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Shadow and Substance: The Impacts of the Anti-International Law Debate on State Court Judges

MARTHA F. DAVIS* ABSTRACT


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 judges 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 antiinternational 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

* 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 research assistance, and to Rick Doyon for his technical assistance.

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interventions by law schools and the bar designed to support the continued tradition of state court references to international and foreign law.

INTRODUCTION
n November 2010, the citizens of Oklahoma voted overwhelmingly to strip their state courts of the authority to consider international or foreign precedent, singling out Sharia law for special reference.1 Implementation of the Oklahoma referendum, which amended the state constitution, was subsequently enjoined on First Amendment grounds, first by the U.S. District Court and then by the U.S. Court of Appeals for the Tenth Circuit.2 Despite that injunction, copycat measuresstate constitutional amendments as well as state legislationhave subsequently been considered in at least twenty states.3 Most of these legislative campaigns have failed to achieve changes in the law, but a few of the resulting proposals have been adopted.4 Indeed, in 2012, Kansas Governor Sam Brownback signed into law a measure forbidding Kansas state courts from 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 of international or foreign law.6 The text of the Kansas law is representative of this second wave of facially neutral provisions. It states that: Any court, arbitration, tribunal or administrative agency ruling or decision shall violate the public policy of this state 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 the legislative resolution). 2 Awad v. Ziriax, 754 F. Supp. 2d 1298, 1308 (W.D. Okla. 2010), affd, 670 F.3d 1111 (10th Cir. 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, GAVEL TO GAVEL (Jan. 30, 2012), http://gaveltogavel.us/site/2012/01/30/bans-on-court-use-of-shariainternational-law-33-bills-in20-states-to-start-2012-review-of-all-efforts-since-2010/.

Id. Kansas Governor Signs Measure Blocking Islamic Law, USA TODAY (May 26, 2012), http://usatoday30.usatoday.com/news/religion/story/2012-05-26/kansas-governor-signs-antisharia-law/55224584/1 [hereinafter USA TODAY, Kansas Governor Signs Measure].
5 6 Martha F. Davis & Johanna Kalb, Oklahoma and Beyond: Understanding the Wave of State Anti-Transnational Law Initiatives, 87 IND. L.J. SUPP. 1, 3-4 (2011). These measures essentially codify conflict-of-law provisions that were already well-established under existing common law principles.

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arbitration, tribunal or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on any foreign law, legal code or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights and privileges granted under the United States and Kansas constitutions, including, but not limited to, equal protection, due process, free exercise of religion, freedom of speech or press, and any right of privacy or marriage.7 While this newly-enacted measure does not explicitly mention Sharia law, much of the public debate in Kansas centered on the perceived threat that Sharia law might be incorporated into domestic law through judicial overreaching.8 For example, State Senator Susan Wagle, a Wichita Republican, asserted during floor debate of the measure that judicial citation of Sharia law by state courts is a womens rights issue, noting that [t]hey stone women to death in countries that have Shariah law.9 The legislations supporters also dismissed the idea that judicial reference to foreign law might be legally appropriate in some circumstances. For example, a statement from the Governors Office identifies state court judges themselves as the source of the threat, stating that the legislation is necessary because of the disturbing recent trend of activist judges relying upon the laws of other nations.10 Because few states have actually enacted these measures, and because the constraints that they place on sitting judges may be vague or elusive,11 some observers have called the debate concerning U.S. court reliance on international 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 United States 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. DAILY NEWS, May 11, 2012, http://www.nydailynews.com/news/politics/kansas-senate-passeslaw-banning-sharia-foreign-laws-state-courts-article-1.1076862 [hereinafter N.Y. DAILY NEWS, Kansas Senate Passes Law Banning Sharia]; Op-Ed., Brownback Caves on Anti-Sharia Law, WINFIELD DAILY COURIER, May 31, 2012, http://www.winfieldcourier.com/articles/2012/05/31/opinion/editorial/doc4fc6d90f55afb073062 336.txt (asserting that everyone in the capitol knew the measure was targeting Sharia law). 9 N.Y. DAILY NEWS, Kansas Senate Passes Law Banning Sharia, supra note 8 (internal quotation marks omitted). 10 Andy Marso, Brownback Signs Bill that Caused Sharia Flap, TOPEKA CAPITOL-J., May 25, 2012, http://cjonline.com/news/2012-05-25/brownback-signs-bill-caused-sharia-flap.

