It’s pretty remarkable: If a contract provides that it is to be decided under, say, English law (or Mexican law), a judge wouldn’t be able to apply that law (see subsection C) — on penalty of impeachment. If a court is trying to decide whether an immigrant was another immigrant’s adoptive parent, a question that now reasonably turns on the law of the place of adoption, it would no longer be able to look to the foreign country’s statutes in determining that (see subsection B(1)). If a court is dealing with a tort claim based on an injury that happened in Canada, and the normal choice-of-law rule would require reliance on Canadian law (understandable), that normal rule would be preempted.
Courts dealing with common-law or common-law based doctrines of contract, tort, and property law would at least be able to consider (see the exception in subsection E(2)) influential English court decisions in those areas, decisions that have often become important parts of American law (and Arizona law) — but not if the decisions are handed down after the effective date of the article, or if they are from Canada or Australia rather than Great Britain. See, e.g., 7200 Scottsdale Road General Partners v. Kuhn Farm Machinery, Inc., 909 P.2d 408 (Ariz. Ct. App. 1995) (noting that “The doctrine of frustration of purpose traces its roots to Krell v. Henry, [1903] 2 K.B. 740,” and discussing this leading case at considerable length). Plus it’s not clear whether even older decisions would be covered, since the exception applies only to principles “inherited from Great Britain”; post-Revolutionary English precedents aren’t exactly “inherited” from Great Britain. Properly ratified treaties, which Article VI of the U.S. Constitution, says are the supreme law of the land, are at least exempted (F(2)). But foreign decisions interpreting such treaties, such as treaties governing foreign service of judicial documents, can’t be cited even as influential.
Are such radical changes to longstanding Arizona law really sensible? There are sensible criticisms of the use of foreign law in interpreting the U.S. Constitution, though even Justice Scalia thinks that such use of foreign law — and not just pre-1787 English law — is acceptable in limited ways. But is it really sound to displace the many subconstitutional rules through which American courts have long tried to accommodate the reality that much commercial and personal life is international?
Here’s the state house version; the senate version is identical:
A. A court shall not use, implement, refer to or incorporate A tenet of any body of religious sectarian law into any decision, finding or opinion as controlling or influential authority.B. A court shall not use, implement, refer to or incorporate any case law or statute from another country or a foreign body or jurisdiction that is outside of the United States and its territories in any decision, finding or opinion as either:
1. Controlling or influential authority.
2. Precedent or the foundation for any legal theory.
C. Any decision or ratification of a private agreement that is determined, on the merits, by a judge in this state who relies on any body of religious sectarian law or foreign law is null and void, is appealable error and is grounds for impeachment and removal from office.
D. This section applies to a federal court sitting in diversity jurisdiction.
E. This section does not apply to:
1. A statute or any case law developed in the United States and its territories that is based on Anglo-American legal tradition and principles on which the United States was founded.
2. A statute or any case law or legal principle that was inherited from Great Britain before the effective date of this article.
3. The recognition of a traditional marriage between a man and a woman as officiated by the clergy or a secular official of the matrimonial couple’s choice.
F. For the purposes of this section:
1. “Foreign Body” includes the United Nations and any agency thereunder, the European Union and any agency thereunder, an international judiciary, the International Monetary Fund, the Organization of Petroleum Exporting Countries, the World Bank and the Socialist International.
2. “Foreign Law” means any statute or body of case law developed in a country, jurisdiction or Foreign Body outside of the United States, whether or not the United States is a member of that body, unless properly ratified as a Treaty pursuant to the United States Constitution.
3. “Religious Sectarian Law” means any statute, tenet or body of law evolving within and binding a specific religious sect or tribe. Religious sectarian law includes Sharia Law, Canon Law, Halacha and Karma but does not include any law of the United States or the individual states based on Anglo American legal tradition and principles on which the United States was founded.
(For the “legislative findings,” see the linked-to document.) Oh, and I love the reference to the Socialist International, a source that would otherwise be very heavily cited by American courts.
Anderson says:
Insofar as contract cases are concerned, the statute would be most easily circumvented by having the contract provide for arbitration pursuant to Sharia law or whatever.
February 17, 2010, 2:21 pmChris Travers says:
That one has me laughing. Clueless legislators….
Edit: I think they meant “dharma” but I am not entirely sure….
(“Karma” in Sanscrit means “[Past] Action” and tends to be a reference more to cosmic principles in Dharmic religions than to any organized body of law. “Dharma” on the other hand tends to mean both “lot in life” and “law” and includes Indian religious legal traditions.)
February 17, 2010, 2:26 pmAnon321 says:
So, a federal judge in Arizona who enforces a contract with a UK choice-of-law provision can be impeached? (To name just one of many problems raised by the bill.) I’m not sure they’ve thought this thing through …
February 17, 2010, 2:27 pmEx parte McCardle says:
Clearly a slow legislative year in the desert Southwest.
February 17, 2010, 2:31 pmChris says:
Agreed Anon321. It’s when I got to Section D (“This section applies to a federal court sitting in diversity jurisdiction”) that I realized that these legislators are basically nuts. I guess the only issue left is whether the federal judges are impeached and convicted by Congress or by the Arizona Legislature.
February 17, 2010, 2:31 pmAnderson says:
It’s when I got to Section D (“This section applies to a federal court sitting in diversity jurisdiction”) that I realized that these legislators are basically nuts.
Really? I thought it was uncontroversial that federal courts apply state law in diversity cases.
February 17, 2010, 2:35 pmJust Dropping By says:
I agree, but it seems like you would still see a lot of parties arguing that paragraph (C) of the statute should be treated as making such an arbitration clause void as against public policy and/or that an arbitration award by an arbiter relying on “religious sectarian law or foreign law” would be unenforceable.
C. Any decision or ratification of a private agreement that is determined, on the merits, by a judge in this state who relies on any body of religious sectarian law or foreign law is null and void, is appealable error and is grounds for impeachment and removal from office.
February 17, 2010, 2:37 pmJust Dropping By says:
Federal court sitting in diversity do apply state substantive law (including the state’s choice of law doctrine in most situations), but how can a state purport to legislatively declare a federal judgment “null and void” per paragraph (C), let alone make it appealable error per se?
February 17, 2010, 2:42 pmChris Travers says:
The more I think through this, the stupider this bill looks.
For example, my spouse and I were legally married in Indonesia (which incorporates religious law in marriage requirements). Does this mean if we move to Arizona, that we cannot get divorced because we were never married in the first place? And that any judge who provides over such a divorce is ratifying such a private agreement and therefore can be impeached? The spousal visa relies in part on the fact that the marriage was legal where it was performed, so I don’t think that can save this bill.
Does it mean that instead such a marriage can only be annulled?
Does this cause an equal protection problem?
Hopefully this just dies in committee.
February 17, 2010, 2:45 pmAnderson says:
but how can a state purport to legislatively declare a federal judgment “null and void” per paragraph (C), let alone make it appealable error per se?
Ah, that part doesn’t work so well.
it seems like you would still see a lot of parties arguing that paragraph (C) of the statute should be treated as making such an arbitration clause void
Review of arbitration agreements almost never involves the application of any law — the courts have almost no power to find reversible error. But someone will make any argument sometime or other, so I’m sure that the unhappy loser in somesuch proceeding would take it to court on the basis you suggest. Which might end up in an interesting SCOTUS case.
February 17, 2010, 2:45 pmptt says:
I think you missed this bit:
You’re heteros, you’re safe.
February 17, 2010, 3:05 pmChris Travers says:
But that only addresses the ceremony, right? Not the underlying legal issues involving the marriage, right?
