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  • 7/30/2019 Foreign Law Bans


    Foreign Law Bans

    Legal Uncertainties and Practical Problems

    Faiza Patel, Matthew Duss, and Amos Toh May 2013


  • 7/30/2019 Foreign Law Bans


  • 7/30/2019 Foreign Law Bans


    Foreign Law BansLegal Uncertainties and Practical Problems

    Faiza Patel, Matthew Duss, and Amos Toh May 2013

    COVER PHOTOThe Rev. Daniel Rosemergy, a minister with the Greater Nashville Unitarian Universalist Congregation and a board member o the MiddleTennessee Interaith Alliance, speaks on Tuesday, March 1, 2011, at a press conerence in Nashville, Tenn., in opposition to a legislativeproposal that would make it a elony in Tennessee to ollow some versions o the Islamic code known as Shariah.

    *Authors note, May 23, 2013: This report has been updated to reect the new anti-oreign law bill that

    recently passed the North Carolina House.

  • 7/30/2019 Foreign Law Bans


  • 7/30/2019 Foreign Law Bans


    A troubling trend is quickly developing in state legislatures across

    the country: In a thinly concealed attempt to iname anti-Muslim

    attitudes, lawmakers in 32 states have moved to ban oreignor international law. The bans are based on model legislation

    designed by anti-Muslim activist David Yerushalmi and promoted

    by activists who have stirred up ears that Islamic laws and cus-

    tomscommonly reerred to as Shariaare taking over Ameri-

    can courts. Although proponents o these bans have ailed to cite

    a single instance where a U.S. court has relied on Sharia to resolve

    a dispute, oreign law bans have been enacted in Oklahoma,

    Kansas, Louisiana, Tennessee, and Arizona, while a related ban on

    religious law has been enacted in South Dakota.

    Although attacking a problem that does not exist, oreign lawbans threaten to create genuine problems o their own. Several

    o the bans stray rom well-established rules that courts ollow

    in applying oreign law. The bans in Kansas and Oklahoma, or

    example, seem to require judges to reject any oreign law or judg-

    ment that comes rom a country that does not protect rights in

    the same way that the United States does. This could have serious

    unintended consequences or people o all aiths, including:

    Disrupting amily lie: Marriage licenses, prenuptial agree-

    ments, adoption agreements, divorce decrees, and child cus-

    tody orders may not be honored in several U.S. states simply

    because they are based on a religious creed or oreign law.

    Frustrating religious arbitrations: Since most oreign law

    bans also apply to arbitration tribunals, they call into ques-

    tion the ability o religious believers to settle amily and other

    personal disputes through arbitration.

    Thwarting choice o law in litigation and arbitration: Com-

    mercial parties requently choose the law o another country

    to govern how a dispute is resolved. The bans are likely tocompel state tribunals to override such a choice in a greater

    number o cases.

    Difculties enorcing oreign money judgments and

    tral awards: Parties may experience diculties when try

    to enorce a judgment or arbitral award obtained in anocountry that does not protect due process and other con

    tional rights in the same way that the United States doe

    Foreign law bans also raise a host o other issues, includin

    Violating the separation o powers:The separation o

    ers prevents the concentration o too much power in any

    branch o government. Giving state legislatures the pow

    to dictate what legal sources the courts can look at whe

    interpreting the law undermines this undamental princ

    American governance.

    Invalidating court decisions in other states: State cou

    bound to give ull aith and credit to court decisions o

    states. A oreign law ban could aect that arrangement w

    another state has considered oreign laws.

    Banning international law: Some o the bans are so bro

    that they may cover international law. This body o law is

    o the laws o the land under the Supremacy Clause and

    treated just like ederal law. But the bans pull out this ca

    o law or special scrutiny.

    Foreign law bans are currently a solution in search o a pro

    I these bans become law, however, states may soon be se

    ing or solutions to the problems they have created.

    Quick Facts

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  • 7/30/2019 Foreign Law Bans


    1 Introduction and summary

    5 From anti-Sharia measures to oreign law bans

    9 International and oreign law in American courts

    15 New wave o oreign law bans: Legal uncertainties

    25 New wave o oreign law bans: Practical problems

    33 Discriminatory impact o oreign law bans

    37 Conclusion

    39 About the authors and acknowledgements

    41 Appendix

    49 Endnotes


  • 7/30/2019 Foreign Law Bans


  • 7/30/2019 Foreign Law Bans


    Introduction and summary | www.americanprogress.