For a detailed discussion of the vague language of these provisions, see Penny M. Venetis, The Unconstitutionality of Oklahomas SQ 755 and Other Provisions Like It that Bar State Courts from Considering International Law, 59 CLEV. ST. L. REV. 189, 196, 200 (2011).
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See, e.g., Austen L. Parrish, Storm in Teacup: The U.S. Supreme Courts Use of Foreign Law,

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argue, these new facially neutral proposals simply reinforce legislatively what is already a legal chestnut in conflict of law situations, i.e., that a court should not rely on foreign law to override a states fundamental public policy.13 This Article argues, however, that the anti-international law debate playing out in state legislatures and conservative blogs may have negative impacts on judicial decisionmaking, particularly in the state courts.14 As the American law in American courts mantra has gained salience, more and more judges are now scrutinized for their American bona fides.15 As a result of this pressure, a judge may be reluctant to develop the international or comparative issues raised in domestic cases because he or she will be tarred as un-American. This Article proceeds as follows. First, in a background section, I discuss state-level debates on judicial reliance on foreign and international law, focusing on two cases that have been repeatedly cited by supporters of restrictive legislation. Second, I examine the legal impact of the proposed restrictions on foreign and international law, noting the wide agreement that foreign and international sources have a place in domestic legal analysis. Third, I examine data on judicial independence and discuss the aspects of state courts that make them particularly susceptible to public and political pressure of the kind mounted by supporters of foreign law bans. Finally, I offer some suggestions for more effective responses to antiinternational law proposals.

BACKGROUND
More than eleven years after the September 11 attacks on the U.S., concern about foreign infiltration of domestic institutions still runs deep. Americans endure long waiting lines at airports, increased security in public buildings of all kinds, and heightened police vigilance throughout the country, all because of this concern.16 Though the threat is less

2007 U. ILL. L. REV. 637, 637-38 (2007). 13 See Monrad G. Paulson & Michael I. Sovern, Public Policy in the Conflicts of Laws, 56 COLUM. L. REV. 969, 969 (1956) (noting that choice of law rules are normally subject to a public policy limitation).
14 I focus on state court judges because, without life tenure, they are likely to be more vulnerable to political shifts. Further, while the principle of separation of powers is wellestablished federally, and acts as a brake on Congress meddling in judicial decisionmaking, the principle is not part of all state constitutions. See Venetis, supra note 11, at 212-13.

See, e.g., Am. Pub. Policy Alliance, American Laws for American Courts, PUB. POLY ALLIANCE, http://publicpolicyalliance.org/legislation/american-laws-for-american-courts/ (last visited Jan. 8, 2013) (criticizing courts that reference foreign law).
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Jason Villemez & Dalia Mortada, 9/11 to Now: Ways We Have Changed, PBS NEWSHOUR

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immediate and less physical, many Americans are also concerned about foreign infiltration of the domestic legal system. They believe that antiAmerican terrorists may seek to achieve their ends through co-optation and redirection of the American judiciary toward foreign-influenced approaches to decisionmaking.17 Responding to this concern, legislators in more than twenty states have proposed measures that, to varying degrees, would inhibit state judges from relying on international or foreign law in rendering decisions.18 The measures proposed thus far run the gamut from complete bans on judicial consideration of foreign or international materials to provisions that would create new statutory choice-of-law measures that disfavor foreign law.19 In each case, inflexible legislative rules are substituted for more nuanced approaches to choice-of-law questions that the state courts have developed over decades, and even centuries, of case law.20 Two state court cases in New Jersey and Kansas, respectively, have served as rhetorical touchstones for the campaigns in support of these restrictions on judicial decisionmaking. The first case, S.D. v. M.J.R., involved a decision rendered by a lower court judge in New Jersey and later overturned on appeal.21 The case particulars served as the story line for the campaign to pass the anti-international law measure in Oklahoma in 2010.22 In S.D. v. M.J.R., an abused wife in an arranged marriage initiated a complaint against her Moroccan husband under New Jerseys Prevention

(Sept. 14, 2011), http://www.pbs.org/newshour/rundown/2011/09/911-to-now-ways-we-havechanged.html.


