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Davis: Shadow and Substance

Davis: Shadow and Substance

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The “American law in American courts” movement has gained momentum in recent years, with some state courts now legislatively barred from citing international or foreign law and almost all judges now scrutinized for their American bona fides. Much of the scholarship addressing anti-international law proposals has focused on the proposals’ merits. This Article, in contrast, assumes that international and foreign law are often necessary components of a domestic state court judge’s decisionmaking. The Article then looks at the likely impact of these laws and proposals on state court judges and courts. Social-science data on adjudication as well as other available information suggest that the anti-international law debate playing out in state legislatures may have significant impacts on judicial decisionmaking, particularly in state courts. Even in jurisdictions without a formal bar on such references, a jurist may be tempted not to cite to international or foreign law to avoid unnecessary controversy and preserve his or her future political viability. To complicate matters, the crisis of resources facing state courts means that state court judges rarely have sufficient research support to fully explore the facets of international and foreign law relevant to the cases before them, even if they deem it important to their decisionmaking. While adopting elements of the federal system such as life tenure and merit selection are possible responses, this Article also suggests more near-term approaches, including interventions by law schools and the bar designed to support the continued tradition of state court references to international and foreign law.
The “American law in American courts” movement has gained momentum in recent years, with some state courts now legislatively barred from citing international or foreign law and almost all judges now scrutinized for their American bona fides. Much of the scholarship addressing anti-international law proposals has focused on the proposals’ merits. This Article, in contrast, assumes that international and foreign law are often necessary components of a domestic state court judge’s decisionmaking. The Article then looks at the likely impact of these laws and proposals on state court judges and courts. Social-science data on adjudication as well as other available information suggest that the anti-international law debate playing out in state legislatures may have significant impacts on judicial decisionmaking, particularly in state courts. Even in jurisdictions without a formal bar on such references, a jurist may be tempted not to cite to international or foreign law to avoid unnecessary controversy and preserve his or her future political viability. To complicate matters, the crisis of resources facing state courts means that state court judges rarely have sufficient research support to fully explore the facets of international and foreign law relevant to the cases before them, even if they deem it important to their decisionmaking. While adopting elements of the federal system such as life tenure and merit selection are possible responses, this Article also suggests more near-term approaches, including interventions by law schools and the bar designed to support the continued tradition of state court references to international and foreign law.

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Published by: New England Law Review on May 22, 2013
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Shadow and Substance: The Impacts ofthe Anti-International Law Debate onState Court Judges
M
ARTHA
F.
 
D
AVIS
*
A
BSTRACT
 
The “American law in American courts” movement has gainedmomentum in recent years, with some state courts now legislatively barredfrom citing international or foreign law and almost all judges nowscrutinized for their American bona fides. Much of the scholarshipaddressing anti-international law proposals has focused on the proposals’merits. This Article, in contrast, assumes that international and foreign laware often necessary components of a domestic state court judge’sdecisionmaking. The Article then looks at the likely impact of these lawsand proposals on state court judges and courts. Social-science data onadjudication as well as other available information suggest that the anti-international law debate playing out in state legislatures may havesignificant impacts on judicial decisionmaking, particularly in state courts.Even in jurisdictions without a formal bar on such references, a jurist may be tempted not to cite to international or foreign law to avoid unnecessarycontroversy and preserve his or her future political viability. To complicatematters, the crisis of resources facing state courts means that state court judges rarely have sufficient research support to fully explore the facets ofinternational and foreign law relevant to the cases before them, even if theydeem it important to their decisionmaking. While adopting elements of thefederal system such as life tenure and merit selection are possibleresponses, this Article also suggests more near-term approaches, including
* Martha F. Davis is a Professor of Law at Northeastern University School of Law, Boston,Massachusetts. Thanks to James Craig and Cassandra Montgomery for their excellent researchassistance, and to Rick Doyon for his technical assistance.
 
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New England Law Review
v. 47 | 631
interventions by law schools and the bar designed to support the continuedtradition of state court references to international and foreign law.
I
NTRODUCTION
 
n November 2010, the citizens of Oklahoma voted overwhelmingly tostrip their state courts of the authority to consider international orforeign precedent, singling out Sharia law for special reference.
1
 Implementation of the Oklahoma referendum, which amended the stateconstitution, was subsequently enjoined on First Amendment grounds,first by the U.S. District Court and then by the U.S. Court of Appeals forthe Tenth Circuit.
2
Despite that injunction, copycat measures—stateconstitutional amendments as well as state legislation—have subsequently been considered in at least twenty states.
3
Most of these legislativecampaigns have failed to achieve changes in the law, but a few of theresulting proposals have been adopted.
4
Indeed, in 2012, Kansas GovernorSam Brownback signed into law a measure forbidding Kansas state courtsfrom relying on international or foreign law.
5
A handful of other states,including Tennessee and Louisiana, have adopted similar provisions:specialized choice-of-law legislation that explicitly disfavors application ofinternational or foreign law.
6
 The text of the Kansas law is representative of this second wave offacially neutral provisions. It states that:Any court, arbitration, tribunal or administrative agencyruling or decision shall violate the public policy of thisstate and be void and unenforceable if the court,
1
H.R.J. Res. 1056, 52nd Leg., 2d Sess. (Okla. 2010),
available at
https://www.sos.ok.gov/documents/questions/755.pdf (outlining the complete text of thelegislative resolution).
2
Awad v. Ziriax, 754 F. Supp. 2d 1298, 1308 (W.D. Okla. 2010),
aff’d
 , 670 F.3d 1111 (10thCir. 2012).
3
Bill Raftery,
Bans on Court Use of Sharia/International Law: 33 Bills in 20 States to Start 2012;Review of All Efforts Since 2010
 , G
AVEL TO
G
AVEL
(Jan. 30, 2012),http://gaveltogavel.us/site/2012/01/30/bans-on-court-use-of-shariainternational-law-33-bills-in-20-states-to-start-2012-review-of-all-efforts-since-2010/.
4
 
