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:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
epluribus says:
First Arizona, now Oklahoma. I presume this will spread. I would call it a virus, but some would undoubtedly be offended by the analogy. So let me use the term contagion. OK, that’s offensive, too. Good law-making it isn’t.
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March 19, 2010, 5:31 pmChris says:
A note on your first note: this statutory change may not prevent judicial application of treaties in Oklahoma courts. But it probably does prevent use of foreign case law to interpret treaties, where, for example, no U.S. case law has addressd a particular issue under a treaty but that issue has been addressed in cases in foreign nations that are signatories to the same treaty. Such case law probably counts as “the legal precepts of other nations” and so cannot be relied upon or cited to if this statute comes into effect.
Another point of interest: if the sources of law identified in the first sentence are intended to be the exclusive sources that can be relied upon and judicially applied in Oklahoma courts, then there is one very interesting omission: the statutory law of the other states of the United States. Thus, if normal choice of law analysis suggests that New York law applies to a contract, Oklahoma courts would be unable to rely upon New York statutory law in interpreting that contract.
It’s also unclear (to me, at least) what “established common law” means. If that means Oklahoma common law, then it would appear that, if this statute is enacted, Oklahoma courts would be unable to apply even New York common law interpreting a contract that would be, under normal choice of law analysis, subject to New York law.
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March 19, 2010, 5:39 pmMike McDougal says:
Link to the similar post on the Arizona proposal.
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March 19, 2010, 5:45 pmMike McDougal says:
And what if they do?
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March 19, 2010, 5:47 pmptt says:
I believe the bible calls for crushing the testicles of their interns.
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March 19, 2010, 5:48 pmMike McDougal says:
Good point. I didn’t think of that.
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March 19, 2010, 5:54 pmSteven Den Beste says:
I think that “established common law” means “prerevolutionary English law”.
As to your first counterexample, I think the answer is very clear: if a contract is to be interpreted according to Canadian or Mexican law, it ought to be litigated in a Canadian or Mexican court.
I don’t find any of your other arguments particularly compelling, either.
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March 19, 2010, 5:58 pmShelby says:
I think the interns are safe; the bible isn’t an enumerated source of law that the courts would be permitted to consider.
More generally, it’s always useful to be reminded of the profound stupidity of many of the people we elect to draft our laws.
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March 19, 2010, 6:00 pmChris Travers says:
This will be amusing if it gets passed. Oklahomans who were married in Nevada might find out, when trying to get divorced, that they are not married after all (waiting period not followed). Then if one of the parties marries in Oklahoma, and then moves, say, back to Nevada, you have a question as to whether or not this is bigamy.
Furthermore, suppose Oklahoma passes a statute, say, criminalizing adultery. Now the couple from Nevada cannot be prosecuted under it because they aren’t married.....
The idea of magically dissolving and reconstituting marriages.....
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March 19, 2010, 6:00 pmr gould-saltman says:
epluribus:
It’s xenophobia, pretty much pure and simple, and, while you’re being diplomatic, I’ll come out and call it a plain old mental disorder.
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March 19, 2010, 6:00 pmepluribus says:
ptt says:
If regarded as a source of law, could the bible be regarded as among “the legal precepts of other nations or cultures.” I mean, it is of Middle Eastern origin, ancient Israel, etc. No, that would be ridiculous. (But isn’t that just what the proposed Oklahoma law is?)
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March 19, 2010, 6:02 pmepluribus says:
Yes, of course it is xenophobia. Trouble is a lot of folks in Arizona, Oklahoma, and other places think that’s a virtue, not a fault.
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March 19, 2010, 6:03 pmdrunkdriver says:
Well I think this is a great thing. Were it not for these brave legislators, how could we stop this epidemic of judges deciding trailer repossession suits, personal injury cases, and traffic tickets, according to “Sharia Law?” Oklahoma’s very culture was at stake.
Fortunately the Lord has blessed us with wise legislators who’ll stand up the onslaught of criticism from politically powerful law professors and the danged ACLU. Let’s remember them at election time.
p.s. who are the two America-haters who voted against this?
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March 19, 2010, 6:04 pmShelby says:
Steven, there are all kinds of reasons why it might not be feasible to try such a case in Mexico or Canada. For example, lack of personal jurisdiction over the defendant.
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March 19, 2010, 6:05 pmorca says:
I don’t see how a legislature can tell judges how to think.
Would this silly law prevent Oklahoma couples from adopting foreign kids?
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March 19, 2010, 6:05 pmCalderon says:
What struck me as odd about the amendment is that the first sentence does not refer to case law, either of Oklahoma, other states, or federal case law in interpreting statutes, the constitution, or so forth. One could argue that the constitutional, statutory, and regulatory law includes all judicial decisions interpreting that law. But does that then mean that if a Brazilian court interprets Oklahoma law that Oklahoma courts can rely on the Brazilian precedent? Or suppose the Tenth Circuit interprets a provision of the Oklahoma Constitution by relying on a survey of European law; could Oklahoma courts rely on that decision in interpreting the OK constitution? Presumably the purpose of the statute was to prevent foreign law from being used to interpret OK common law, statutes, or the constitution, but the omission of decisions by other US courts creates confusion on this score. The proposed amendment either makes OK a civil law jurisdiction that ignores case law precedent (a radical change that could not have been intended), or still allows foreign law to be used in a backdoor way.
The intent of the amendment could be better expressed by something like: The Courts provided for in subsection A of this section, when exercising their judicial authority regarding Oklahoma law, shall not consider the laws of other nations or cultures [or perhaps “the laws of nations or cultures other than the United States and the States therein”] including, but not limited to, 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.
The “regarding Oklahoma law” or something similar (“when interpreting or applying Oklahoma law”) would address 1–5 of Eugene’s examples, though admittedly not the last one. In any case, the amendment as written now seems confusing, at least to me.
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March 19, 2010, 6:06 pmyankee says:
Is it constitutional for the Oklahoma legislature to pass this kind of blanket restriction on what the courts may “consider”? The Oklahoma Constitution provides that the three branches are “separate and distinct, and neither shall exercise the powers properly belonging to either of the others.” The power to decide what law a court will “consider” seems like an inherently judicial function. I don’t know if the separate and distinct clause has any teeth under Oklahoma constitutional precedent though.
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March 19, 2010, 6:08 pmepluribus says:
Calderon says:
Isn’t that one of its virtues? (Maybe even the only one?)
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March 19, 2010, 6:10 pmepluribus says:
Yes, this is a point I made in the discussion of the proposed Arizona law. But would an Oklahoma court have the guts to declare a statute passed 91–2 by the Oklahoma House unconstitutional?
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March 19, 2010, 6:13 pmChris says:
This has to have been written by someone who has zero experience of litigation. Need I explain that someone might bring suit in Oklahoma precisely to avoid application of foreign law that might be fatal to their claim. This type of forum-shopping happens already. Enactment of this proposed statute (and similar statutes in other states) will make such forum-shopping even more frequent. And since foreign law (and maybe even the laws of other states of the United States) has no value at all under this proposed statute, what we now see as forum-shopping will not even be subjected to that pejorative label.
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March 19, 2010, 6:13 pmJust Dropping By says:
Yes, that was my exact reaction too upon reading it. It’s arguably an even broader ban than the Arizona one, which specifically referenced the laws of other states as being acceptable, IIRC.
