The Battle Between Oklahoma and Foreign Law
Yesterday was election day in the United States, when the entire House of Representative and one third of the US Senate stood for reelection. It was also a day when ballot measures were taken up in several states. Strangely, choice of law was on the ballot in one state. Voters in Oklahoma were given the option to approve the following measure:
“The Courts . . . when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law.”
Nearly 70% of those voting approved the measure to ban the use of international law and Sharia law in Oklahoma state courts. While this bears some resemblance to initiatives in the 1800s that sought to prevent US courts from relying on the common law, I am fairly comfortable in stating that this may very well be the first time the US electorate (or the electorate of one US state) has voted on a choice of law initiative and has voted to close a state’s doors to foreign, non-U.S. law. I have no doubt that the courts will be asked to step in to reivew this. It may be the case that such a ban is unconstitutional under the First Amendment, as my colleague Michael Helfand has recently explained. And to think that most Americans thought this election was about the economy!
Trey, would this not be a matter for the due process clause? Could Oklahoma courts apply Oklahoma law to a case with no connections to Oklahoma? Could they categorically reject enforcement of a foreign judgment?
But maybe these problems can be avoided altogether. Courts might interpret this amendment narrowly as concerning only references to foreign law outside the choice-of-law context, for comparative law purposes. I suppose that is what the electorate had in mind (if they had anything in mind).
Often, a “just” decision can only be found by applying foreign/international law. Exactly as Ralf just said, other law may have little or no connection to a case. Reasoning will require that judges keep applying rules of international/foreign law (but in future without citing the relevant treaty/statute).
People were apparently concerned about certain rules of Islamic law which they think do not “fit” into their culture. But then, would civil courts apply all of the rules of the Shari, without any respect to more fundamental rules?
Ralf, I think you raise some good points. To the extent and Oklahoma court directed to apply foreign law under Oklahoma choice of law rules refuses to apply that law under this measure, it would have to find a state law, whether Oklahoma or otherwise, that has signficant contacts or significant aggregation of contacts with the case to make the application of that law constitutional under Allstate v. Hague. If it can’t find such a state, then I would imagine forum non would be in order. I imagine they could affirmatively refuse to enforce a judgment under public policy, using this measure as a proxy for public policy. What do you think?
Presumably the courts of Oklahoma will have to consider “international law” contained in treaties that, by virtue of the US Constitution, are declared to be Federal law.
Another Federal law which may cause problems is the Federal Arbitration Act, in so far as Sharia courts are arbitral tribunals to which that Act applies (and in so far as arbitral tribunals are asked to apply foreign law in disputes between Oklahoma-based businesses and non-US businesses).