Id
.
5
 
Kansas Governor Signs Measure Blocking Islamic Law
 , USA
 
T
ODAY
(May 26, 2012),http://usatoday30.usatoday.com/news/religion/story/2012-05-26/kansas-governor-signs-anti-sharia-law/55224584/1 [hereinafter USA
 
T
ODAY
 ,
Kansas Governor Signs Measure
].
6
Martha F. Davis & Johanna Kalb,
Oklahoma and Beyond: Understanding the Wave of State Anti-Transnational Law Initiatives
 , 87
 
I
ND
.
 
L.J.
 
S
UPP
.
 
1, 3-4 (2011). These measures essentiallycodify conflict-of-law provisions that were already well-established under existing commonlaw principles.
I
 
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arbitration, tribunal or administrative agency bases itsrulings or decisions in the matter at issue in whole or inpart on any foreign law, legal code or system that wouldnot grant the parties affected by the ruling or decision thesame fundamental liberties, rights and privileges grantedunder the United States and Kansas constitutions,including, but not limited to, equal protection, dueprocess, free exercise of religion, freedom of speech orpress, and any right of privacy or marriage.
7
 While this newly-enacted measure does not explicitly mention Sharialaw, much of the public debate in Kansas centered on the perceived threatthat Sharia law might be incorporated into domestic law through judicialoverreaching.
8
For example, State Senator Susan Wagle, a WichitaRepublican, asserted during floor debate of the measure that judicialcitation of Sharia law by state courts is a women’s rights issue, noting that“[t]hey stone women to death in countries that have Shariah law.”
9
Thelegislation’s supporters also dismissed the idea that judicial reference toforeign law might be legally appropriate in some circumstances. Forexample, a statement from the Governor’s Office identifies state court judges themselves as the source of the threat, stating that the legislation isnecessary because of the “disturbing recent trend of activist judges relyingupon the laws of other nations.”
10
 Because few states have actually enacted these measures, and becausethe constraints that they place on sitting judges may be vague or elusive,
11
 some observers have called the debate concerning U.S. court reliance oninternational and comparative law a “storm in a teacup.”
12
After all, they
7
An Act Concerning the Protection of Rights and Privileges Granted Under the UnitedStates or Kansas Constitutions, S.B. 79, § 3 2011-2012 Leg. (Kan. 2012),
available at
 http://kslegislature.org/li_2012/b2011_12/measures/SB79/.
8
 
See,
 
e.g.
 ,
Kansas Senate Passes Law Banning Sharia, Other Foreign Laws from State Courts
 , N.Y.
 
D
AILY
N
EWS
 , May 11, 2012, http://www.nydailynews.com/news/politics/kansas-senate-passes-law-banning-sharia-foreign-laws-state-courts-article-1.1076862 [hereinafter N.Y.
 
D
AILY
N
EWS
 ,
Kansas Senate Passes Law Banning Sharia
]; Op-Ed.,
Brownback Caves on Anti-Sharia Law
 ,W
INFIELD
D
AILY
C
OURIER
 , May 31, 2012,http://www.winfieldcourier.com/articles/2012/05/31/opinion/editorial/doc4fc6d90f55afb073062336.txt (asserting that “everyone in the capitol” knew the measure was targeting Sharia law).
9
N.Y.
 
D
AILY
N
EWS
 ,
Kansas Senate Passes Law Banning Sharia
 ,
supra
note 8 (internalquotation marks omitted).
10
Andy Marso,
Brownback Signs Bill that Caused Sharia Flap
 , T
OPEKA
C
APITOL
-J., May 25,2012, http://cjonline.com/news/2012-05-25/brownback-signs-bill-caused-sharia-flap.
11
For a detailed discussion of the vague language of these provisions, see Penny M.Venetis,
The Unconstitutionality of Oklahoma’s SQ 755 and Other Provisions Like It that Bar StateCourts from Considering International Law
 , 59 C
LEV
.
 
S
T
.
 
L.
 
R
EV
.
 
189, 196, 200 (2011).
12
 
See, e.g.
 , Austen L. Parrish,
Storm in Teacup: The U.S. Supreme Court’s Use of Foreign Law
 ,

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