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March 19, 2010, 6:21 pmRepeal 16-17 says:
This would be an amendment to Oklahoma’s State Constitution. So how can it violate that same State Constitution?
OTOH, I do agree with those who point the bad wording of this proposal. It definitely needs a rewrite.
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March 19, 2010, 6:26 pmepluribus says:
Yeah, you’re right. So the Oklahoma Supreme Court is off the hook on this one. I think the AZ proposal was a statute.
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March 19, 2010, 6:28 pmAnonsters says:
If above commentators are correct in pointing out its possible effect w/ respect to laws of other states, would it not then be open to attack in federal court under the Full Faith and Credit Clause?
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March 19, 2010, 6:29 pmSteve says:
As to your first counterexample, I think the answer is very clear: if a contract is to be interpreted according to Canadian or Mexican law, it ought to be litigated in a Canadian or Mexican court.
Setting aside the other valid objections that people have noted, your proposed rule would make Oklahoma a very business-unfriendly environment indeed.
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March 19, 2010, 6:32 pmyankee says:
I think it’s more likely they’ll “interpret” it into meaninglessness. They’ll interpret to prohibit them from citing decrees of the Committee for the Promotion of Virtue and the Prevention of Vice as persuasive authority when interpreting Oklahoma law, but that’s it.
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March 19, 2010, 6:32 pmepluribus says:
If it is vulnerable to Full Faith and Credit challenges, I would have to amend my earlier comment that it had only one virtue (that it is confusing). This would certainly be another virtue.
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March 19, 2010, 6:33 pmJust Dropping By says:
What if the parties have a contract that specifies Oklahoma as the forum for any litigation arising out of or relating to the contract? It’s not uncommon for parties to “split the baby” in a contract by agreeing to a forum that is more convenient for one party, but agreeing to apply the law of the other parties’ home state/country.
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March 19, 2010, 6:33 pmGuy says:
Interesting question, can the Oklahoma Constitution tell Oklahoma judges how to interpret the Federal Constitution? I would think not.
I wouldn’t want to be in the nasty position of being an Oklahoma judge trying to figure out exactly what should happen under this amendment in all those cases you have laid out, but then again I guess it would serve me right since Oklahoma judges have apparently been using Sharia law to provide the rule of decision in the cases before them.
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March 19, 2010, 6:46 pmGuy says:
Because plaintiffs never try to gain a tactical advantage by choosing the forum of their litigation.
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March 19, 2010, 6:49 pmyankee says:
Oh, I missed that it was a constitutional amendment rather than a statute. But perhaps they could find that this sort of interference with the judicial function was a “revision” that had to be proposed by a constitutional convention. The California Supreme Court has considered a bunch of revision/amendment cases but the only one where it struck down an amendment as a revision was Raven v. Deukmejian, 52 Cal.3d 336 (1990), where it found that the purported amendment fundamentally altered the judicial function and therefore was a revision rather than an amendment.
But under this amendment, the Supreme Court of Oklahoma would arguably be forbidden from relying on the Supreme Court of California as an authority in interpreting the Oklahoma Constitution to determine whether the amendment was constitutional. A maze of contradiction!
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March 19, 2010, 6:49 pmJoseph Slater says:
I will only note the absurd hyperbole of the name of the bill: “Save Our State Amendment”? Because, you know, Oklahoma was at risk of um . . . not being saved . . . but for this absurd bit of xenophobia?
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March 19, 2010, 6:54 pmDougInSanDiego says:
One might argue that the rampant “xenophobia” slams here are NOT from individuals who hold hatred in their hearts toward Oklahoma for one reason or another....
And then there are the advantages left unspoken here:
1. Adjudicators (and attorneys) would be able to concentrate on state and federal law, to the exclusion of what Brazilians might prefer.
2. Citizens (including corporations resident in the state) need not educate themselves in contract law of Sri Lanka
3. Plaintiffs who dislike the horrific legal framework of the state could elect to litigate elsewhere
4. Citizens of the State would hold more control over the nature of the culture they wished to enact through legislation, and would not be forced to accept artifacts of fringe cultures such as the Peoples Republik of Massachusetts
5. Citizens of the State would be at least partially insulated should the erosion of law in Washington DC proceed to its logical end.
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March 19, 2010, 7:12 pmepluribus says:
I drove the length of Oklahoma just over a week ago. I have some business ties with the state. I certainly don’t hate it. I am getting pretty sorry for it, though. And this proposed bill isn’t doing much to change that feeling.
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March 19, 2010, 7:24 pmMalvolio says:
Now that is either a brilliant bit of satire or thorough cluelessness.
Tom Lehrer famously said, “There are people in the world who do not love their fellow human beings — and I hate people like that!” E-Pluribus (could his name be part of the joke?) is saying, “Oh, all those nasty xenophobic foreigners.” (To coastal elite and their imitators, Okies are far more foreign than, say, Parisians are.)
I agree with Dr Volokh that the bill is very poorly worded (not that my opinion does or should carry any weight), but I sympathize with the underlying intent.
Yes, I know a lot of you would like it if more judges would say “Oh, this is how they do it in Europe...” in cases involving, for example, welfare or capital punishment. How much would you like it if they said that about free speech? Or in relation to say, homosexuality, they said “this is how they do it in Saudi Arabia”?
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March 19, 2010, 7:30 pmSteve2 says:
But the “revision vs. amendment” issue is purely a matter of California law, since Article 18 of the California Constitution establishes that there are amendments, and there are revisions, and they have different processes. Oklahoma’s Constitution, in Article XXIV, doesn’t provide for revisions except in the context of “a constitutional convention can propose amendments, massive revisions, or a whole new constitution”.
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March 19, 2010, 7:33 pmMike McDougal says:
I doubt the legislative and executive branches in Oklahoma can do anything to prevent the judiciary from using foreign law. The judiciary is a co-equal branch.
While the legislature might be able to pass a bill regarding the substance of rights, it almost certainly cannot tell the judiciary how to do its job. (Bill: “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.)
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March 19, 2010, 7:42 pmGuy says:
Which references to foreign law do you find to be a problem? The one I’ve personally heard most complained of is the one in Lawrence v. Texas, which was only mentioned to rebut the specific claim that homosexuality is incompatible with western civilization, which seems entirely appropriate to me. But I would be interested in hearing what you think is the strongest example of an inappropriate reference to or application of foreign law in an American court.
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March 19, 2010, 7:49 pmyankee says:
Revision and amendment is an Oklahoma law issue as well. Article XXIV-2 of the Oklahoma Constitution says a convention may be called “to propose alterations, revisions, or amendments to this Constitution, or to propose a new Constitution.” However, Article XXIV-1 allows the legislature to propose only an “amendment or amendments.” Article XXIV-1 also has an inexplicable reference to an “alteration,” but it says nothing about “revisions.” The implication that a “revision,” which permitted under XXIV-2 but not XXIV-1, is something different from an “amendment” or “alteration.”
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March 19, 2010, 7:50 pmGuy says:
Bingo. And that’s exactly how this amendment will be construed into oblivion. Most courts know the difference between “real” legislation intended to work substantive changes in the law and symbolic legislative gestures that are best left ignored.
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March 19, 2010, 7:56 pmEvilDave says:
Well they’d have a hard time properly considering “international law” since I have yet to see a book that contains “international law” or a world legislature or King of the World (DeCaprio aside) that has the authority to pass an _international_ law.
