine sharia to be. If I were an Oklahoman who thought that the application of foreign law in American courts were a problem, I would have voted against this measure on that basis alone.

[badlydrawnjeff.livejournal.com]

. . . that entirely depends upon what one means by "using. . . to help decide". Justices and judges are, I hope, widely read and conversant with a range of diverse ideas from philosophy, literature, religion, history, and yes, other nations' laws. Clearly one can't build a firewall in the judge's head. SCOTUS opinions are peppered with references to all sorts of things that aren't binding precedent--historical texts, Blackstone, the Federalist Papers, etc. Even the Founding justices did this.

At the end of the day, however, the US Constitution is the US Constitution. Is there merit in, say, looking at the Magna Carta for some idea of inspiration or whatever? That's a debate worth having. Trying to figure out if something is Constitutional based on current international law that doesn't impact the case at hand otherwise? Wildly inappropriate.

If you mean that foreign law ought not be precedential, then sure. But Kennedy's opinion isn't even close to that, nor is any other opinion of which I'm aware. And that's the crux of the matter--this is a complete bogeyman.

And the connection to sharia is just demagogic; even you should be able to recognise that.

Is it? The precedent for it exists now. Kennedy has used foreign law (http://www.usatoday.com/news/washington/2003-07-07-foreign-usat_x.htm), Sharia has been deemed acceptable by domestic courts (http://volokh.com/2010/07/23/cultural-defense-accepted-as-to-nonconsensual-sex-in-new-jersey-trial-court-rejected-on-appeal/). Whether the fear is rare enough to be unfounded or not, these things actually happened, and this amendment is a ham-fisted reaction to it. Without knowing the specifics of the New Jersey case and their ability to use cultural indicators, Oklahoma is clearly drawing a line in the sand for their own litigation, which is within their rights.

If I were an Oklahoman who thought that the application of foreign law in American courts were a problem, I would have voted against this measure on that basis alone.

So if you saw the problem, you'd vote against this on the basis even though the amendment is designed to fix the problem? As poorly done as this amendment is, I could see myself voting in favor of it in order to force the hands of the courts and push the lawmakers to shift the pendulum back a ways instead of the current system in place.

[langostino.livejournal.com]

Regarding the New Jersey case--it was a bad ruling, yes. But it's not precedential as it was overturned. Bad decisions are made all the time. That's why we have appeals. The appeals process worked in this case.

And anyway, that case wasn't about sharia per se. The judge's ruling effectively created a religious-liberty exemption from certain laws. That's not so different from what many of the proponents of the Oklahoma amendment might favour regarding compulsory public school attendance, certain tax obligations, etc.--provided that the exemption were only allowed to Christians (and maybe Jews if they were feeling generous).

Kennedy didn't cite any foreign law as binding. He referred to it in the course of a much larger argument. If you have a problem with Kennedy's use of foreign law in that regard, do you also have a problem with the majority opinion in Bowers v. Hardwick, and the dissenting opinion of Scalia, which both cite the long history of anti-sodomy statutes, including nineteenth century British law?

[badlydrawnjeff.livejournal.com]

Regarding the New Jersey case--it was a bad ruling, yes. But it's not precedential as it was overturned. Bad decisions are made all the time. That's why we have appeals. The appeals process worked in this case.

This is my fault, because I'm interchangeably using the common and legal definitions of precedent. No, it's not a legal precedent, but it's a common precedent now. The New Jersey judge will not be the last judge to allow that argument.

Kennedy didn't cite any foreign law as binding. He referred to it in the course of a much larger argument. If you have a problem with Kennedy's use of foreign law in that regard, do you also have a problem with the majority opinion in Bowers v. Hardwick, and the dissenting opinion of Scalia, which both cite the long history of anti-sodomy statutes, including nineteenth century British law?

Yes, I would have, for the same reasons I oppose the use by Kennedy, had the situation occurred in the same way. However, Scalia was not part of the Bowers case, so I assume you're talking Lawrence, which overturned Bowers, and stated as follows:

The Court today pretends that it possesses a similar freedom of action, so that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion—after having laid waste the foundations of our rational-basis jurisprudence —the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 578. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 574 (emphasis added).

The use of a foreign case in this instance was not to create precedent or help assist in the decision in any way, but to instead describe the attitude of the Court regarding the case as Scalia saw it. Significantly different in all respects.

[langostino.livejournal.com]

Scalia's opinion refers to the fact that "no society" regards "homosexual sodomy" as a "fundamental right". That seems to me to be roughly the same sort of argument Kennedy is making, though Kennedy is more specific.

[langostino.livejournal.com]

Also, your argument about precedent is moronic. It constitutes an argument for enacting constitutional provisions against every single error in judging.

[underlankers.livejournal.com]

Except that Sodomy laws are an explicitly religious type of legal discrimination against a group that for instance, the Graeco-Roman world did not give two shakes of a rat's ass about so long as the usual trends to such things were followed.

[langostino.livejournal.com]

So if you saw the problem, you'd vote against this on the basis even though the amendment is designed to fix the problem?

Yes. Just as if I were in Weimar Germany, I'd vote against anti-inflation measures which also mentioned "Jewish finance".

[badlydrawnjeff.livejournal.com]

I suppose if we want to Godwin the thing.

But seriously, you see this in the same vein of rank anti-Semitic nonsense?

[mylaptopisevil.livejournal.com]

without really entering godwin-land, I do wonder how people would have reacted if the law was created to not recognize Jewish Law or Christian Law as a result of what is written in the Old/New Testaments.

It would probably cause a lot of pro-life people difficulty to know that the courts don't acknowledge the Christian concept of a soul when determining the legality of abortion and/or birth control, or how religions acknowledge marriage WRT considering the legality of gay marriage.

[langostino.livejournal.com]

Yes. Yes I do. The current climate re: Islam really does scare me, and it scares me because of the parallels I see to pre-Nazi Weimar Germany. I'm not saying that this law is a Nazi law, so it's not quite a Godwin; I'm saying that it reads a lot like some of the precursors.

When you have a member of the Texas State Board of Education saying that his problem with the current history books is that they have a "pro-Islamic bias", what I think is of the rhetoric about purging German universities of "Jewish science" and "Jewish mathematics".

[underlankers.livejournal.com]

Oh, please, when the Nazis were actually running for elections they learned very quickly to tone down the Jew-hating. That tended to lose them votes. The Germans weren't idiots enough to see that 0.5% of the German population as anything like the way the Nazis so desperately hoped they would. Once Hitler and company took over the German people became rather tolerant of Nazi violence because the Weimar Republic had become semi-authoritarian already under Hindenberg, one, and two, they had also a decent (not great, but decent) wage and three squares under Hitler and very little of either under the last days of the Republic.

It was a distasteful choice with downright nightmarish consequences, but it had basic human motivations. The Germans did not metamorphose overnight into the hordes of Mordor marching for their Bohemian Sauron.

[dwer.livejournal.com]

the US Constitution that says that treaties with foreign countries are the law of the land?

[badlydrawnjeff.livejournal.com]

I have no clue what you're actually responding to here, but if the Constitution says that a treaty is the law of the land, then it's not an international law anymore. It stops being an international law when it's a treaty, and starts being US law.

[dwer.livejournal.com]

oh, please. That's semantics of the highest order.