However, even if we parse that broadly, does that mean that if my wife and I move to Indonesia and in the course of time over there get divorced, then I move to Arizona, that if I remarry that I am committing bigamy?
February 17, 2010, 3:11 pmMalvolio says:
Sunday lyrics came late this week:
Karma police, arrest this man
He talks in maths
He buzzes like a fridge
He’s like a detuned radio
Now we’re inheriting things from an island? And an island that at the time of inheritance held three warring countries?
Yeah, this is all kinds of dumb. The problem that they’re trying to solve (activist judges digging up foreign precedents as persuasive authorities) exists, but it’s pretty small and isn’t at all solved by this nonsense.
February 17, 2010, 3:18 pmJust Dropping By says:
E. This section does not apply to:
* * *
2. A statute or any case law or legal principle that was inherited from Great Britain before the effective date of this article.
OK, as I think about this more, would the Wagon Mound decisions on negligence (which were included in my Torts class at a U.S. law school) be citable or not? They were decided by the British Privy Council, but on appeal from the Australian courts.
http://en.wikipedia.org/wiki/Wagon_Mound_(No_1)
http://en.wikipedia.org/wiki/The_Wagon_Mound_(No_2)
February 17, 2010, 3:19 pmMike S. says:
So if two parties enter into a contract that requires them to arbitrate disputes before a religious court of whatever religion they belong to, the AZ courts would not enforce the result of a religious panel as a binding arbitration?
February 17, 2010, 3:21 pmRoscoe says:
I don’t know, the statute says “[a]ny decision or ratification of a private agreement . . .” I think you would have a tough time getting the arbitration award enforced in an Arizona court.
If I was writing a contract with a choice of Sharia law provision, I would include a mandatory “anyplace but Arizona” venue provision.
February 17, 2010, 3:27 pmptt says:
I believe the word “recognition” covers your concerns.
I wonder what motivated this law. I did a teeny bit of Googling and found nothing but I’d better get back to work.
“Foreign” makes me wonder if immigration is the target or, more likely, capital punishment for children (pardon me, 13yo adults).
On the other hand, the inclusion of religious law is probably due to the “menace of sharia”.
And, finally, on the third hand, the explicit exemption of opposite-sex marriage is interesting, but I suspect it’s just practical and isn’t an indicator of motive. The Arizona Constitution already effectively bans recognition of same-sex marriages.
February 17, 2010, 3:28 pmMark Field says:
As a resident of CA, it makes my day to learn that our legislators are actually not the most ridiculous in the nation.
February 17, 2010, 3:34 pmThorley Winston says:
I have a problem with (C) as I often draft and negotiate contracts where the parties agree to follow a particular law or set of laws, some of which may be outside the United States. I actually think that that should be added to the list of “exceptions” by what is meant by “Foreign Law” for the purpose of this proposed statute. Other than that, I do not have a problem with Arizona or other States adopting the rest of this bill.
February 17, 2010, 3:35 pmmikeyes says:
3. “Religious Sectarian Law” means any statute, tenet or body of law evolving within and binding a specific religious sect or tribe. Religious sectarian law includes Sharia Law, Canon Law, Halacha and Karma but does not include any law of the United States or the individual states based on Anglo American legal tradition and principles on which the United States was founded.
Does this negate any tribal laws or traditions of the Native American population of AZ – assuming that there are relgious tenents involved in their making – since they were not based on the principles of the founding fathers (whatever they were?)
February 17, 2010, 3:35 pmCognitive Dissonance says:
So if I’m a judge and I want to use a foreign opinion as controlling or influential authority or (B.1) as the foundation for any legal theory (B.2) . . . then I’ll just pretend that I made up the theory myself and that the theory is sound by virtue of its own internal logic. Or something?
And what if I’m a judge and I come up w/ a new legal theory on my own, and — gasp — it resembles a theory found in foreign law? Can a party who gets an unfavorable ruling under my theory challenge the theory as being based on foreign law? That’s awesome. So awesome.
February 17, 2010, 3:41 pmBrett Turner says:
To the extent that this bill would prevent courts from enforcing a choice of law provision in a contract, opting for foreign law, could it not be attacked as an unconstitutional impairment of contract?
February 17, 2010, 3:56 pmBZ says:
This is most likely the beginning of a conversation, rather than the end. Note the extensive legislative findings. Arizona is no slouch when it comes to precise legal reasonings which seem to fly in the face of political correctness. See, e.g., Horne v. Flores, __ U.S. __, June 25, 2009 (upholding Arizona law requiring English language instruction in schools).
And Senator Pearce has a very good track record of both understanding the general sentiments of the people of his State (witness his several successful ballot initiatives/referenda) and how to accomplish very specific legal changes in controversial areas. See, e.g., Chamber of Commerce v. Candelaria, No. 09-115 (Chamber petitions for cert against 9th Cir. decision upholding against a pre-emption challenge an Arizona law denying business licenses to those hiring illegal immigrants).
February 17, 2010, 3:57 pmWht9 says:
1. A statute or any case law developed in the United States and its territories that is based on Anglo-American legal tradition and principles on which the United States was founded.
The Saints win the superbowl, but still Louisiana gets no respect.
February 17, 2010, 4:01 pmjpe says:
The page w/ the proposed bill looks like it was written by that TimeCube guy.
I guess I shouldn’t be surprised, given the content.
February 17, 2010, 4:06 pmGavin says:
Arizona has criminal adultery.
Canadians, has your ex moved to AZ and remarried? After this statute passes, please complain about the bigamist/adulterist to their DA.
February 17, 2010, 4:09 pmRandy says:
Well, the folks who say that our entire legal system is based upon Christian principles and the Bible might have a problem with this.
February 17, 2010, 4:20 pmyankee says:
Even if they weren’t based on religion, the statute defines the law of any “tribe” as “religious sectarian law.” The Arizona legislature is purporting to mandate that no court sitting in Arizona may apply the law of any of Arizona’s 21 federally recognized Indian tribes for any purpose. If a contract is entered into between Indians on an Indian reservation and specifies that it is to be construed under tribal law, the statute purports to require that an Arizona court must apply Arizona law, not tribal law. I know nothing about Indian law, so I have no idea if the Arizona legislature can do that.
February 17, 2010, 4:21 pmegd says:
I agree, if a state wants to get rid of it’s choice of law rules and eliminate those provisions in contracts, I see no reason why it shouldn’t be able to.
Many states already have limits on what law applies in certain contexts, so I don’t see how this is an unauthorized (albeit extreme) exercise of that power.
If nothing else, students seeking to take the Arizona Bar will have one less topic to study.
February 17, 2010, 4:26 pmMike says:
The sectarian religious law provision is likely unconstitutional. An individual enter into a contract that includes the content of a given religious rule, but not if the contract incorporates that rule by reference? That’s discrimination based on religion.
In other words, if the contract does not refer to halal, yet includes all the rules of halal (“Seller warrants that the food product does not contain pork,” etc.), then it is valid and enforceable. But if the contract incorporates those rules by reference to halal (“Seller warrants that the food product meets the standards of halal”) then interpreting the contract would require the judge to interpret religious sectarian law, and therefore the contract is essentially unenforceable. Could Hebrew National effectively do business in Arizona if this bill becomes law?
Arbitration is not an acceptable substitute. The Arizona government would still be closing access to the courts based on religion.