I know it is a pedantic point, but the term “international law” is so misleading as to lead to many many incorrect conclusions of ones duties and rights.
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March 19, 2010, 7:59 pmEvilDave says:
A good opportunity for a law review article (for those of you that need to right them).
Let us say a state wishes to exclude their judiciary from considering (or at least citing) foreign or religious law in their decisions. How would they properly go about it to avoid the issues described above?
Actually you can get 2–3 articles out of this. What are the problems of the AZ/OK acts? What is the model legislation to avoid these problems? Would this ideal act survive Constitutional or practical challenge?
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March 19, 2010, 8:03 pmepluribus says:
Malvolio says:
I’d prefer “brilliant bit of satire.” I don’t know why, it just sounds better than “thorough cluelessness.”
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March 19, 2010, 8:10 pmAndy Krause says:
Next we’ll have a smart lawyer here explain by what method the supreme court of a state can find a state constitutional amendment “unconstitutional”. Which brings up the logical question of what happens when a state Supreme Court makes an unconstitutional ruling?
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March 19, 2010, 8:14 pmHerb Spencer says:
Yes, it’s xenophobia. But criticizing the solons who write this stuff doesn’t get to the heart of the issue: why are these people reacting this way? Partial answer: because well-intentioned, if not self-doubting, SCOTUS Justices are straying in interpreting our own laws by relying on others’ when there’s no need to do so other than to support their far-fetched rulings.
American exceptionalism, isolationism, narrow-mindedness: call it what you will, but failing to probe for the reasons underlying actions like these does nothing to prevent them from recurring.
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March 19, 2010, 8:32 pmepluribus says:
I believe it’s a reaction to the Supreme Court decision in Lawrence. In other words, it’s situational jurisprudence. The US has been around for more than a couple of hundred years. Oklahoma has been around for more than a hundred years. Things were OK up until that immoral, foreign-inspired decision in Lawrence. We’re going to make sure nothing like that ever happens again, no matter how badly we have to twist and forture and mishape our own law to do it. (Of course, this is just my oinion. I offer it only because you asked the question “why?”)
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March 19, 2010, 8:42 pmGuy says:
I would like to ask you the same question I asked malvolio: What would you consider the strongest example of an inappropriate reference to foreign law by a court of the United States? I would honestly like to know, because I really haven’t heard any serious concrete examples, but I have often heard this complaint voiced in general terms.
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March 19, 2010, 8:49 pmDave Hardy says:
My amicus brief warned that adoption of Sharia law in place of the Restatement(2d) of Torts would do no good, and risked much evil, but would the Oklahoma Court of Appeals agree? Noooo...
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March 19, 2010, 8:50 pmEvilDave says:
Ideally you could try them for treason or at least rebellion against the state.
But as a practical matter, you just live with their decision.
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March 19, 2010, 9:01 pmhilzoy fangirl says:
Seeing as this would abrogate, or at least radically rewrite, many contracts and perhaps other agreements, wouldn’t the amendment be vulnerable to a (federal) constitutional challenge under the Due Process Clause?
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March 19, 2010, 9:12 pmAnton says:
“Oklahoma House of Representatives Proposes Ban on Use of Foreign Law in Oklahoma Courts”
Well duh!
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March 19, 2010, 9:18 pmNorthern Dave says:
Guy asked:
“I would like to ask you the same question I asked malvolio: What would you consider the strongest example of an inappropriate reference to foreign law by a court of the United States? I would honestly like to know, because I really haven’t heard any serious concrete examples, but I have often heard this complaint voiced in general terms.”
Here’s one:
http://www.usatoday.com/news/washington/2003–07-07-foreign-usat_x.htm
As for internal interference here’s one Okie’s might be concerned over:
http://pajamasmedia.com/blog/obama-and-the-attempt-to-destroy-the-second-amendment/?singlepage=true
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March 19, 2010, 9:21 pmNorthern Dave says:
Here’s another link where the former SCOTUS judge Ginsburg gives her justification for using foreign legal influence:
http://wellsy.wordpress.com/2009/04/13/ruth-bader-ginsburg-defends-citing-foreign-law-in-scotus-decisions/
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March 19, 2010, 9:23 pmPersonFromPorlock says:
The proposal is admittedly artless but the problem is real enough; the imposition on Americans of legal interpretations which don’t reflect America’s unique culture is to be deprecated. How about suggestions for preserving the American identity in the courts instead of a rush to curl the fastidious lip?
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March 19, 2010, 9:32 pmBiolawguy says:
Wow! Everybody seems so down on this.
Even if it is drafted suboptimally, I would’ve predicted a BIT more sympathy around here for the underlying idea of limiting the reach of judicial policymaking...after all, it’s not like they’re forbidding the legislature from considering what foreign legislatures do.
Disparaging stereotypes to the contrary notwithstanding, it’s hardly “xenophobic” for a people to desire self-governance. Indeed Chief Justice Roberts during his confirmation cogently discussed the dangers of courts freely picking-and-choosing laws from aroung the world to adopt...
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March 19, 2010, 9:32 pmNorthern Dave says:
Here’s a fun one from the past relating to the issue of SCOTUS taking its lead from offshore (with thanks to Orin Kerr :-) )
http://volokh.com/posts/1116973174.shtml
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March 19, 2010, 9:36 pmGuy says:
Those examples don’t strike me as worrisome, in the case of Lawrence v. Texas, as I explained above, the Court was rebutting the claim that homosexuality is incompatible with “western civilization”, to the extent that Europe is a part of that civilization, it seems appropriate to cite their experiences. Your second example is not a court citing foreign precedent at all, and your third example also doesn’t seem out of line, I don’t see why a court can’t look to a law review article, foreign precedents, or Green Eggs and Ham for persuasive authority if the application is apt. If the Court were looking to international norms as a rule of Constitutional interpretation I would see a problem, (that kind of analysis is appropriate for treaties, but not for reading the Constitution) but to the extent the court simply references other decisions on issues it hasn’t resolved before, simply to illustrate a line of reasoning or prove a factual point, I don’t see what’s wrong with that.
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March 19, 2010, 9:41 pmCan't find a good name says:
I tend to think that what the sponsors of amendments such as these have in mind is preventing judges from doing things like legalizing same-sex marriage, or banning the death penalty, utilizing the fact that “that’s how they do things in Europe” as the basis for the decision.
But what they probably mean is something like, “The courts shall not cite the legal precepts of other nations or cultures in any ruling which purports to declare a law of this state unconstitutional.”
I doubt the sponsors of the amendment are all that angered by Oklahoma courts deciding tort law cases in accordance with Mexican traffic laws, or things like that. If they are, I’d be interested to hear why.
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March 19, 2010, 9:44 pmfrankcross says:
I suppose next we should forbid the military from studying and learning from the campaigns waged by foreign militaries.
Ultimately, the only reason for precluding consideration of foreign law is mistrust of judges. And, if you don’t trust the judges, the game is already lost. They will misbehave without needing foreign law to use.
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March 19, 2010, 9:51 pmfirst history says:
Yes, I know a lot of you would like it if more judges would say “Oh, this is how they do it in Europe...” in cases involving, for example, welfare or capital punishment. How much would you like it if they said that about free speech? Or in relation to say, homosexuality, they said “this is how they do it in Saudi Arabia”?
