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]

greed 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?

Is there an instance when a state law would have to consider this? In fact, I'm trying to think of a domestic case that would even apply period.

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?

I could be wrong, but our extradition policy is based around possible punishments, no? Is this something that would even be addressed?

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.

Absolutely - it's very ham-fisted, but to spend as much time focusing on the Sharia part (since Sharia is not explicitly international law, but cultural/religious in many cases) misses the broader point, I think.

[mylaptopisevil.livejournal.com]

Is there an instance when a state law would have to consider this?

Based on the OP's point, it seems more with legal documents from out of country being valid. I would personally add things like if someone in that state should be extradited or not. I assume the state (and/or federal) government would have involvement in allowing that to take place, let alone assisting in the matter.

Absolutely - it's very ham-fisted

Which is my concern. Should we write laws that are ham-fisted and don't really accomplish anything? I mean, you question what kind of instances where state laws would even be considering outside laws, religious or otherwise, and extradition policy already considers outside laws and punishments. So what does this address? If it is merely a symbolic law, should our laws be created to create a statement as opposed to accomplish a goal? What is the statement this law is trying to make?

[badlydrawnjeff.livejournal.com]

Based on the OP's point, it seems more with legal documents from out of country being valid.

That's not a question of international law, since domestic law covers what documents hold what weight.

What is the statement this law is trying to make?


The statement is that international law should not be a guiding point in jurisprudence.