The rest of the bill is downright stupid, and a silly intrusion on freedom of contract. Imagine two Arizona corporations, A and B. A manufactures widgets, which it sells to B, which in turn markets widgets to the Japanese widget industry. B cannot sell the widgets if they do not meet relatively simple regulatory standards in Japan. In each sale contract, B wants A to warrant that all widgets will meet this regulatory standard. If this bill passes, corporation B should probably just leave Arizona, because business will get a whole lot harder.
February 17, 2010, 4:27 pmShelbyC says:
I wonder if you could put a more complex choice of law provision in:
All sections except this one shall be interpreted according to Sharia law.
February 17, 2010, 4:27 pmThis section shall be interpreted according to the laws of California.
Just Dropping By says:
Other than the possible federalism problem in paragraph (D), I don’t think the commenters are saying that the statute is unconstitutional or otherwise invalid, just that it’s stupid and will inflict far more collateral damage on the reasonable expectations of contracting parties than any purported “harm” that it would prevent. And I wasn’t aware that it was a manifestation of “political correctness” when parties put foreign choice of law clauses in their contracts.
February 17, 2010, 4:28 pmBored Lawyer says:
What does this bill do to choice of law issues. Suppose Arizona’s choice-of-law rules (I don’t know what they actually follow, but let’s say they follow a state interest rule, which most states today do) point to application of foreign law. Is that now barred.
Example. Citizen of Arizona travels to Mexico to a resort hotel, where he suffers personal injury, allegedly as a result of the hotel’s negligence. He sues in Arizona. (Let’s assume there is personal jurisdiction — maybe the hotel is part of an international chain which has hotels in Arizona.)
Usually, the law of negligence would follow the place where the injury took place, here Mexico. Is that now barred? So whose law applies? Arizona?
February 17, 2010, 4:28 pmThorley Winston says:
I think you’re right. This is the first bill that I have seen to address some of the concerns that many people have expressed about what they see as a growing improper encroachment of foreign law in American courts. Other than (c) which I’ve expressed my objections to, I think for the most part the authors made a pretty good distinction of when it should and should not be permissible.
February 17, 2010, 4:31 pmRealist says:
They see Aztlan coming and want to stop it.
A quick check of lexis shows that the judges who rule that illegals must get their pay checks after being deported all have south of the border names.
Does not take much to assume that those same classes of judges will obey the orders of the Mexican Counsel.
February 17, 2010, 4:33 pmyankee says:
Chris Travers and ptt—however, if a foreign jurisdiction permits self-uniting marriages or marriages officiated by an ordinary member of the public, then any such marriage is now invalid in Arizona. Only foreign marriages that are officiated by a member of the clergy or a secular “official” are valid.
February 17, 2010, 4:33 pmJust Dropping By says:
Clever, but in every jurisdiction that I’m aware of courts are supposed to decline to enforce choice of law provisions that would produce results contrary to the public policy of the forum.
February 17, 2010, 4:37 pmChris Travers says:
Good question, but AFAIK, it is Constitutionally protected speech to label a ham and cheese sandwich as “kosher” so it is probably just as well to spell it all out.
February 17, 2010, 4:44 pmBored Lawyer says:
Another question: Does this effect agreements to arbitrate or choice of venue agreements? Suppose two parties to a contract agree that any disputes arising out of the contract will be arbitrated or litigated in a particular venue (foreign country, religious court). Could an Arizona court enforce such an agreement? Suppose the parties went ahead with the litigation or arbitration before the foreign or religious court. Would an Arizona court enforce its decision?
(As to arbitration, the Federal Arbitration Act might pre-empt this. As for religious courts, there could be decent Free Exercise argument.)
February 17, 2010, 4:45 pmjbeuks says:
So where would this leave the principle that courts defer to a church’s canon law when determining disputes internal to the church? For example, the internal divisions in the Episcopal Church have led to litigation in many states about whether church property belongs to the transitory majority of a particular congregation that have left the EC and affiliated with the Anglican Church of Uganda (or Argentina). Under the church’s canon law, such property belongs to the Church itself, not to the individual parish or its members, and most (but not all) states defer to canon law on the question. This proposal would seem to prohibit such a result. Or what if someone files a suit claiming that he, and not the person appointed by the Pope, is the bishop of the Roman Catholic Diocese of Phoenix? Are the Arizona courts going to be required to resolves that dispute according to AZ secular law, because they are forbidden by this proposed law to take account of canon law giving the Pope the exclusive authority to appoint bishops?
Altogether a truly stupid proposal.
February 17, 2010, 4:54 pmJust Dropping By says:
I’d say that under this statute choice of law rules would effectively evaporate at the US border and the court would have to apply Arizona law. (I’ll note that I don’t think there’s anything that constitutionally prevents a state legislature from enacting statutes establishing choice of law rules that are contrary to common law choice of law rules.)
February 17, 2010, 4:55 pmThorley Winston says:
I don’t get it, are you saying that if an employer agrees to pay an employee for work that they perform that they should be able to get out of their obligations to do so because of the unlawful immigration status of the employee?
Sounds like a case of “unjust enrichment” to me.
February 17, 2010, 4:55 pmCheckEnclosed says:
It looks like this statute would also bar reference to foreign decisions applying U.S. law, since those would be “case law … from another country or a foreign body or jurisdiction that is outside of the United States and its territories.”
February 17, 2010, 4:58 pmzuch says:
New DVD for sale:
“Exceptionalism Gone Wild!!!”
Quadruple-X rated.
Cheers,
February 17, 2010, 4:58 pmBored Lawyer says:
I think your interpretation is correct. And it is probably Constitutional, although why you would discriminate between foreign countries and other states seems irrational. (Take my injury-at-a-hotel example. If the hotel were in, say, New York, NY law would still apply. But if the hotel is in Mexico, then this statute bars application of Mexican law, so presumably Arizona law would apply. Seems like an arbitrary result.)
February 17, 2010, 4:59 pmJust Dropping By says:
My thoughts regarding the impact on arbitration were expressed above. I don’t think this would affect the enforceability of a forum selection clause though, because the court could determine that purely by reference to Arizona law and thus wouldn’t be making any “decision or ratification” requiring the judge to rely “on any body of religious sectarian law or foreign law.” (Assuming there’s an Arizona Supreme Court decision stating that forum selection clauses are generally enforceable.) I wouldn’t be surprised though if someone tried to argue that forum selection clauses that would have the effect of allowing religious/foreign law to be applied should be deemed to be void as against public policy.
February 17, 2010, 5:01 pmloki13 says:
HA! Again, with the funny. When all you have is a hammer, every problem looks like a nail.
Interesting issues that I see (in addition to the glaringly obvious and stupid problems pointed out by EV and other commenters):
1. How does this intersect with SCOTUS and the constitutional analysis of Choice of Law under due process and full faith and credit? (Yes, I know those two get collapsed, but I tend to agree with J. Stevens that they are disparate analyses)
2. On a more meta level, this brings up some fascinating issues when other states apply their choice of law and look to Arizona law. Ouroboros comes to mind.
February 17, 2010, 5:05 pmloki13 says:
I think I’m going to post a little more substantive response to Thorley’s comment, as “HA!” doesn’t really delve into the issue (although it does express my general sentiment).
There is this ongoing fantasy among certain types, generally not well-versed in the legal profession, that there’s this furriner law that’s coming in and corrupting our good ol’ American law. To anthropomorphize it a little, it’s as if they’re all afraid of some French guy, with his Gauloises danglin’ from his lips, wine in one hand and baguette in the other, skinny jeans perched precariously on his hips, and his voice whispering “Je t’adore” in the ears of our chaste American Law’s little ears. And somehow, this spectre has been transmogrified into an eerie presence that has infected all of courts, great and small, so soon ur traffic tickets will be measured in kilometers per hour.