17 See, e.g., Becky Yeh, The Goal of Terrorism? Sharia Law, ONENEWSNOW (Apr. 14, 2011), http://onenewsnow.com/national-security/2011/04/14/the-goal-of-terrorism-sharia-law. 18 Bill Raftery, Bans on Court Use of Sharia/International Law, GAVEL TO GAVEL (May 29, 2012), http://gaveltogavel.us/site/2012/05/29/bans-on-court-use-of-shariainternational-lawsigned-into-law-in-kansas-sent-to-study-committee-in-new-hampshire-still-technically-alivein-mi-nc-pa-sc/ [hereinafter Raftery, Bans on Court Use of Sharia]. Federal legislators have made similar proposals to control decisionmaking by federal courts. See Davis & Kalb, supra note 6, at 3.

See, e.g., H.J. Res. No. 14, 84th Gen. Assemb. (Iowa 2011) (banning the use of legal precepts of other nations or cultures); H.B. No. 631, 2012 Reg. Sess. (Va. 2012) (providing that a foreign choice of law provision in any contract, arbitration agreement, or other agreement is unenforceable).
20 See, e.g., Aaron Fellmeth, International Law and Foreign Laws in U.S. State Legislatures, ASIL INSIGHTS, May 26, 2011, at 1, available at http://www.asil.org/pdfs/insights/insight110526.pdf. 21 S.D. v. M.J.R., 2 A.3d 412, 412 (N.J. Super. Ct. App. Div. 2010). 22 Bill Mears, Federal Court Blocks Oklahoma Ban on Sharia, CNN JUSTICE (Jan. 10, 2012), http://www.cnn.com/2012/01/10/justice/oklahoma-sharia/index.html.

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of Domestic Violence Act (Act), alleging repeated acts of rape and other abuse.23 The Act creates a civil cause of action for engaging in abusive activities, as defined by New Jersey criminal law.24 S.D. and M.J.R. were in divorce proceedings at the time of the civil action, a fact which seemed to influence the trial judges view as to whether a finding of domestic violence under the Act was warranted. Ruling from the bench on the defendants motion challenging the complaint, the judge expressed the view that the couple simply had a bad patch and that they were now both moving on from the marriage.25 The judge proceeded to address the legal merits of the abuse claim, with particular attention to whether the husband had the requisite mens rea to commit one of the predicate criminal offenses encompassed by New Jersey abuse law.26 To assess this question, the judge relied on testimony from an Imamwho was called as a fact witness rather than an expertto explicate the precepts of Islamic law concerning wives presumed sexual availability to their husbands.27 Based on the Imams testimony, the judge dismissed the wifes complaint, ruling that the husband could not have had the requisite mens rea for a violation of the New Jersey law.28 In blogs, on Twitter, and in other media, the decision was characterized as an example of the dangers of Muslim infiltration of the judiciary, with particular implications for womens rights.29 The wifes lawyer, Jennifer Donnelly of New Jersey Legal Services promoted this view, asserting on Fox News that the lower courts decision should spur enactment of statelevel restrictions on citation to Sharia law in order to ensure that abused women in the United States are not further victimized when their abusers offer religious defenses for their actions.30 On appeal, however, the intermediate appellate court made quick work of what it viewed as a clear error by the lower court judge. The appellate opinion reviewed at length the controlling U.S. Supreme Court law dealing with the tension between religious practice and criminal law, particularly in the analogous context of Mormon practices of polygamy.31

