Oklahoma House of Representatives Proposes Ban on Use of Foreign Law in Oklahoma Courts

The proposal passed the House last week by a vote of 91-2, and is now before the Oklahoma Senate’s Judiciary Committee. Here’s the proposed constitutional amendment, to be submitted to the voters if the Senate agrees:

B. Subsection C of this section shall be known as the “Save Our State Amendment”.

C. The Courts provided for in subsection A of this section [i.e., all the Oklahoma state courts -EV], when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, and the Oklahoma Statutes and rules promulgated pursuant thereto 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 law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

This strikes me as a bad idea, even if you think American courts generally should not consider modern foreign constitutional rules in interpreting American substantive constitutional rules (a position I generally sympathize with).

To begin with, let’s try to figure out what this means. The first sentence of part C says that Oklahoma courts “when exercising their judicial authority” “shall uphold and adhere to” certain sources of domestic law. The second says “The courts shall not look to the legal precepts of other nations or cultures.” This suggests that any court rendering any decision may not “look to” any foreign law — and not just in “cases of first impression,” where new common law or constitutional rules are developed, but in any decision, including the application of settled legal principles.

Does the next sentence, “Specifically, the courts shall not consider international law or Sharia Law,” merely offer an example, or does it narrow the preceding sentence (so that “the legal precepts of other nations” may still be considered, so long as they are not “international law” in the sense of transnational legal norms, and so long as they are not “Sharia Law”)? I assume it’s just an example, since otherwise the preceding sentence would be meaningless. I also assume that “consider” should be seen as a synonym for “look to” (or should it be?).

So it looks like, under the proposed amendment, any court “exercising [its] judicial authority” when applying existing legal rules wouldn’t be allowed to “consider” (or “look to”) any “legal precepts of other nations.” Thus:

1. If a contract calls for the application of (say) Canadian or Mexican law, Oklahoma courts (like other courts) would generally follow the contract (with some exceptions that aren’t applicable to the great bulk of litigation). This is especially so when the contract was entered into in a foreign country, and the parties at the time wouldn’t have even anticipated that the contract would be interpreted some years later in Oklahoma courts. Not any more, if the proposed Oklahoma amendment were to pass.
2. If a contract is silent on the choice of law, the sensible Oklahoma statute — in effect since before Oklahoma became a state — provides that, “A contract is to be interpreted according to the law and usage of the place where it is to be performed, or, if it does not indicate a place of performance, according to the law and usage of the place where it is made.” So a contract that is to be performed in Brazil would normally be interpreted under the laws of Brazil. Not any more.
3. If Oklahoma courts are asked to enforce a foreign judgment — a crucial aspect of modern commercial life — they would normally look to the underlying foreign law to see whether the judgment is contrary to Oklahoma public policy, see, e.g., Panama Processes v. Cities Service Co., 796 P.2d 976 (Okla. 1990) (Brazilian judgment). They would likewise look to foreign law to resolve any ambiguous or unclear terms in the foreign judgment. Not any more.
4. If Oklahoma courts are asked to resolve a tort law case, especially involving behavior that took place in a foreign country, they would sometimes look to that country’s law to determine whether the behavior was indeed tortious — for instance, would look at Mexican traffic law to determine whether an accident in Mexico was caused by defendant’s violation of the rules of the road. (Oklahoma courts have followed the more modern “most significant relationship” test, as opposed to the older test which always looks to the law of the place where the tort occurred; but even so, in some situations they would consider the law of the place of the tort.) Not any more.
5. If Oklahoma courts are asked to decide whether a marriage is valid — whether it’s the marriage of two Oklahomans who got married at some resort, or the marriage of two foreigners who came to Oklahoma as a married couple — they would normally look to the law of the state where the marriage is celebrated. I’m not referring here to culture-war questions such as same-sex marriage, but to basic issues such as whether the parties were of age to marry, had been properly divorced (if they had been married before), had gotten the proper paperwork done, and so on. Again, not any more.
6. If Oklahoma courts are asked to interpret Oklahoma constitutional provisions or Oklahoma common-law rules, they often look to English law, especially pre-Revolutionary English law (for instance, as summarized in Blackstone’s Commentaries on the Laws of England), since American legal principles are based on some such English legal principles. Even Justice Scalia does this often, for instance in the Second Amendment case, Heller v. D.C.. Oklahoma courts wouldn’t be able to do that any more; after all, even though those legal principles are relevant to our own, and might be part of our “culture,” they are still “legal precepts of other nations.”

I could give more examples, but I don’t think there’s any need. I see no basis for Oklahomans to so drastically revise their state law — especially in a time when Oklahoman companies must, to survive, do more and more business in foreign countries, governed by foreign laws. Nor do I think that most of the legislators who voted for the Save Our State Amendment really wanted to make these changes.

Yet this is what the proposed amendment would apparently do. I much hope that the Oklahoma Senate fixes this before it gets on the ballot. If the Oklahoma Legislature wants to ban Oklahoma courts from interpreting the state or federal constitutions in light of the modern law of jurisdictions, there are good arguments for that. But the Legislature should then propose an amendment that actually does that, and not the vastly broader amendment that’s currently being considered.

Three notes:

1. I didn’t argue that this would bar Oklahoma courts from considering treaties that the U.S. has adhered to. Properly entered-into treaties are (under Article VI of the U.S. Constitution) “the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” So Oklahoma can’t order its judges not to follow treaties, and the reference to “the law as provided in the United States Constitution” will likely be interpreted to mean that the amendment doesn’t even try to so order.

2. I suppose someone could argue that Oklahoma courts would still be free to apply foreign law under normal choice-of-law principles, because those principles are part of “established common law.” But I don’t think that’s right, since it would make the whole exercise, and in particular the sentence “The courts shall not look to the legal precepts of other nations or cultures,” pointless. Courts generally act only pursuant to their interpretations of constitutions, statutes, and the common law (or their modifications to the common law, which I take it courts would remain free to make). The whole point of the amendment must be to constrain the courts’ use of foreign law in their interpretations of constitutions, statutes, and the common law, and not just to leave courts free to use such foreign law as they please on the theory that it is embodied within those bodies of law.

(Of course, one way of avoiding that is to say that “established common law” fixes Oklahoma common law at the legal rules established as of the time of the amendment, so that Oklahoma courts can follow foreign law to the extent mandated by current common law but can’t develop the common law beyond then. But that can’t be right, since that would also fix Oklahoma common law at the current rules even as to matters completely unrelated to foreign law, on the theory that Oklahoma courts can’t apply any rules that aren’t “established” as of the time of amendment. I can’t imagine that most of those who voted for the amendment want it to mean; so if that is the best interpretation of the current text of the amendment, its backers had best correct it before it’s too late.)

Thanks to Bill Raftery (Gavel to Gavel) for the pointer.
3. There’s also the separate question of the application of the law of Indian tribes, a potentially important matter in Oklahoma; but I don’t know enough about the subject to speak to that.