But this is not the case.
Yes, there are those occasions when the Supreme Court looks at foreign law as instructive, as other courts have grappled with similar issues, in the same way that a court in Vermont might look at the law of Idaho when dealing with a novel legal issue involving potatoes. And there is the more controversial area where the Supreme Court has looked at worldwide standards (and laws) when contemplating what the appropriate standard for “cruel and unusual” is. But this ha no bearing on the daily lives of judges in state courts.
State court judges do use foreign law regularly. But they don’t use it wax poetic like a modern day Hamlet (paging J. Kennedy). They use it for the mundane tasks they have always used it for- to handle choice of law problems (tort occurred in Canada); to deal with contractual issues (contract says apply law of United Kingdom); to determine child custody (divorce decree entered in Guatemala). This is how things work, and, well, how they are supposed to work .
So this is what we have- a problem which is (in my opinion) greatly overblown. But even if you think it’s a real and present danger, then the audience for the problem (SCOTUS) isn’t affected by this bill, and the actual damage done by this bill is great… and, well, comical.
February 17, 2010, 5:29 pmShelbyC says:
Huh. Since the exception applies to marriage, but not to divorce, it would appear that anybody who has married and divorced in a foreign jurisdiction is still married, as far as AZ is concerned.
February 17, 2010, 5:41 pmleo marvin says:
The whole thing made me laugh so hard I nearly upchucked my Freedom Fries.
February 17, 2010, 5:49 pmDNJ says:
That is an interesting question. The cases were decided by Her Majesty in Council (the Privy Council). I think it is clear as a matter of British and Australian constitutional law that Her Majesty was acting as Her Majesty The Queen in Right of the United Kingdom, not Her Majesty The Queen in Right of Australia. However, the statute on its face seems to prohibit looking at British and Australian constitutional law to determine whether a decision falls within the exemption. You can look at British law that falls within in the exemption, but you can’t look at British (or Australian) law to determine whether it falls within the exemption.
I think these cases would probably fall within the exemption, but the matter is complicated by the fact that not only were the cases on appeal from the Australian courts but they are not binding precedents in Britain (except to the extent they have been incorporated by other decisions – which they have been), but are binding in Australia and certain other countries that the Privy Council was the final court of appeal for.
February 17, 2010, 5:51 pmDNJ says:
I don’t think there is any Free Exercise (or Establishment) problem with the statute. But what about when an Arizona court is considering a federal constitutional issue? If the judge considers that it is necessary or proper in interpreting the constitution and resolving the issue to refer to foreign law to which reference is prohibited by the statute, or Supreme Court precedent indicates the reference to such foreign law is necessary or appropriate to resolve such an issue, wouldn’t the application of the statute in such circumstances raise Supremacy Clause problems?
February 17, 2010, 5:58 pmDavid Newton says:
Many of the choice of jurisdiction clauses which this rubbish would purport to outlaw are based on international conventions to which the US is a party. That immediately torpedoes a lot of the law. As others have said the full faith and credit portion of the US constitution also puts paid to a lot more of the law. There are also questions as to whether the restriction of application of religious law to disputes based on religion violates the first amendment.
This law is largely doomed to failure and has been drafted by a people who are pandering to a small group of insular extremists who should not be listened to.
There are real issues where judges are citing foreign cases as controlling authorities where they should not be. It happens in a great many jurisdictions. However the number of times it really is a problem is vanishingly small in comparison to what those who support this law contend. This law is not only a sledgehammer to crack a nut, but a sledgehammer with such a bias that it will inevitably hit the wielder on the foot when swung.
February 17, 2010, 6:05 pmjcm says:
Under the public order principle no ccivil law country would apply sectarian law like sharia or cast system prohibitions. Burt foreign law is usually applied in the realm of international private law ( As Story´s called it) or conflict of laws as you call it. Anyway there are many theories looking to avoid it: fraud of law, fraud to the law, public order , reenvoy. An is not an american thing, the story seems to be fake but an english lawyer said that” Hamburg could be in Germany but this Court doesn’t know it”, and claimed jurisdiction.
February 17, 2010, 6:19 pmSo they are not silly and they are not alone. Still, the Constitution says (or im wrong) :
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land. I guess the USA has ratified some Private International Law treaties so those are part as the Law of the Land
Chris Travers says:
And I suppose it requires recognizing the marriage. But does it require recognizing the permanent resident status and spousal visa since these are based in substantial part on foreign law?
February 17, 2010, 6:20 pmMarc says:
Does this mean that if someone commits a crime in Mexico, he cannot be extradited from Arizona, because Arizone does not recognize the crime? (or is extradition always federal.?)
February 17, 2010, 6:30 pmMichelle Dulak Thomson says:
Thorley Winston (responding to Realist),
I don’t get it, are you saying that if an employer agrees to pay an employee for work that they perform that they should be able to get out of their obligations to do so because of the unlawful immigration status of the employee?
Sounds like a case of “unjust enrichment” to me.
To me, too. Realist, are you arguing that if you hire someone to re-roof your house, and the roofer is shortly afterwards deported, you don’t have to pay him for the work? I’d think anyone could see the potential for exploitation there, not just judges with “south-of-the-border” surnames.
February 17, 2010, 6:38 pmThorley Winston says:
Considering that the law specifically excludes situations involving properly ratified Treaties, I’m not sure how that “torpedoes” the law. It seems to me that was part of the intent of the people who wrote it.
The “Full Faith and Credit” clause of the Constitution applies to States not foreign countries. AFAIK, barring a properly ratified treaty to the contrary, the Constitution doesn’t require the States to give full faith and credit to the case law of foreign countries.
Why? The proposed law doesn’t favor one religion over another and I don’t believe that the First Amendment requires State courts to apply religious laws as opposed to secular laws in cases involving “religious disputes.” If anything, adopting such an approach is probably less problematic as it makes it less likely that the courts tread down the path of making religious value judgments.
February 17, 2010, 7:17 pmreadery says:
This statute doesn’t seem to be at all based on the Anglo-American principles of law on which this country was founded. Our nation’s foundational principles of Anglo-American law long recognized comity between nations and long permitted the use of foreign law and choice of law clauses in international and other private contracts. Moreover, one of the founding principles of our nation, a component of the First Amendment, is that religious sects can make and arbitrate agreements within or among themselves based on religious law, and secular courts will recognize religious tribunals’ decisions on religious matters.
Arizona is undeniably an individual state. Accordingly, this statute falls to meet the definition of “any law of the United States or the individual states based on Anglo American legal tradition and principles on which the United States was founded” and hence is not such a law.
Moreover, this law on its face purports to be binding on religious sects and tribes. It is clearly intended to be binding on how courts apply contracts by religious bodies and their ability to enforce decisions of religious arbitrators.The law contains no clause or language even hinting that it isn’t intended to be applied to or be binding on religious sects and tribes within Arizona.
Therefore, this statute fits squarely within the definition of “religious sectarian law.” It is a statute, intended to be binding on religious sects and tribes, which is not based on the Anglo-American legal tradition and principles on which the nation was founded.
Because of this, if the bill passes, it would appear to be the clear obligation of Arizona judges to not to give this religious sectarian statute any enforcement whatsover. Any judge who attempted to enforce this statute would, by its own terms, be subject to impeachment and removal.
In addition, the regulation of foreign judgments clearly interferes with both the Clause Clause and with the Treaty power. The treaty power has long included commercial treaties, and commercial treaties have long addressed choice-of-law matters involving which tribunal would resolve disputes and which source of law would be used in commercial relations between the treating nations. A state’s decision to make all legal disputes subject to its own laws and prohibit other choice-of-law arrangements would appear to interfere with the treaty power.