S.D., 2 A.3d at 418; see also Prevention of Domestic Violence Act of 1991, N.J. STAT. ANN. 2C:25-17 et seq. (West 2012). 24 See N.J. STAT. ANN. 2C:25-28(a). 25 See S.D., 2 A.3d at 426. 26 Id. at 421-22. 27 Id. at 417-18. 28 See id. at 418. 29 See, e.g., Sharia Law Comes to New Jersey?, FOX NATION (Aug. 6, 2010), http://nation.foxnews.com/justice/2010/08/06/sharia-law-comes-new-jersey.
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Id. See, e.g., Reynolds v. U.S., 98 U.S. 145, 166 (1878) ([W]hile [laws] cannot interfere with

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According to the New Jersey Appeals Court, this controlling case law clarified that the issue in S.D. v. M.J.R. was not whether the husband had criminal intent to abuse his wife, but whether he knowingly engaged in the conduct at issue and whether the conduct was prohibited by laws of general applicability (i.e., laws that did not single out particular religious practices).32 The appellate court concluded [b]ecause it is doubtlessly true that the laws defining the crimes of sexual assault and criminal sexual contact are neutral laws of general application, and because defendant knowingly engaged in conduct that violated those laws, the judge erred when he refused to recognize those violations as a basis for a determination that defendant had committed acts of domestic violence.33 After the appellate court decision, S.D. and M.J.R.s case was returned to the trial court for a final resolution. But in the age of Internet and online organizing, the trial courts vacated decision in S.D. v. M.J.R. became a critical component of the successful campaign in Oklahoma to pass a statewide referendum amending the state constitution to bar judges from considering international, foreign, or Sharia law.34 Oklahomas 2010 referendum enjoyed overwhelming popular support, garnering approval of 70 percent of the voters.35 When State Representative Rex Duncan, the resolutions author, was asked why he proposed the measure, he called it a preemptive strike against activist judges.36 Though he could not identify any Oklahoma court that had misusedor even citedSharia law, Duncan was inspired, he said, by the 2010 case in New Jersey family court, S.D. v. M.J.R.37 A Muslim resident of Oklahoma filed a federal claim for injunctive relief, asserting hat the new constitutional amendment would unconstitutionally prevent him from incorporating Sharia law into his will

mere religious belief and opinions, they may [interfere] with practices.); S.D., 2 A.3d at 42225. See S.D., 2 A.3d at 421, 426. Id. at 426. 34 See, e.g., Lee Tankle, The Only Thing We Have to Fear is Fear Itself: Islamophobia and the Recently Proposed Unconstitutional and Unnecessary Anti-Religion Laws, 21 WM. & MARY BILL RTS. J. 273, 280-82 (2012). 35 Barbara Bradley Hagerty, All Things Considered: Court Strikes Down Oklahoma Shariah Ban, NATL PUB. RADIO (Jan. 10, 2012), available at http://www.npr.org/2012/01/10/144984595/courtstrikes-down-okla-sharia-ban.
33 32

Leah Nelson, Oklahomas Sharia Law Ban Creates Controversy, INTELLIGENCE REP., no. 141 (Spring 2011), http://www.splcenter.org/get-informed/intelligence-report/browse-allissues/2011/spring/oklahoma-shariah-law-ban-creates-controversy.
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Id.

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as a framework for distributing his assets through probate court.38 The federal district court and the Tenth Circuit Court of Appeals agreed that the measures focus on Sharia law violated the First Amendment of the U.S. Constitution and entered a broad injunction against the entire constitutional referendum.39 Legislators in Oklahoma have since introduced statutory proposals that would bar all reliance on foreign and international law, but none of these legislative measures have been enacted.40 The second case that has served as a rhetorical centerpiece for a statelevel anti-international law campaign originated in Wichita, Kansas. Kansas is home to an estimated 8,000 Muslims, with the majority of those living in Wichitathe most populous city in the state.41 Following the Oklahoma referendum, Kansas State Representative Peggy Mast introduced an anti-international measure in the Kansas State legislature.42 Unlike Oklahomas constitutional referendum, the Kansas proposal was a statute. Further, the Kansas measure was explicitly patterned on model legislation developed by the American Public Policy Alliance (APPA). Responding to First Amendment concerns raised by the federal courts reviewing the Oklahoma measure, the APPAs model did not specifically ban Sharia law.43 Rather, Representative Masts proposal simply gave primacy to domestic sources of law over foreign or international sources when the latter did not adequately recognize core American legal values.44 Despite the proposals religion-neutral text, much of the public debate in Kansas centered on the impact of the legislation on Sharia law.45 As in