    Introduction and summary

    Over he pas wo years, a number o sae legislaures have moved o ban he

    use o oreign or inernaional law in legal dispues. As o he dae o his repor,

    lawmakers in 32 saes have inroduced and debaed hese ypes o bills.1 Foreign

    law bans have already been enaced in Oklahoma, Kansas, Louisiana, ennessee,

    and Arizona, while a relaed ban on he enorcemen o any religious code has

    been enaced in Souh Dakoa.2 Mos recenly, inensive campaigning by he

    Ani-Deamaion League and religious reedom groups resuled in he deea o

    a proposed oreign law ban in Florida.3 Bu a leas six saes are poised o passsimilar measures in 2013 and 2014: Missouri, Norh Carolina, exas, Alabama,

    Souh Carolina, and Iowa.4 able 1 below illusraes he ani-oreign law move-

    men across he counry.

    Alhough packaged as an eor o proec American values and democracy, he

    bans spring rom a movemen whose goal is he demonizaion o he Islamic

    aih. Beyond ha, however, many oreign law bans are so broadly phrased as o

    cas doub on he validiy o a whole hos o personal and business arrangemens.

    Teir enacmen could resul in years o liigaion as sae cours sruggle o con-

    srue wha hese laws acually mean and how hey inerac wih well-esablished

    legal docrines. Te legal uncerainies creaed by oreign law bans are he reason

    why a range o business and corporae ineress as well as represenaives o aih

    communiies have mobilized agains hem. Te American Bar Associaion, he

    counrys larges and mos respeced associaion o legal proessionals, has also

    passed a resoluion opposing he bans.5

    Te mos vocierous proponens o oreign law bans are a small nework o aciv-

    iss who cas Muslim norms and culure, which hey collecively and inaccuraely

    labeled as Sharia law, as one o he greaes hreas o American reedom since heCold War.6 Ground zero or his eor was Oklahoma, and he lessons learned

    here provided a emplae or ani-Sharia eors in oher saes. On Elecion Day

    2010 Oklahoma voers overwhelmingly approved he Save Our Sae reerendum,

    a ballo iniiaive ha banned he use o Sharia in he saes cours.7 While he

    Foreign law ban

    have already

    been enacted

    in Oklahoma,

    Kansas, Louisian

    Tennessee, and

    Arizona, while a

    related ban on t

    enorcement o

    any religious co

    has been enacte

    in South Dakota

  • 7/30/2019 Foreign Law Bans


    2 Center or American Progress | Foreign Law Bans

    Oklahoma measure was immediaely challenged in cour, and ulimaely sruck

    down as unconsiuionally discriminaory oward American Muslims,8 is propo-

    nens launched a naionwide movemen o recas ani-Sharia measures as bans on

    oreign and inernaional law. Tis involved removing specic reerences o Islam

    in order o help he measures pass legal muser and successully apping ino deep-

    rooed suspicions abou he inuence o oreign laws over he American legalsysem. While he inen o oreign law bans is clear,9 proponens o hese bans

    hope ha he oreign law veneer will save he measures rom being invalidaed on

    consiuional grounds.

    FIGURE 1

    Foreign law bans across the United States


    Introduced in 2013

    Other states to watch

    Source: Various news media.

  • 7/30/2019 Foreign Law Bans


    Introduction and summary | www.americanprogress.

    Mos oreign law bans are craed so ha hey seem o rack he rules normally ol-

    lowed by cours when considering wheher o apply oreign law. Sae cours con-

    sider drawing upon oreign law in siuaions ranging rom conrac dispues where

    he paries have seleced he law o anoher naion as conrolling, o cases where

    he validiy o a marriage or cusody arrangemen concluded in anoher counry

    are quesioned. And sae cours rouinely apply oreign lawprovided i does noviolae U.S. public policy. Sae cours, or example, will no recognize polygamous

    marriages, which are permited in some Muslim counries, and mos o hem will

    no recognize marriages beween same-sex couples, which are permited in many

    European counries. While cases involving oreign law occasionally impinge upon

    American public policy concerns, mos are quie unconroversial. A ypical case

    involving oreign lawdescribed by U.S. Supreme Cour Jusice Anonin Scalia

    in a recen speechwould be one where he Cour, or example, was called on o

    decide wheher a corporaion organized in he Briish Virgin Islands was a ciizen

    or subjec o a oreign sae.10 T


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