It is one thing for a state to articulate specific public policies which its judgements are prohibitting from contravening; Arizona is not obligated to recognized arranged child marriages and the like. But it’s quite another for a state to prohibit use of foreign law for no other reason that it’s foreign. The latter goes beyond the concept of public policy as traditionally understood. This is what Arizona seems to be contemplating.
February 17, 2010, 7:18 pmepluribus says:
Actually, it’s not. Arizona is facing a massive budget shortfall, and after more than a year of wrangling the Legislature is still unable agree on any method to deal with it. State employees are being laid off. I was in the main library at Arizona State University today. There are no reference librarians, no staff in the photocopy room, no staff in the microcopy room. Many new books from university presses are not being purchased for the library, due to shortage of funds. If I were not posting here under a fictitious name, I would be embarrassed to admit that I live in Arizona.
February 17, 2010, 7:25 pmMartinned says:
I guess you could make a non-frivolous ex turpi causa argument.
February 17, 2010, 7:26 pmPhil says:
Arizona know nothings: bad for business and kinda whacko. Amusing.
February 17, 2010, 7:31 pmreadery says:
They do all the time, and should. Sharia includes a body of commercial law which includes some ideas and details different from American law, but a number of countries with which the United States does business use its principles as a basis for resolving commercial disputes. And many of its components are perfectly ordinary. We’ve had commercial treaties with Moslem powers permitting some disputes to be resolved using foreign law since practically the founding of the Republic. Why should a state be permitted to interfere with those treaties simply because its legislators don’t like foreigners and foreign practices? The possibilty that such provincialism would arise is one reason why foreign relations including commercial relations were made a national rather than a state matter.
February 17, 2010, 7:32 pmArizona Bill to Bar Use of Foreign and Religious Law | Liberal Whoppers says:
[...] Arizona Bill to Bar Use of Foreign and Religious Law [...]
February 17, 2010, 7:32 pmepluribus says:
I wonder if this would apply to community property law, which derives from Spanish (and before that civil) law, not from Anglo-American or common law traditions or marital property. Arizona is a community property state. Would this bill have the effect of negating that?
February 17, 2010, 7:49 pmBill Raftery says:
Those of you who are interested, Oklahoma’s House has a similar bill that made it out of committee last week.
Details here.
February 17, 2010, 8:08 pmgrog says:
A bit off-topic, but for those talking about how stupid this is, a South Carolina rep is out to make Arizona look brilliant in comparison by proposing to ban federal currency and move to gold and silver coinage.
February 17, 2010, 8:10 pmR Gould-Saltman says:
Sez jpe:
“The page w/ the proposed bill looks like it was written by that TimeCube guy. I guess I shouldn’t be surprised, given the content.”
Yeah, and the fact that the house bill page is titled “Format Document” isn’t overwhelming me with anyone’s tech skills either..
February 17, 2010, 8:14 pmreadery says:
Additional note – “religious sectarian law” only applies religious laws which “evolve” within a religious body. If a religion can show that a law never evolved – it was always that way since the religion started – does the definition not apply?
And if so, does this law establish a preference for religions with non-evolving religious law – the traditionalist or rigid/fundamentalist sort, depending on ones viewpoint – over religions whose laws have evolved with social conditions? Would this create Establishment Clause problems? Similarly, how much of the code had to have been “within” the religion? Are religions whose laws evolve by borrowing ideas from outside not covered but religions whose laws evolve “within” included? Does this establish a preference for religions which borrow ideas from outside over religions which look only inwards for answers?
February 17, 2010, 8:47 pmBruce Hayden says:
It has been a decade since I sat for the bar there, but my guess is that community property is statutory, and, thus, presumably exempt from this.
February 17, 2010, 8:51 pmBruce Hayden says:
Answering my own question, community property is covered in ARS Title 25, and in particular, Chapter 2 thereof.
February 17, 2010, 8:56 pmAlan says:
If American judges are using foreign law as a justification to deprive American citizens of the right to vote on certain issues we think important, that to me is a sufficient ground to prohibit citation to foreign law. Granted, this law won’t stop the federal Supreme Court from forcing even more foreign law down our throats, but just in case the state courts become even more liberal than the U.S. Supreme Court is (either in general or with regard to certain discrete issues), this should at least prevent state-court judges from forcing state lawmakers to adopt the positions taken by the Supreme Court of Zimbabwe, or the French government, or whatever other foreign authority Stephen Breyer thinks of as having better moral standing than the place we used to call God’s country.
February 17, 2010, 9:05 pmMartinned says:
WTF are you talking about???
February 17, 2010, 9:18 pmDave says:
My goodness. It’s as though “consent of the governed” actually meant something.
February 17, 2010, 9:41 pmbarracuda says:
Maybe Arizona should just secede!
February 17, 2010, 10:19 pmMark Field says:
I’m not so sure. Maybe this is ok under Smith, but it sure seems to infringe on free exercise in ways readery has pointed out. It may very well also interfere with foreign commerce, since commercial choice of law provisions are common there.
February 17, 2010, 10:29 pmBlue says:
I wonder what this legislation would do to Spanish/Mexican era land titles?
(By title, of course, I mean the real property title detailing the owner of a particular plot of land.)
February 17, 2010, 10:41 pmepluribus says:
My understanding is that a statute can be amended/repealed/superseded by another statute. Further, the Arizona bill purports to apply to statutes, viz:
It’s all ludicrous, of course, but it is at least morbidly interesting to discuss the particulars of its ludicrosity (is that a word?).
February 17, 2010, 11:02 pmPeter Gerdes says:
Hmm, I wonder if one couldn’t drive a truck through the exception E.1. I mean you want to interpret some piece of foreign law to enforce a contract…just find a good old US precedent saying that one should decide based on that foreign law and you’re golden. After all E.1 is an exception to the above and interpreting it to give it real force requires we assume that some things otherwise barred by the earlier sections but not excepted by E.2 or F are allowed. Thus it would seem it must be acceptable to apply foreign law if so required by US precedent as otherwise the exception E.1 is an empty exception.
—–
As far as constitutionality goes this seems to have serious separation of powers issues (I assume the AZ constitution also provides for some degree of separation of powers). I mean this legislation doesn’t in principle differ from a law purporting to tell the court it could not consider free speech when hearing campaign finance legislation.
The legislature (assuming AZ is mostly like the federal government) has the power to pass laws. It could pass laws giving the rules under which contracts were to be construed but this goes beyond that and purports to dictate not only what rules the judges must apply but how they must go about the judicial process.
February 17, 2010, 11:07 pmyankee says:
I actually wonder if this statute is constitutional. Arizona’s constitution provides that the government shall be “divided into three separate departments, the legislative, the executive, and the judicial; and, except as provided in this constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.” Ariz. Const. Art. III. Under this clause, does the Arizona legislature really have the power to tell the Arizona courts what authorities they may or may not find find persuasive?
February 17, 2010, 11:15 pmA. Cooper says:
Politicking. One legislator gets this bee in his bonnet, and if anyone votes against it, the ads write themselves: “Representative X voted to have foreign laws control Arizona courts!”
February 17, 2010, 11:28 pmAlan says:
What are you, kidding me? You’re seriously saying that you actually don’t know about this whole big controversy and where it came from?
February 17, 2010, 11:28 pmChris Travers says:
The right to collectively kill children?
(No, not abortion. Capital punishment and minors….)