Awad v. Ziriax, 754 F. Supp. 2d 1298, 1304 (W.D. Okla. 2010), affd, 670 F.3d 1111 (10th Cir. 2012). Id. at 1307-08; Awad, 670 F.3d at 1132-33. Raftery, Bans on Court Use of Sharia, supra note 18. 41 Dave Roberts, Being Muslim in Kansas, KWCH 12 EYEWITNESS NEWS (Oct. 31, 2010, 8:01 PM), http://www.kwch.com/news/kwch-news-dr-kansas-muslims,0,5533930.htmlstory.
40 39

38

Marso, supra note 10. See Tim Murphy, Meet the White Supremacist Leading the GOPs Anti-Sharia Crusade, MOTHER JONES (Mar. 1, 2011, 4:00 AM), http://www.motherjones.com/politics/2011/02/davidyerushalmi-sharia-ban-tennessee (describing evolution of anti-Sharia proposals).
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Lawmakers Pass Anti-Sharia Measure, LAWRENCE J.-WORLD (May 11, 2012), http://www2.ljworld.com/news/2012/may/11/lawmakers-pass-anti-sharia-law-measure/; Peggy Mast, Setting the Record Straight on American Laws for American Courts Legislation, FAMILY SECURITY MATTERS (July 11, 2012), http://www.familysecuritymatters.org/publications/detail/setting-the-record-straight-onamerican-laws-for-american-courts-legislation. 45 Kansas Lawmakers Pass Anti-Islamic Law Measure, CBS NEWS (May 11, 2012, 9:48 PM), http://www.cbsnews.com/8301-201_162-57433128/kansas-lawmakers-pass-anti-islamic-

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Oklahoma, supporters of the Kansas measure could not identify any cases in which a Kansas judge based a ruling on Islamic law. However, the bills supporters cited a pending case in Sedgwick County Court, filed in Wichita, in which a man seeking to divorce his wife asked that the property be divided under a marriage contract in line with Sharia law.46 According to accounts of the court filings, Hussein Hamdeh, a professor at Wichita State University, sought to limit his wifes recovery in a divorce proceeding by citing Sharia law as the applicable law governing distribution of assets.47 The court papers indicated that this was Professor Hamdehs third divorce, that there was a nineteen-year age difference between the parties, that the couple had one minor child, and that Professor Hamdehs wife, who spoke little English, had been a homemaker during their marriage.48 This was a pending matter; no judicial decision had yet been rendered with respect to Professor Hamdehs claims. Nevertheless, supporters of the Kansas anti-international law legislation cited the case to support the need to restrict judges decisionmaking.49 Some in the Kansas legal community expressed doubts as to whether this case supported Representative Masts legislation. For example, family law expert Ron Nelson of Lenexa, Kansas, characterized Professor Hamdehs filing as no more than litigation posturing, designed to promote a favorable settlement by setting out an aggressive legal position at the outset of the proceedings.50 Nelson observed that this strategy was not unique to Muslim litigants, and that the filings did not in any way reflect the judges ultimate disposition of the suit, which had not even been entered at the time of the legislative debate. Attorney Nelson also cautioned against oversimplifying the case to make political points. This case has over 43 pages of docket, he said. Its obviously a complex and rancorous case.51 The guardian ad litem appointed in the case, Attorney Leah Gagne, was similarly dismissive of Representative Masts assertion that Muslim law might influence child custody decisionmaking in Kansas courts. All cases that involve extensive and heavy litigation take their toll on kids, Attorney Gagne said.52 This is no different than two Protestants fighting over a child, two Catholics fighting over a child, two atheists

law-measure/.
46 47 48 49 50 51 52

Id.; USA TODAY, Kansas Governor Signs Measure, supra note 5. Marso, supra note 10. Id. Id. Id. Id. Id.