Considering the Supreme Court has cited foreign law in its decisions longer than Oklahoma has been a state, the proposed amendment is parochial and xenophobic.
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March 19, 2010, 9:58 pmNorthern Dave says:
Guy, given your response I seriously doubt you’d find any use of foreign influence on the SCOTUS a problem.
With Stevens (my fourth link) and Ginsburg (my third link) claiming that rather than precedent within US law they ought to be following offshore influences (as they obviously did with Lawrence — see Kennedy in link 1) you are obviously an Internationalist.
The second link related to the completely unConstitutional and unAmerican attempt to circumvent the 2nd Amendment and create a State where the populace is unable to defend itself from Tyranny. While the primary actors were US based, the philosophy is standard Old-World.
Why should the US adopt the tired, failed policies of places people seek to come to the US from??
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March 19, 2010, 10:06 pmleo marvin says:
I suspect the sniping is all being orchestrated by one disgruntled driver.
(You have to admit, Oklahoma is on kind of a roll here.)
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March 19, 2010, 10:09 pmfirst history says:
(You have to admit, Oklahoma is on kind of a roll here.)
I was thinking the same thing. In other OK news:
They have been busy...
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March 19, 2010, 10:18 pmJohn Herbison says:
This proposed amendment so batsh!t cray that I went back and reread Professor Volokh’s post, hoping that I had overlooked a link to The Onion.
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March 19, 2010, 10:31 pmDougInSanDiego says:
I was thinking the very same thing. Guess some people REALLY got their dander up when they were told they could not have their pet license plate!
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March 19, 2010, 10:33 pmuberVU - social comments says:
Social comments and analytics for this post...
This post was mentioned on Twitter by wrt2003: Oklahoma House of Representatives Proposes Ban on Use of Foreign Law in Oklahoma Courts http://goo.gl/ZUvl Love being an Okie!...
Petty Like a God says:
This may have been addressed in the AZ post, but I’m curious: If you and I agree, based on our religious convictions, that our contract dispute will be governed by Sharia law — and the OK court refuses to apply Sharia law, and will only apply OK law, and then we can’t get a verdict that’s in line w/ what our contract spelled out . . . Does that violate the 1A of the federal Constitution?
Oh yeah–and this re: the last posting from David Bernstein, w/ the closed comments:
The sentence “The thrill, apparently is gone.” is missing a comma. It should be “The thrill, apparently, is gone.”
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March 19, 2010, 10:58 pmAdam B. says:
Only if it outlaws the Rule in Shelley’s Case. Also, would it allow citation to the Ten Commandments?
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March 19, 2010, 11:18 pmRicardo says:
Don’t judges sometimes cite law review articles in opinions? That strikes me as about the same as citing the opinion of a foreign court. Why not ban both if they are really concerned about judges citing non-authoritative or non-binding sources in opinions?
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March 19, 2010, 11:25 pmU.Va. Grad says:
But what if an Oklahoman and a Brazilian negotiate a contract and specifically agree that Brazilian law applies? Or an Oklahoman and Sri Lankan? Or an Oklahoman and whoever? This amendment isn’t limited to judges deciding to adopt Angolan law or whatever because it makes them happy, like you might argue happened in Lawrence. This extends to run-of-the-mill contract cases, where parties have, since time immemorial, been allowed to let foreign law govern their agreement.
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March 19, 2010, 11:48 pmrpt says:
Well, this is the state that elected Imhoff and Coburn, so it’s no surprise that they are on the alert for Sharia law.
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March 19, 2010, 11:51 pmCornellian says:
It would be fun to see this statute get enacted and watch the chaos that would ensure if the Oklahoma Supreme Court decided not to rescue the Oklahoma legislature from its grandstanding idiocy, but then I don’t live in Oklahoma.
I especially like the unintentional irony of calling it the “Save Our State Amendment.”
Do the legislators of Oklahoma really have to spend so much time fostering their reputation as clueless rubes?
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March 20, 2010, 12:05 amWilliam Wallace says:
This is a bunch of nonsense and a pathetic misreading of statistics. No where near 50% of marriages in America end in Divorce, despite what those on the left wish were true.
You simply can’t count the number of marriages in a State and then count the number of divorces in the State and then divide. You must track marriages over time to get any accurate reading.
In reality, less than 35% of marriages end in divorce.
Epic leftist fail.
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March 20, 2010, 12:12 amBill Poser says:
What are the implications of such a restriction for foreign trade? If contracts may not be interpreted according to the law of other countries, I would think that many foreign businesses would look askance at entering into relationships that might end up in an Oklahoma court. To take one admittedly special case, many academic publications are published by Dutch publishers; the contracts specify Dutch law. Will academic authors in Oklahoma now have difficulty getting published?
I also wonder whether this interferes with treaty obligations of the United States regarding foreign trade.
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March 20, 2010, 12:33 amDougInSanDiego says:
“U.Va. Grad says:
But what if an Oklahoman and a Brazilian negotiate a contract and specifically agree that Brazilian law applies? Or an Oklahoman and Sri Lankan? Or an Oklahoman and whoever? This amendment isn’t limited to judges deciding to adopt Angolan law or whatever because it makes them happy, like you might argue happened in Lawrence. This extends to run-of-the-mill contract cases, where parties have, since time immemorial, been allowed to let foreign law govern their agreement.”
1. Litigate in Brazil
2. Litigate in Sri Lanka
3. Litigate in whoever (?)
If the parties agree to settle disputes under some law other than what is used in Oklahoma — then, by definition, they agree on that law’s location for venue. Simple.
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March 20, 2010, 12:36 amPetty Like a God says:
But that’s not what they agreed to. Venue was part of their negotiation. They are businesspeople, and they had business reasons for structuring their agreement this way. (E.g., as mentioned in a comment above, some deals involve a trade-off of choice of law/choice of venue.)
And OK wants to abrogate parties’ freedom to contract because . . . it “Saves Our State” to do so? Because . . . it “Loses Our State” when the OK court applies foreign law pursuant to a freely-entered contract?
In what way is OK harmed when the OK court applies this foreign law, when that’s what the parties agreed to? U.S. courts are competent to apply foreign law. They do it every day in this country. Have been doing so for a long time.
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March 20, 2010, 12:47 amtaka2k7 says:
I’d be curious to what impact this would have on future point-to-point travel from the Oklahoma space port. International law definitely applies in orbit. Fortunately the US has ratified the Outer Space Treaty and thus, at least that is considered US law now.
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March 20, 2010, 1:02 amfirst history says:
This is a bunch of nonsense and a pathetic misreading of statistics. No where near 50% of marriages in America end in Divorce, despite what those on the left wish were true.
You simply can’t count the number of marriages in a State and then count the number of divorces in the State and then divide. You must track marriages over time to get any accurate reading.
In reality, less than 35% of marriages end in divorce.
Epic leftist fail.
Epic leftist fail? Hardly, it is the right wing that harps on the sanctity of marriage–the left could care less. In any event, the rate of marriages per 1,000 population in 2007 was 7.3 while divorces was 3.6 per 1,000. The divorce rate is actually underreported because California, Georgia, Hawaii, Indiana, Louisiana, and Minnesota do not report divorce data to the CDC’s National Center for Health Statistics.