February 17, 2010, 11:30 pmMartinned says:
Every time a court rules, it fixes the law in a way that could have been done through a vote. Even after we recognise that the Constitution forbids bills of attainder, and generally limits the courts to their judicial function, that still leaves a whole lot of “competition” between the courts and the political branches. That can be fixed by abolishing judicial review, but I don’t think that’s an option. I’m not sure that any of this can reasonably be described as “depriv[ing] American citizens of the right to vote on certain issues”, though.
February 17, 2010, 11:52 pmkiwi dave says:
This is depressing. It seems to me that there is an interesting correlation between America’s declining relative position in the world and the more ludicrous manifestations of American exceptionalism.
February 17, 2010, 11:53 pmJLan says:
You’re probably better off defining a body or specific rules to determine whether or not it’s halal. Case in point: Most of the major kashrut organizations in the US do not supervise or approve of non-glatt meat, so they would not consider Hebrew National kosher. On the other hand, if you specified kosher according to the Triangle-K’s decision, then Hebrew National would be approved. If you specified kosher according to the OU’s decision, Hebrew National would not be acceptable, but many other things would be.
February 17, 2010, 11:58 pmAlan says:
Holding, say, the death penalty unconstitutional for a monster like Christopher Simmons, or holding it unconstitutional to execute someone who has spent a very long time on death row (as Breyer et al. would do), or holding anything unconstitutional in part because other countries don’t allow it, disenfranchises the American people as to those issues by prohibiting them from voting on the issue.
If you’re saying that the American people haven’t lost that right because they can overturn the decision by constitutional amendment, way to point out a completely meaningless remedy. Without a usurpatious decision constitutionalizing the policy preferences of the United Nations, the American people could have their way much more easily, in the way the Constitution contemplates–by letting them decide the issues through their state representatives, and not force them to get thirty-eight states to go the same way on a constitutional amendment in reaction to a ruling, just to restore their right to choose to vote on the issue on a state-by-state basis.
February 18, 2010, 12:29 amNathanM says:
How would this impact enforcing foreign judgments in Arizona? The definition of “Foreign Law” is restricted to bodies of case law, and so presumably would not include a single foreign decision. B., on the other hand, says a court cannot “use, implement, refer to or incorporate any case law … from another country”. Is Arizona’s plan to fill its empty houses by becoming a haven for judgment debtors?
If Arizona courts can’t recognize and enforce foreign judgments but have to comply with treaties the US has entered into it would create inconsistencies in the law. For example, the Hague Convention (to which the US is a party) requires a jurisdiction into which a child is wrongfully removed to follow a decision from the court in the jurisdiction in which the child is habitually resident. If an Arizona court can’t enforce an Australian decision, how does it deal with a case where a child habitually resident in Australia is wrongfully removed into Arizona?
February 18, 2010, 1:48 am2 cents says:
I think Peter Gerdes hit the nail on the head. Seems like an unconstitutional intrusion on the judiciary by the legislature.
If my sense is right, what then of the impeachment provisions. Would the violation still give rise to impeachment? Or is that a separate issue (i.e., could the State Senate or whatever body is responsible for impeachment of judges still exercise its own authority to do this anyway)?
All the serious analysis aside, what a bunch of goofballs!
February 18, 2010, 2:29 amDavid Newton says:
I say that the international conventions torpedo this law because it appears to be trying to stop the use of foreign law to settle contract disputes, amongst other things, and properly ratified international conventions preclude it from applying. Section C appears, on the face of it, to stop virtually all choice of jurisdiction clauses from applying in Arizona. In reality the exception for international conventions robs that section of almost all of its force in contract law, making it little more than a sop to the insular extremists I referred to in my previous posts. When applying other things like family law cases there are also ratified international conventions which have similar effect.
The full faith clause of the US constitution has a similar effect because when dealing with marriage, and many other aspects of family law the other 49 states extensively cite and rely upon foreign law when considering acts undertaken in those foreign countries. For example a polygamous or polyandrous marriage would be illegal in the US as bigamy. However there are quite a few jurisdictions where such marriages are perfectly legal, and if a person comes to the United States in a polygamous marriage and resides in any state besides Arizona when problems occur then those states will rely on the law of the jurisdiction where the polygamous or polyandrous marriage took place to decide if it was valid in that jurisdiction. If the person in question then moves to Arizona, under the full faith clause the Arizona courts will be required to respect the rulings of courts in other states which use foreign law as a precedent. Again the law looks like it does something big and strident, but is robbed of much of its force by contrary drafting and a binding superior document (the US constitution).
The first amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” and the fourteenth amendment has been found to incorporate the first amendment as binding on each state. This statute purports to restrict the application or religious law to purely religious disputes, and it also purports to restrict marriages by the exception, “The recognition of a traditional marriage between a man and a woman as officiated by the clergy or a secular official of the matrimonial couple’s choice.” That is treading dangerously close and quite probably over the line of “prohibiting the free exercise” of religions. This does not affect the application of the statute nearly as much as the ratified international conventions on choice of jurisdiction clauses in contract law or the full faith clause of the US constitution. Nonetheless it is a further example of sloppy drafting and a poorly thought-out law.
If this law does make it onto the statute book in Arizona it will most likely be almost completely neutered by a challenge to its constitutionality. I have no idea if it will pass muster under the Arizona constitution, but there are substantial problems with its validity under the US constitution.
February 18, 2010, 5:50 amepluribus says:
This bill is an example of Know Nothingism in American politics. That was a movement that was directed against immigrants. Immigrants are by definition foreigners. In the 19th century, the immigrants were mostly Catholics, first Irish and Germans, later Italians and eastern Europeans, so the movement was aimed against them. A significant number of Know Nothings joined Whigs in forming the Republican Party in the 1850s. Lincoln opposed the Know Nothing philosophy but was willing to accept the support of the Know Nothings for the policies that he supported. Know Nothingism was never a dominant force in the Republican Party, but it has survived to live another day in the 2000s. Those Supreme Court justices who rail against “foreign law” in Supreme Court decisions are (consciously or unconsciously) feeding the movement. It is at least partly ironic that Scalia should be a leading proponent of this philosophy on the Supreme Court. In the 19th century, he would have been detested by the Know Nothings, for he is a Catholic of Italian ancestry and not truly American in their very restricted views.
February 18, 2010, 7:07 amMike McDougal says:
I wouldn’t be so sure about that. Arizona is just trying to catch up.
February 18, 2010, 9:25 amMike McDougal says:
I am lawyer in Phoenix. While your question is interesting, my first response from a pragmatic perspective is “who cares?” For instance, Arizona has lots of cases like these: Phoenix Professional Hockey Club v. Hirmer, 502 P.2d 164, 165 (Ariz. 1972) (“The tort-feasor should be held responsible for the natural and probable consequences of his wrong.”); Ritchie v. Krasner, 211 P.3d 1272, 1282 (Ariz. App. 2009) (“A jury may find proximate cause between the defendant’s act and the plaintiff’s injury if the plaintiff’s injury was a foreseeable consequence of the act.”) (citing Dan B. Dobbs, The Law of Torts 447-53 (West Group 2000)).
February 18, 2010, 9:46 amJust Dropping By says:
That’s a very interesting point and not completely hypothetical. The Colorado Supreme Court’s decision in Lobato v. Taylor, 71 P.3d 938 (Colo. 2002), which concerned a title/access rights dispute relating to property that was originally part of an 1844 Mexican land grant, specifically noted that Mexican law (as it existed in 1844) was relevant to determining the scope of rights attached to the land because the conveyances made after the Treaty of Guadalupe-Hidalgo continued to state that they were subject to “claims of the local people by prescription or otherwise to right to pasture, wood, and lumber and so-called settlement rights in, to, and upon said land.” Would the Arizona statute create a takings problem if it has the effect of wiping out somebody’s title to land that would have otherwise been valid under traditional choice of law rules?