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fighting over a child.53 Nevertheless, the mere pendency of claims that incorporated Sharia law was cause for many in the state to express concern about systematic incorporation of Sharia law into the states domestic legal regime. The bill was passed by the legislature and signed by Kansas Governor Sam Brownback on May 21, 2012.54 As the Oklahoma and Kansas examples suggest, there is scant evidence that a state court judges unprincipled reliance on Sharia law or international law must be curbed by state legislatures or the state electorate as a whole. Indeed, after conducting an exhaustive search for cases in U.S. jurisdictions over the past thirty-five years that would show the threat to U.S. jurisprudence posed by citations to international law, the APPA identified only seven cases where Sharia law or other foreign law was actually enforced by a court.55 Further, without more detail, even this hard-won statistic proves little. It is impossible to assess whether those seven cases were rightly or wrongly decided.56 However, even if every one of the seven decisions represents the improper application of foreign law to a domestic dispute, the rate of error is miniscule given the number of pending cases in U.S. courts.57 Corrective mechanisms are already in place to eliminate such errors, including appellate review and reversal and procedures for the removal or censure of errant judges.58 As both liberal and conservative commentators have noted, a campaign to limit the discretion of sitting state court judges based on these seven cases seems to be a completely disproportionate response.59 Given the lack of persuasive data supporting restrictions on judicial citation, it is not surprising that David Yerulshalmi, a leader of the antiinternational law movement and the founder and director of the APPA, now asserts that facially neutral laws of the type enacted in Kansas are

Marso, supra note 10. See USA TODAY, Kansas Governor Signs Measure, supra note 5. 55 Matthew J. Franck, A Solution in Search of a Problem, NATL REV. ONLINE (June 15, 2012, 5:10 PM), http://www.nationalreview.com/bench-memos/303028/solution-search-problemmatthew-j-franck.
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See id. R. LAFOUNTAIN ET AL., EXAMINING THE WORK OF STATE COURTS: AN ANALYSIS OF 2010 STATE COURT CASELOADS 1 (National Center for State Courts 2012), available at http://www.courtstatistics.org/OtherPages/~/media/Microsites/Files/CSP/Home%20Page/csp_2012.ashx (reporting that state court caseloads nationwide exceeded 106 million). 58 Thomas E. Baker, The U.S. Courts of Appeals: Problems and Solutions, FED. LAW., Aug. 1998, at 31, 35-36 (featured within The Ninth Circuit: To Split or Not to Split).
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See, e.g., Franck, supra note 55.

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intended to be purely symbolic.60 Every state in the U.S. already limits judges authority to favor foreign law over the public policy choices of their states citizens.61 As the proponents acknowledge, then, the proposals do not change the law but rather send a message. What is the message? In part, at least, it is surely about the proponents desire to target and marginalize Sharia, foreign, and international law because of perceived threats to American order. But whether or not the APPAs supporters intend it, the message of these proposals is also about the courts and judges themselves. As noted above, at the time he signed the Kansas legislation, Governor Brownback asserted that activist judges made the bill necessary.62 Conservative bloggers and other commentators also regularly report that activist judges are affirmatively attempting to rely on foreign law to promote their own ideological views.63 Indeed, some commentators assert that activist judges are responsible for defeating anti-Sharia measures in most states.64 Particularly because these critics attack judges decisionmaking based on judicial methodology rather than the results, these proposals inhibit the sound exercise of judicial discretion and independenceand stoke the fires of a public crisis of confidence in our judges and courts. I. The Wide Agreement About the Relevance of International and Comparative Law

To read the blogs, one might think that state court references to international and foreign law are a new and unprecedented development. In fact, international and foreign law has held a place in domestic legal analysis since the origins of our nation.65 As Harvard Law School Dean Martha Minow put it, no one disagrees that United States judges have long consulted and referred to materials from other countries as well as

60 Matthew Schmitz, Anti-Sharia Laws Are Magic, NATL REV. ONLINE (June 18, 2012, 12:23 PM), http://www.nationalreview.com/corner/303135/anti-sharia-laws-are-magic-matthewschmitz.