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March 20, 2010, 1:03 amDougInSanDiego says:
I think you still do not get it. All you show by comparing the divorce RATE with the marriage RATE is an idea of whether marriage is ‘growing’ or ‘shrinking’. It would be more meaningful to track the average DURATION of marriage.
Regarding your other statement — “it is the right wing that harps on the sanctity of marriage–the left could care less” — it is precisely attitudes like this that make people so despise many leftists. You see — many of us still like the notion of ‘family’, ‘marriage’, ‘fidelity’, and ‘commitment’. We may fall short and disappoint ourselves and others with our less than perfect behavior — but we would NEVER want a sterile, test tube society to replace what has existed on the planet for thousands of years. Clearly you have some reason behind the disdain for historic society, and that is, of course, your right. Still — the mobilized effort to eliminate the society the rest of us prefer just makes us angry and combative.
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March 20, 2010, 1:44 amDougInSanDiego says:
Two responses:
1. It seems to me, in principal, that a State has the right to set the rules that apply to entities that live there. Individuals or corporations that do not like the rules are free to relocate. An extreme example we all can agree with: State A decides that molesting children is unlawful, and prescribes a certain punishment(s) for those who do not abide by the rule. The rule may be different from similar rules adopted by all other states. Pedophiles may dislike State A’s rule; too bad for them.
2. In your example the 2 business entities negotiated a contract that specified Brazilian contract law, adjudicated in a court of Oklahoma. But, if that is not a legal clause for an Oklahoma entity it cannot be followed. Hopefully the Oklahoma entity is educated enough to know that up front and not create an unenforceable clause. If so, they will need to negotiate a different agreement. Big deal.
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March 20, 2010, 1:52 amMike McDougal says:
That’s complete nonsense. Venue is a place. Places are quite distinct from the content of law applied in those places.
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March 20, 2010, 1:59 amDougInSanDiego says:
Mike — you are quite right.
What I meant to say was the parties could choose any venue, OTHER than Oklahoma (where that law is not accepted), presuming that “other law” is accepted in the location they choose.
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March 20, 2010, 2:06 amRicardo says:
Look on the bright side. The “left” could do far worse: it could start practicing the family values of Newt Gingrich, Rush Limbaugh, Mark Sanford, and others like them.
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March 20, 2010, 3:35 amLysenko says:
First, IANAL, law student, etc. Second, I tend to sympathize and agree with the underlying sentiments behind this proposal. That said, it seems like a very clumsy way of going about it and something of a solution in search of a problem when it comes to the specific issue of sharia in US courts. The most common nightmare scenario I’ve come across regarding sharia in America goes something like this:
“Muslim couple is married in Islamic ceremony here or abroad. Marriage sours, and husband uses triple talaq for divorce under sharia. Husband and wife seek US divorce, and husband or his lawyer argue for a settlement and/or decision using triple talaq as the basis”. Thing is, after a bit of quick googling and findlaw searching all the cases I’ve found that follow this sequence of events have the court either rejecting the jurisdiction of the sharia court that recognized the talaq, or rejecting the talaq’s applicability to the US proceedings on various grounds, including its unjust character compared to US legal and moral standards.
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March 20, 2010, 4:15 amIdahonian says:
I guess I’m going to go ahead and throw out a qualified defense of this law.
I suppose I really don’t think it’s that awful. First of all, I don’t really see how it would prevent application of Nevada law, as it bars only laws from other nations or cultures. Second, I do think that you could consider pre-revolutionary English common law as part of the law of our nation. I suppose I don’t know about Oklahoma, but I think the reason for referring to English common law is that it is assumed to have been quasi– “incorporated by reference” into American law.
I guess I do see some positive, “community-defining” or “expressive” quality in this law. Oklahomans have identified what they see as a troubling trend; they want to maintain some control over the development of their law, which they see as reflective of their culture; and, to do so, they want Oklahoma courts to refer only to laws of the United States.
I suppose that I could dislike the Oklahoman’s likes and argue against the amendment “on the merits,” so to speak, but I really don’t see that big of a per se problem with this amendment.
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March 20, 2010, 8:46 amJim m says:
“The courts shall not look to the legal precepts of other nations or cultures.”
As noted in the last line, I think this could be a problematic issue for Native Americans in Oklahoma, a not so very insignificant number.
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March 20, 2010, 9:37 amS says:
Oklahoma legislators, bad for business, bad for Oklahoma.
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March 20, 2010, 9:38 amRoger the Shrubber says:
I think Larry Craig has earned the right to be singled out by name in that list. :)
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March 20, 2010, 9:47 amJoseph Slater says:
For the defenders of this law, a question. Can you name, or do you think Oklahoma legislators could name, a single case decided by Oklahoma courts in which the court made some arguably troubling use of foreign precedent? Because even if you’re worried about U.S. Supreme Court justices occasionally referencing foreign law, this law ain’t gonna stop that.
I would think a law specifically designed to “Save” the state of Oklahoma by limiting what Oklahoma judges could do would be in response to some actual problem that exists in Oklahoma court decision-making. So it shouldn’t be hard to find examples, right?
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March 20, 2010, 9:58 amCraig says:
As Guy says, this:
“but to the extent the court simply references other decisions on issues it hasn’t resolved before, simply to illustrate a line of reasoning or prove a factual point, I don’t see what’s wrong with that.”
I suppose if some court somewhere relied on foreign law as binding precedent, we’d have a problem. What’s the fuss with looking to other jurisdictions who have confronted a similar issue for persuasive guidance?
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March 20, 2010, 10:04 amIdahonian says:
Actually, as a quasi-interesting point, state & federal courts generally refuse to apply Native American law as the rule of decision; the generally treat jurisdiction (which, interestingly, depends on geographical boundaries & ancestry) as co-extensive with application of Native law.
At least, I think they do, as expressed here: Choosing Tribal Law: Why State Choice-of-Law Principles Should Apply to Disputes with Tribal Contacts Katherine J. Florey, 55 Am. U. L. Rev. 1627 (2006).
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March 20, 2010, 10:59 amArthur Kirkland says:
Would not the law of any modern state be excluded from an Oklahoma court’s consideration by the proposed constitutional reference to “other . . . cultures?”
Recent developments suggest the culture of most of America is, from Oklahoma’s perspective, foreign.
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March 20, 2010, 11:01 amBobC says:
The problem is lawyers do not see a trend, and the solution is clearly designed by people ignorant of the subject who cannot understand the ramifications.
This is the result of whatI call “teach the controversy” thinking. People feel they know enough on a subject to debate it, when they most certainly can’t. The best example is evolution. Despite your stance on it, the debate should be occuring in peer reviewed articles by experts in biology, not on PTA boards with “common knowledge.”
I live in Arizona with one of these foreign law proposals. In my field, economics, experts are very confident that illegal immigrants add more to government resources then they take. It is an unintended consequence of a tax structure that happens at the payroll level. Yet I see a number of laws based on “common knowledge” that illegals are taking too many government resources.
Here, it is people making decisions based on “common knowledge” of law. Supreme Court references to foreign law are up! Yes, but they are used to make specific points and none of them form the main argument in the majority decision.
“Common Knowledge” runs rampant in decision making.