February 18, 2010, 11:16 amJust Dropping By says:
Undoubtedly so. I was simply using the Wagon Mound cases as an example because (a) they are relatively recent (1960s) foreign decisions that are occasionally cited by American courts; and (b) the jurisdictional posture of the cases (Privy Council in Great Britain hearing appeals from Australian courts) illustrates the ambiguity/ignorance of paragraph (E)(2) of the statute, which states: This section does not apply to: * * * A statute or any case law or legal principle that was inherited from Great Britain before the effective date of this article. The Wagon Mound cases pre-date the effective date of the statute, but are they from “Great Britain” or not? Please note that your answer to this question (if you’re an Arizona judge) may be punishable by impeachment if whatever Arizona government body hears impeachment cases decides that you got it wrong.
February 18, 2010, 11:30 amNedLudd says:
I don’t see anywhere that the bill prohibits freedom of contract or changes the choice of law rules.
“C” refers to the judge relying on foreign law to “decide or ratify”. I don’t see how it prohibits the parties from agreeing on anything, including English Law. If there is a dispute about religious law, a judge should not be addressing it in the first place.
I’m not saying the bill isn’t ill-advised. But it’s not as stupid as the comments make out.
February 18, 2010, 11:59 amJust Dropping By says:
Interesting, but that seems like an incredibly tortured reading of the bill since, even if a contract contains a choice of law provision agreed to by the parties, it is still the judge who is “deciding” the case or “ratifying” the contract based on the law, not the parties. Indeed, the specific prohibition on “ratification of a private agreement” by referring to foreign law looks like an explicit attack on choice of law clauses. (Note also that a judge has to gamble with being impeached merely to test your theory of the law.)
February 18, 2010, 12:47 pmDavid Newton says:
The bill does not prohibit such clauses. However it purports to make them void for unenforceability due to its prohibition on judges ruling using the law which such clauses operate under. Such voidings are typically only proper when there is a real public policy issue at stake such as minors trying to enter into a contract without a guarantor or where there are boilerplate agreements which impose unreasonable conditions on consumers who have no possibility to negotiate the terms of the contract.
Ultimately if there is a dispute under contract law then it is a court which decides how the contract is to be applied, or whether it applies or whether it or portions of even exist in fact and/or law.
February 18, 2010, 3:41 pmDNJ says:
Actually the Supreme Court of Zimbabwe had a very good reputation (I think Mugabe may have managed to stack it now). It stood up for human rights against the Mugabe regime. Its jurisprudence on the “death row phenomenon” (i.e. the length of time prisoners spend on death row) is influential and well-regarded. Justices Stevens and Breyer have cited it in dissents from the denial of certiorari urging the Court to take up the issue.
February 18, 2010, 3:56 pmThales says:
With regard to part (C), one might be able to circumvent it contractually by choosing the law of another state of the United States that does in turn allow a choice of foreign law. Then the AZ court enforcing such contract is merely enforcing the law of the state of NY (or whatever foreign law-importing state one likes); indeed if the AZ court fails to do so, it is likely violating Article IV of the federal constitution.
Of course, the proposed statute is uncommonly stupid, and a solution in search of a problem.
February 18, 2010, 5:05 pmuberVU - social comments says:
Social comments and analytics for this post…
This post was mentioned on Twitter by gabrielmalor: A stupid law: AZ bill would bar courts from considering foreign or religious law. http://is.gd/8B9Ge #tcot…
February 18, 2010, 5:07 pmSandy MacHoots says:
My guess is that this would run afoul of the Federal Arbitration Act. States don’t have the power to pick and choose which arbitration clauses they like; a preference for their own domestic law isn’t a valid reason not to enforce an arbitration agreement. Moreover, the U.N. Convention on Contracts for the International Sale of Goods (a U.S. treaty) expressly permits parties to choose foreign law, which would also trump the Arizona provision, at least in international sales. Presumably you could also get around the provision by providing for venue only in some other U.S. state. An Arizona court recognizing a choice-of-forum clause would not be relying on “foreign” law.
February 18, 2010, 5:08 pmAlan says:
So, because he’s a Catholic of Italian ancestry, he should have a certain philosophy about judging? Wow. That is so inappropriate I’m impressed.
What about Clarence Thomas? What kind of judge do you think he should be on account of his being black?
The opposition to citing foreign law isn’t bigoted, and your use of vile, loathsome demagoguery–classing as bigots those who don’t agree with your position on this issue–doesn’t prove otherwise. Foreign law shouldn’t be cited because it’s irrelevant. When lots of other countries pass laws prohibiting this or requiring that, that has absolutely no relevance to what the American Constitution means.
February 18, 2010, 5:56 pmepluribus says:
I’m not saying he should have a certain philosophy about judging. It so happens he does have a certain philosophy about judging. Among other things, that philosophy includes the strong belief that foreign law shouldn’t be used by American courts. As for the relevancy or irrelevancy of foreign law, have you perhaps read any of the preceding posts in this thread?Your use of the words “vile,” “loathsome,” and “demagoguery” says a whole lot more about you than it does about either me or Justice Scalia.
February 18, 2010, 7:08 pmloki13 says:
Now that’s my smile of the day! Really, most of the time, I just get a little sad and depressed when I read through the comments at the general lack of acumen. But when this lack of self-awareness comes packaged in such a camp, over-the-top rehetorical flourish like this? High comedy!
I recommend developing a stand-up routine. Maybe with puppets.
February 18, 2010, 7:42 pmleo marvin says:
Do you really think anything could be more liberal than the current U.S. Supreme Court? I mean, if there are nine more liberal wackos somewhere, I’d like to see them. Wouldn’t you?
February 18, 2010, 9:40 pmDavid Michael Cantor – Arizona DUI Lawyer & Criminal Defense Attorney says:
Thanks for the interesting and informative post. I look forward to more in the future.
February 18, 2010, 10:53 pmDavid Michael Cantor – Arizona DUI Lawyer & Criminal Defense Attorney says:
Thanks for the interesting and informative post. I look forward to more in the future.
February 18, 2010, 10:53 pmSammy Finkelman says:
Since community property was enacted by the legislature of Arizona, the answer would be no.
Section E1 seems to exempt certain kinds of America statutes and case law from this law, but no American law or statute is ever covered by the law in the first place in Sections A and B.
There is a problem with any private agreement that references foreign or religious law.
February 19, 2010, 12:14 amAlan says:
Since you’re the one who compared Justice Scalia’s position to Know-Nothingism, you don’t get to complain about the words I used in response to your tarring his side of this issue with bigotry, or act like the rest of your analysis somehow redeems your Jesse Jackson tactic.
February 19, 2010, 12:22 amAlan says:
And thus was exposed the flaw in my argument. Good going, genius!
February 19, 2010, 12:23 amAlan says:
Well, let’s look at what the Supreme Court has done, shall we?
Conservatism on economic or property issues–zero.
Liberalism on social issues, whether in the area of the First or Fourteenth Amendment–substantial.
February 19, 2010, 12:25 amAlan says:
Yeah, and you think that his philosophy shouldn’t include that belief, in part because he’s a Catholic of Italian ancestry.
February 19, 2010, 12:44 amRich Rostrom says:
That this bill was submitted doesn’t necessarily mean very much.
Rep. Dennis Kucinich once submitted a bill that would (among other things) ban “psychotronic weapons”.
The number of sponsors is potentially alarming; however, only 4 are sponsors, the other 11 are cosponsors, and none are in any leadership position.
February 19, 2010, 1:25 amepluribus says:
Not at all. I am suspicious of (not opposed to) that belief because it is narrow-minded and xenophobic, because it ignores the realities of the United States and the world, and because it attempts to impose on the U.S. Constitution an ideology that is foreign to the document and to American history. The proposed Arizona statute is emblematic of the dangers of such a belief. The fact that Scalia is a Catholic of Italian ancestry merely adds irony to his support for that belief.
February 19, 2010, 6:28 amR. Allen says:
Some more commentary here –
http://www.95years.com/2010/02/18/legislators-attempt-to-bar-foreign-and-religious-law-from-arizona-courts/
February 19, 2010, 9:37 amPearl says:
This is a great site. I enjoyed the comments, especially those of legal professionals.
As a ‘lay person’ and senior, I have three questions:
1. Is it possible for a Canadian Provisional Order for spousal support to be ‘confirmed’ in an Arizona Superior Court?
2. If so which Statue?
From my limited experience it is not possible, because Canada is a ‘Foreign Country’.
For me this means that a contract that was made in a Canadian Court is not respected.
We live in a global village. Folk move around today.
Does this mean that Arizona can become a ‘haven’ for those that are escaping the law of other countries.
There is a need for ‘all’ to be more universal in thought and deed.
No country or U.S. state can isolate themselves from the ‘rule of law’. To do so is ‘madness’ and self-destructive.
Respect and understanding of Foreign Laws is a gift that will be reciprocated.
‘We may all learn something!
‘Treat others the way you wish to be treated’.
February 19, 2010, 11:05 amRikiTiki says:
I guess I’m confused in what context an Arizona court would be hearing an immigration issue. Immigration courts are under the EOIR and are federal administrative courts. State courts would not be hearing immigration issues. So if an immigrant’s adoptive status turns on the law of his country of origin, the only court that would be hearing it is one that would presumably not be subject to this law.
February 19, 2010, 12:22 pmPubliusFL says:
Not an immigration issue, a family law issue involving immigrants. Say a child custody case where the parties are a natural parent and the natural parent’s estranged spouse who claims to have completed a stepparent adoption in country x. The rights of the second party may well depend on whether the claim of adoption is true, and you can’t tell whether the claim of adoption is true without looking at the adoption law of country x.
February 19, 2010, 12:40 pmAlan says:
And that says a lot more about you than it says about anyone or -thing else. It says that you, like Al Sharpton, Jesse Jackson, and other despicable characters, hurl accusations of bigotry at the drop of a pin.
February 19, 2010, 6:26 pmNedLudd says:
Since so many of the posters here are lawyers it seems the comments usually trend toward picking (verbal) fights. I don’t really understand the snottiness. This is a bill that addresses a legitimate issue, viz., courts relying on foreign law in opinions. Saying that the 8th Amendment is violated because of what Europeans think bothers many Americans, including some Supreme Court Justices. Any fair-minded person would see in an instant that that type of thing is the target, not the Commerce Clause, not choice of law rules, not contract provisions and not treaties.
One can surely raise concerns about the proper role of the legislature and rightly point out that the language is ill-crafted. But to pick at things that no reasonable person would think were intended, can only cause one to look petty, silly or mean. To engage in personal attacks to make petty, silly, mean comments puts you in the the ethical territory of a Jersey Shore roommate.
NL
February 19, 2010, 7:20 pmloki13 says:
NedLudd,
You see, there’s a problem with your pithy analysis. There have been several attempts by us snotty book learnin’ lawyers to explain the issues with this bill… we might even tried to do so like a fair-minded person would, instead of the librul European-lovin’ space aliens that we are. See, inter alia, my post on Feb. 17th at 5:29 pm.
However, while there can be a good-faith debate over the size of the problem (how prevalent it is) and the nature of the problem (when, exactly, the use of “foreign law” is an issue), the one thing that you have seen both conservative as well as librul lawyers on this site agree on is this:
This is one hellaciously stupid bill. Because even if you think that, for example, SCOTUS’s use of foreign law as persuasive authoity in 8th Amendment jurisprudence is THE WORST THING THAT EVER HAPPENED TO OUR REPUBLIC, this bill does abolutely nothing to solve that. And, more importantly, it has some amazingly disastrous consequences, from things conservatives don’t care so much about (like family law) to things they hold a little more dear (freedom to contract- as in choice of law provisions in contracts).
As for personal attacks, I find that Alan’s posts could not be mean-spirited at all, as they continually brighten my day. Most people are just banal in their recitiation of left- or right- wing talking points, but-
This trolliciousness is pure…. comedy…. gold. He’s Over The top like Sly Stallone. You just have to enjoy it. Different than a stopped clock- more like a clock that’s twelve hours ahead, and keeps angrily telling you what the time is…. fool. :)
February 19, 2010, 8:02 pmCan't find a good name says:
The legislature would be much better off attempting to prohibit courts from citing foreign law in any decision that declares a state law unconstitutional. I think that is what the legislative sponsors are probably most worried about anyway.
February 20, 2010, 4:50 pmepluribus says:
Can’t find a good name:
It is the function of the judiciary, not the legislature, to interpret the constitution. It would be pretty plainly unconstitutional for the legislature to tell the judiciary how to do this. It would amount to a usurpation of the judicial power, which is what your suggestion proposes. This would be true both at the state and federal levels.
February 21, 2010, 9:11 amepluribus says:
I should amend my previous post to make it clear that the legislature also has the right to interpret the constitution when it enacts legislation, and presumably a legislature would (and I believe should) refuse to enact legislation that it believes to be unconstitutional. The judicial power to interpret the constitution arises in the course of deciding cases. A legislative act presuming to tell the judiciary how to interpret the constitution when it decides cases is the kind of unconstitutionality I was referring to. A legislative act telling the judiciary not to consider foreign law when it interprets the constitution would violate the judicial function and thus be unconstitutional.
February 21, 2010, 12:05 pmColin says:
From this side of the Atlantic, I think you’re fairly safe…
There are two major legal systems in Great Britain – English Law
and Scots Law (as well as Jersey, Sark – the Chanel Islands
which still have Norman French basis).
Now you can pick & choose!
For example – In Scotland, a man & woman can self-declare they
March 1, 2010, 4:53 amare married (there’s other considerations as well) – Common Law
Marriage.
It also exists (very very rare & in a different form)
in English Law.
Now go play with those precedents ant the Section E3
bw says:
“that an arbitration award by an arbiter relying on “religious sectarian law or foreign law” would be unenforceable.”
They usually aren’t enforceable in the traditional sense. An Orthodox friend was involved in an employment/compensation dispute arbited by a Bet Din, or rabbinical court. The only power the Bet Din had to enforce anything was to issue a religious ruling placing the person in ‘faerem’ (that’s the best spelling I can manage for it) roughly comparable to excommunication or Amish shunning, where they were treated as a Gentile. The force of religious legal bodies rests entirely on the importance of religious good standing to the parties involved.
March 2, 2010, 1:11 pmbw says:
“AFAIK, it is Constitutionally protected speech to label a ham and cheese sandwich as “kosher” so it is probably just as well to spell it all out.”
Yes, but it’s not protected to use the registered trademark of one of the private organizations that inspect food production and certify it as kosher, any more than it’s protected to put the UL symbol on a toaster that UL hasn’t tested. The circle K and OU symbols on kosher products are registered trademarks.
March 3, 2010, 1:00 pm