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March 20, 2010, 11:02 amIdahonian says:
I don’t think you need examples; that’s the beauty (or ugliness) of so-called “expressive” laws. As opposed to a pragmatic response to a problem, this legislation could be more of an expression of common identity, or to place themselves, as a community, in opposition to a real or perceived difference in identity with another community. Think: red states versus blue states. It may be a waste of energy, but viewing this law as expressive solves the illogic of not responding to a concrete problem.
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March 20, 2010, 11:02 amPetty Like a God says:
Exactly right. It could start practicing the “family values” of . . . Mark Foley (“get a ruler and measure it for me”), Sen. David Vitter (on the DC Madam list), Ted Haggard (“I did not have a homosexual relationship with a man in Denver”), Sen. John Ensign (R-NV) (had sex w/ his staffer’s wife), and . . . a bunch of others.
People on the right may WALK THE WALK of morality more than the prominent people on the left do–but are they actually more moral? Both sides are equally slimy. (See, e.g., Bill Clinton.) But when one side attempts to claim the moral high ground . . . and you look at what they DO, not just what they say . . . it’s just silly.
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March 20, 2010, 11:15 amJoseph Slater says:
Idahoian:
Fair enough, but if the law were taken seriously, it could do some actual and certainly unintended mischief in real court cases (as described in other posts above). I’m not saying it will be taken seriously, but if the best a defender can say is, “well, this shows us to be in solidarity with other ‘red states’ on a non-existant issue and we’ll assume nobody will enforce it the way it’s written” that’s not much of a defense.
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March 20, 2010, 11:18 amCornellian says:
Doesn’t this law mean that every foreign corporation, even one headquartered in Oklahoma, is immune to a shareholder derivative suit in Oklahoma state courts? Since a director’s liability in a derivative suit is determined according to the law of the state of incorporation, that would require “turning to” foreign law to adjudicate a shareholder derivative suit brought by an Oklahoma resident against a foreign-incorporated corporation headquartered in Oklahoma. So does the state court just have to dismiss the suit lest it run afoul of the prohibition against looking at foreign law?
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March 20, 2010, 11:27 amPetty Like a God says:
I agree with you that a State can change their rules . . . and then people are welcome to “vote with their feet.” And, as applied to any future contracts, that absolutely makes sense. But, as applied to any contracts that were negotiated in the past, OK is changing the rules in the middle of the game. (Not cool.)
Perhaps future contracts should say something to the effect of: We agree that venue will be in State X, and the law of Country Y will be applied. But if State X passes some [xenophobic laws and/or amendments to their constitution] so that they won’t apply County Y’s laws anymore, then we’ll [renegotiate/used a fallback venue/some other course of action to deal with this contingency].
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March 20, 2010, 11:56 amPetty Like a God says:
Why do they feel a need to “place themselves, as a community, in opposition to a real or perceived difference in identity with another community”?
I will also point out that, in the past, when people have taken steps to “place themselves, as a community, in opposition to a real or perceived difference in identity with another community,” they don’t look very good in hindsight. Here’s a famous line that comes to mind: “Segregation now, segregation tomorrow, segregation forever.”
I have trouble wrapping my head around this “If it’s different from me, I don’t like it” mentality.
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March 20, 2010, 12:06 pmIdahonian says:
Agreed; this law is, to me, a bad idea...I really don’t see a problem with using international law as the law of decision in particular cases, and I think preventing OK courts from doing so will have some bad consequences. Even if one buys into the assertion that international law embodies bad or anti-American principles, targeting its use in the courts does nothing to solve that and I think conveys a misunderstanding of how courts apply int’l law.
I am merely saying that this law is most probably an ‘expressive’ law, and it should be engaged on those terms. I won’t defend this particular expressive law because I think it’s silly, on the merits. But, as a category, I think they’re useful, legitimate, etc.
For example, http://www.jbs.org/jbs-news-feed/6116-idaho-rejects-health-reform
That statute is obviously preempted, but I think it’s a good one (and not just b/c it’s from my state).
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March 20, 2010, 12:23 pmIdahonian says:
Well, I certainly can’t speak for the people of OK, but I would imagine they “feel the need” to do so because they feel that the norms embodied in international law are undesirable; that they feel as if they have no input in the development of those norms; and that they don’t want EITHER the substance or the process of coming to the substance of those norms imposed upon them. Obviously, this law doesn’t further that felt need...because int’l law applied as the rule of decision isn’t about imposing the norms of int’l law on the residents of OK.
Also, I agree that, in the past and currently, communities have embraced *bad* values, and placed themselves in opposition to *good* values. But, to me, that’s an “on the merits” issue. In other words, the fact that past communities have had bad values does nothing to debunk the idea that current communities should (or do) have values.
Also, I agree with you that the value of “if it’s different from me, I don’t like it” is a bad value to have. But, I think it IS ok, and actually good, to be able to identify differences and reject those differences that a community dislikes.
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March 20, 2010, 12:29 pmRandy says:
Wallace: ” No where near 50% of marriages in America end in Divorce, despite what those on the left wish were true.”
Well, that’s a relief! So now people don’t have to be so crazy against SSM, since marriage really isn’t in as much trouble as they make it out to be.
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March 20, 2010, 12:43 pmFub says:
“The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.” — H. L. Mencken
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March 20, 2010, 12:53 pmDonBoy says:
It’s still not quite the same, but you could compare, in one year, the number of divorces with the number of people who died while they were married. (Those being pretty much all the exit conditions I can think of.) Failing that, I don’t know how you can get any answer to the question of how marriages end except by waiting for everyone in the country to be either divorced or dead.
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March 20, 2010, 12:59 pmPetty Like a God says:
I agree with the points that you’re making.
However–I have trouble believing that the OK legislature is rejecting foreign laws on the merits. They seem to be rejecting foreign law . . . because it’s foreign.
My support for this conclusion is the following: Take the entire body of “international” law, and take the entire body of domestic law for every foreign country in the world. Then throw in the entire body of religious law (Sharia being an example of this). Has the OK legislature truly done work to “identify differences and reject those differences” that they dislike, across this entire vast body of law they are rejecting? No. They are not rejecting particular policies piecemeal–they are rejecting the use of foreign law. Period.
I’m sure it’s already part of OK conflicts-of-law jurisprudence that the courts won’t enforce laws that are in conflict with OK public policy. So it’s not like foreign influence is going to somehow overpower OK’s values (whatever they may be).
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March 20, 2010, 1:18 pmyankee says:
I completely disagree that it should be engaged on its terms as an expressive law. If a law passed to make an expressive point is substantively pernicious, that’s a serious problem regardless of its expressive value. And in this case the law has all sorts of substantive problems, as amply documented above.
Of course, it doesn’t help that the expressive point being made (that Oklahoma needs to be “saved” from state courts applying international law and Sharia law instead of Oklahoma law) is absurd.
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March 20, 2010, 1:21 pmIdahonian says:
I agree, it’s plausible to think that they’re rejecting foreign law because it’s foreign. Could they be doing so on the grounds that they cannot participate in the making of foreign law, and that therefore foreign law is illegitimate?
In other words, it seems to me that there’s a plausible mode of reasoning that would explain their rejection of foreign law because it’s foreign: they think that “law” made without the consent or participation of those upon whom it operates is not law at all, and that such illegitimate laws should not be enforced in OK.
::shoulder shrug:: I dunno; seems plausible. I disagree, again, b/c in choice of law problems courts don’t enforce int’l law to govern primary conduct of OK citizens except as adopted in treaties, which renders it U.S. law. So, they’re ultimately misguided, but I think they could be expressing a plausible disagreement with foreign/international law.
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March 20, 2010, 1:26 pmJaimeInTexas (Jam) says:
If a contract is to be enforced according to, say, Brazilian law but is to be litigated in Oklahoma ....
sue, for malpractice, the lawyer who gave the businessman advice.
Or, the businessman ought to find himself another way of earning a living.
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March 20, 2010, 1:33 pmPlugInMonster says:
Let’s face it, we live in a global economy and measures like this are stupid. No community, state or country is an island unto itself unless it wants to exist in abject horrific misery like North Korea.
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March 20, 2010, 1:41 pmPetty Like a God says:
If the businessman sued the lawyer for malpractice–what would that claim look like? “I claim: My favorable choice-of-law provision that I asked my lawyer to help me negotiate is no longer in the contract. And this is because my lawyer was negligent. My lawyer was negligent because . . . although he knew the law at the time of the contract, he failed to predict that OK would pass this xenophobic amendment to their Constitution.” Do you think that would win? I don’t.
Sure, let’s punish the businessman for being savvy enough to get a (what-was-at-the-time-favorable) choice of law provision into a contract! That’ll make all the businessmen want to do business in OK. Maybe the businessman should get a new career–it’ll probably not involve doing business in OK.
If OK wants to drive away businesses, this might be the ticket.
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March 20, 2010, 2:25 pmAndrew J. Lazarus says:
Probably a very big deal if you are an OK company hoping to grow into a multinational. A stand selling dirt by the side of the road, not so much.
To take this seriously, a surprising assortment of people have never been able to adjust to the shrinking world. I was shocked to read Gandhi on the subject: the truth is, he was an elitist and held a romantic view of villages happy in poverty and ignorance of the world around them. Bin Laden, the same. Doug in San Diego, three of a kind.
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March 20, 2010, 3:19 pmDougInSanDiego says:
I wonder just how much experience you have, Andrew.
Here is a reality check for you.
I don’t, but let’s pretend one of my companies is in Oklahoma and I wish to consummate a deal with a French company (to use the most extreme example imaginable). My Ok. company is bound to use ‘domestic’ law if a dispute is adjudicated in an Ok. court. Gee — that’s not bad for me, as my legal staff has a bit of familiarity with Ok. law. Besides, the good people of Ok. simply wanted to prevent Sharia law (etc etc) from being forced on ‘domestic’ disputes. Thus, Ok. law is pretty much what is in effect in most other states.
But — my French counterpart, being French, does not wish to be bound by Ok. law, fearing there may be some hidden twists his legal staff is not familiar with. He wants disputes heard in a French court, under French law. Now, if it was Sharia law, maybe I could agree — but certainly not French law.
So, I propose Delaware venue & law. Etc etc etc., and we reach an agreement.
Now — since you are ever so informed about contract law and business negotiations — please explain where my company has been damaged, or where I have missed out on a valid business opportunity, or where I and my company have exhibited “an elitist and held a romantic view of villages happy in poverty and ignorance of the world around them.”
Be waiting for your educated response ....
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March 20, 2010, 4:05 pmCornellian says:
But — my French counterpart, being French, does not wish to be bound by Ok. law, fearing there may be some hidden twists his legal staff is not familiar with. He wants disputes heard in a French court, under French law. Now, if it was Sharia law, maybe I could agree — but certainly not French law.
So, I propose Delaware venue & law. Etc etc etc., and we reach an agreement.
I understand that vast majority of such international agreements have a choice of law clause selecting either New York or UK law as the governing law, partly because the commercial law of those jurisdictions is very well known and partly because that’s where armies of big firm lawyers are located. But apparently, such contracts will no longer be enforceable in Oklahoma, at least as regards to UK law.
Another interesting federalism point — could you get a judgment in a New York court that “turned to” foreign law, then enforce it in Oklahoma? Even if the judgment is clearly based on UK law? Or would that also be turning to the dreaded foreign law? Wouldn’t a refusal to enforce it violate full faith and credit?
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March 20, 2010, 5:32 pmJohn Herbison says:
The authorized sources of law listed in the proposed amendment include: “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”. (Emphasis added) There is a further statement that the provisions of the amendment expressly apply to, among other things, “cases of first impression.” This language suggests that that includes cases of first impression involving Oklahoma law.
Does this prohibit the further development of common law in the state courts of Oklahoma? Also, are existing choice of law precepts part of the common law currently applicable in Oklahoma?
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March 20, 2010, 5:37 pmDougInSanDiego says:
We are speaking about a company doing business in (in this example) France. A company selling or otherwise doing business internationally, I would think, is most likely working in NY. The exceptions would probably be few and far between.
Thus, a decision in New york could be enforced in New York, without the need to then pursue a secondary legal action in Ok. That presumes a JUDGMENT and a Writ obtained in NY would NOT be deemed enforceable in Ok. under Ok. law.
Then, of course, there is the likelihood that my fictitious company is probably a Delaware corporation............
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March 20, 2010, 6:20 pmAndrew J. Lazarus says:
I didn’t know Apple and Google were in New York. I suggest, Doug, you be a little slower about accusing other people (e.g., me) of ignorance and then blundering along like this. But in any event, you are reinforcing the point many of us are making: such companies are in NY, and California, and Delaware, and under this law they darn sure won’t be in Oklahoma. How this “saves” Oklahoma is impossible to see.
Incidentally, according to Google, Dollar-Thrifty Rent-a-car is headquartered in Oklahoma, a business I think would be extremely interested in choice-of-venue clauses. Wouldn’t it be too bad if DTG couldn’t do business overseas anymore?
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March 20, 2010, 6:27 pmJohn Herbison says:
Another question. Would such a state constitutional amendment as this burden interstate and foreign commerce sufficiently as to conflict with the powers of Congress in this regard?
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March 20, 2010, 6:28 pmDougInSanDiego says:
If you start sniping, you might expect people to respond accordingly, SIR.
You may want to do a Corporations search for Apple, and for Google, in NY.
Then get back to us.
ps: YES, Andres, we KNOW where their corporate offices are ....................
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March 20, 2010, 6:46 pmAndrew J. Lazarus says:
OK, Doug, I am getting back to you, with a link. Apple is incorporated in California. (Recent 10-K. I believe Google is incorporated in Delaware.
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March 20, 2010, 6:57 pmCornellian says:
A company selling or otherwise doing business internationally, I would think, is most likely working in NY. The exceptions would probably be few and far between.
Thus, a decision in New york could be enforced in New York, without the need to then pursue a secondary legal action in Ok.
“Working in NY” is a very different thing from having assets in NY against which one could enforce a judgment. You have to enforce the judgment where the assets are located if you ever expect to collect.
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March 20, 2010, 7:33 pmDougInSanDiego says:
God, Andrew — read again. We all KNOW they are located in Calif and NOT incorporated in NY.
That does NOT mean they do not have a wholly owned, incorporated entity in NY — without which they would not be able to legally sell there.
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March 20, 2010, 7:43 pmDougInSanDiego says:
Cornellian — it would take a pretty reasonably sized judgment to cause me to forgo sales in NY. Otherwise, OkeyCorp could sit a keeper in the offices and simply take all receipts.
ps: as in the gem?
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March 20, 2010, 7:46 pmS says:
What? Why do they need a NY corp. to sell in NY? Any such NY requirement would be unconstitutional.
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March 20, 2010, 9:07 pmCornellian says:
That does NOT mean they do not have a wholly owned, incorporated entity in NY — without which they would not be able to legally sell there.
What? Why do they need a NY corp. to sell in NY? Any such NY requirement would be unconstitutional.
I thought that was a pretty astounding assertion to make as well. I’d like to see a cite to the NY statute that says only corporations incorporated in NY can sell in NY.
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March 20, 2010, 9:21 pmAndrew J. Lazarus says:
As you may have noticed, Doug is just babbling in the hope of striking some support for his odd contention that an American business is not harmed by a law limiting them to Oklahoma-approved law. Just to take his own example…
Except what is more likely to happen is your French business prospect goes with your Utah competitor who can lawfully agree to their request to use French contract law. You would think this would be pretty obvious, and I wonder how Oklahoma business feels about this nonsense.
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March 20, 2010, 10:34 pmreadery says:
Because the bill’s mention of “Sharia law” appears to specifically single out one religion from all others, it appears to have serious Religion Clause difficulties. If it means Oklahoma courts would be willing to enforce the sort of arbitrations and mediations commonly done in marriage and divorce matters by church or rabbinic tribunals (etc.), but wouldn’t enforce them if done by Moslem authorities, it would be flatly unconstitutional.
It violates various U.S. treaties that require using international law in various situations in state court, such as treaties on international child custody issues and a variety of other matters.
It is also just plain bad policy. It is unwise and impolitic. It reflects a high-handed foolishness that a great power cannot have if it wants to remain great for long.
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March 20, 2010, 10:54 pmAnon says:
This proposed constitutional amendment would likely be unconstitutional in any situation where customary international law (including rules of comity) applied. The Supreme Court has indicated that customary international law is the law of the land unless Congress (or arguably executive decree) has said otherwise. See The Paquette Habana, 175 U.S. 677 (1900) (“International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. ”). See also F. Hoffman-La Roche Ltd. v. Empagran S.A., 542 U.S. 155 (2004) (noting that “[t]his rule of construction reflects principles of customary international law–law that (we must assume) Congress ordinarily seeks to follow.” and citing Restatement (Third) of Foreign Relations Law of the United States §§403(1), 403(2) (1986), Murray v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804), and Hartford Fire Insurance Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting)).
This binding Supreme Court precedent would trump any state constitutional amendment to the contrary via the Supremacy clause.
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March 21, 2010, 12:04 amDougInSanDiego says:
Andrew — you have zero business experience.
Business deals are not made or lost upon venue. That’s idiotic. REALLY idiotic.
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March 21, 2010, 12:29 amDavid Sanger says:
Not quite. You can accurately say that of all the marriages performed in [1980, or any other date], the percentage which have ended in divorce is xx%.....and increasing!
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March 21, 2010, 12:45 amAndrew J. Lazarus says:
Doug, my man, I don’t think someone who thinks Apple needs to incorporate in New York to sell in New York should be telling us about his experience in business. (When in a hole, stop digging.) One reason you aren’t familiar with the idea a deal could fall through because of venue is that, up until now, no state has passed anything so stupid as this proposal. My experience (IANAL, but I’ve worked in a technical firm small enough that I got to read the sales agreements) is that any clause in a contract that can’t be agreed upon is a potential deal-breaker. Now, if you want to bring an argument to the contrary based on deep experience with major international contracts, go ahead. You could start by explaining why this presentation on doing business in China mentions the choice-of-venue clause as very important, suggesting Singapore or Hong Kong and stating that Chinese companies will be unwilling to accept an American venue because of expense. But then, you can’t get good chowmein in Oklahoma anyway.
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March 21, 2010, 1:22 amLoki13 says:
True. But they are lost on choice of law. Have you figured
out the distinction yet?
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March 21, 2010, 1:38 amJ.F. Hickey says:
“Yankee” expresses my sense of this. The legislature telling the courts what they may consider as persuasive authority violates the constitutional separation of powers. The legislature may enact statutes which, if constitutional, the courts must accept as mandatory authority, but any persuasive idea may help the courts in deciding an issue, even it has been articulated by a child or the government of Iran. For the legislature to forbid the courts from “considering” a foreign law is to tell them what they may not think. THe legislature perhaps doesn’t understand the difference between mandatory and persuasive authority.
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March 21, 2010, 6:17 amJ.F. Hickey says:
I missed that too. This raises the interesting general question of how judicial review deals with internally contradictory provisions in constitutions.
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March 21, 2010, 6:32 amS says:
Doug’s discussion of venue agreements is unrealistic. Parties, generally, cannot create venue by agreement, there has to be some other connection to the forum. That is one reason why Okla. residents will loose business, they cannot readily contract around this ridiculous law and out-of-state residents will not want to be in these banana republic Okla. courts.
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March 21, 2010, 8:52 amDougInSanDiego says:
I’ve DONE IT a large number of times in the real world. Can’t recall any of these contracts going to dispute and having the applicable law and venue clause challenged ... so maybe you are right. But, certainly all examples passed scrutiny of legal counsel on both sides before being signed.
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March 21, 2010, 11:15 amDougInSanDiego says:
Agree, Andrew. So why do you continue?
Here is a practical way for you to get up to speed. Think up a “foreign corporation”, foreign to california — meaning not in-state — and search it’s name to see if it has a California filing.
http://kepler.sos.ca.gov/cbs.aspx
You may also with to review the California Corporations Code. I believe this is the relevant section:
CORPORATIONS CODE
SECTION 2100–2117.1
2100. This chapter applies only to foreign corporations transacting
intrastate business, except as otherwise expressly provided.
Have a great day.
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March 21, 2010, 11:36 amAndrew J. Lazarus says:
Doug, this is rather tedious. Does an out-of-state corporation have to file with the SoS, versus need corporations incorporate a wholly-owned subsidiary in the state. Moving the goalposts? I do hope none of your clients is in Oklahoma…
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March 21, 2010, 2:43 pmDel says:
It’s done where there is some other connection to the forum. Whereas, parties can generally contract for any body of law, they cannot make the courts of a jurisdiction hear their dispute, by simple agreement.
Also, none of the statutes you cite make corporations incorporate in State. That, was your bizarre claim.
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March 21, 2010, 2:56 pmJohn Herbison says:
Well, objections to venue are waived, if not timely asserted. Although I suppose that a court could raise the issue sua sponte.
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March 21, 2010, 5:47 pmGuy says:
As I said twice, they obviously did not apply foreign precedent in Lawrence, Justice Kennedy was rebutting the specific claim that homosexuality is incompatible with “western culture”. To the extent that that’s a valid argument at all, it can be rejected by reference to other western countries; it’s a factual question, not a legal question. The Second Amendment link is, still, not about a court ruling at all.
Also, I would not describe myself as an “internationalist”, though I’m not sure what that means.
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March 21, 2010, 7:06 pmJay Casey says:
I’m just wondering if foreign countries could use such a state law to deny int’l treaty rights to Oklahoma citizens or corporations? Say, if I get arrested and framed in China, can they use such a law to deny me access to the US Embassy?
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April 4, 2010, 5:54 pm