Paulson & Sovern, supra note 13, at 969; Nelson, supra note 36 (quoting Oklahoma Law Professor Joseph Thai on existing Oklahoma law: We do not enforce foreign law that is contrary to state policy. We never have and we never will.). 62 USA TODAY, Kansas Governor Signs Measure, supra note 5. 63 See, e.g., Phyllis Schlafly, Is Relying on Foreign Law an Impeachable Offense?, EAGLE FORUM (May 2005), http://www.eagleforum.org/psr/2005/may05/psrmay05.html.
64 See, e.g., ISLAMISTS AND THE IMPOSITION OF SHARIA LAW, ARKDART.COM, http://www.akdart.com/islam10.html (last visited Apr. 5, 2013).

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Sarah Cleveland, Our International Constitution, 31 YALE J. INTL L. 1, 6-7 (2006); see also Martha F. Davis, The Spirit of Our Times: State Constitutions and International Human Rights, 30 N.Y.U. REV. L. & SOC. CHANGE 359, 359 (2006).

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international sources.66 Indeed, the U.S. Constitutions Supremacy Clause reaffirms that those international treaties to which the United States is a party are the Supreme Law of the Land.67 Both state and federal courts must frequently interpret treaties, and they often do so by looking at foreign practices and interpretations that may inform our own domestic approaches.68 Indeed, there is wide agreement concerning the continuing relevance of international and comparative law in U.S. jurisprudence. For example, Justice Scalia, known as a critic of the use of international law in constitutional cases, joined the majority and relied heavily on foreign interpretations of the Hague Convention on the Civil Aspects of Child Abduction to determine the treatys domestic meaning in Abbott v. Abbott.69 On the current Supreme Court, Justice Scalia is joined by Justices Kennedy, Ginsberg, Sotomayor, and Breyer, all of whom have employed international or foreign law as an analytical tool or an aid to clarifying the issues. Justice Kennedy, for instance, wrote a series of opinions on death penalty litigation that make clear that international and comparative law are relevant and are cited when they add an additional dimension to the analysisnot for the purpose of providing an alternative rule of decision.70 State courts and state judges have been leaders in exploring the relevance of international and comparative approaches, demonstrating a particular awareness of their unique position in the U.S. judicial system. Wisconsin Chief Justice Shirley Abrahamsons 1997 article (with Michael Fischer) in the Hofstra Law Review stresses that state courts are common law courts and notes that common law reasoning relies on analogies, often from other jurisdictions.71 Why, the authors ask, should state courts examination of foreign law be limited to other states of the federal union when decisions from other jurisdictions, particularly other common law nations, might also be analytically helpful?72 State court judges have also had occasion to examine international or foreign law in construing state constitutions. In Montana, where the state constitution derives its human dignity language from the Universal

66 Martha Minow, The Controversial Status of International and Comparative Law in the United States, 52 HARV. INTL L.J. ONLINE 1, 2 (2010), http://www.harvardilj.org/wpcontent/uploads/2010/09/HILJ-Online_52_Minow1.pdf. 67 U.S. CONST. art. VI, cl. 2. 68 Davis, supra note 69, at 365-66. 69 See, e.g., Abbott v. Abbott, 130 S. Ct. 1983, 1993-94 (2010). 70 See, e.g., Graham v. Florida, 130 S. Ct. 2011, 2033-34 (2010). 71 Shirley Abrahamson & Michael Fischer, All the Worlds a Courtroom: Judging in the New Millennium, 26 HOFSTRA L. REV. 273, 288-89 (1997). 72

Id. at 275-76.

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Declaration of Human Rights, judges have taken those origins into account when construing the clause.73 In Connecticut, the state supreme court examined (and distinguished) foreign and international law on forcedfeeding in construing the states constitutional due process clause and the prohibition on cruel and unusual punishment.74 State courts also regularly confront situations where ignoring international or foreign law would frustrate the parties intentions. For example, in Donenfeld v. Brilliant Technologies Corporation, a New York appellate court construed a loan agreement in which the parties had specifically designated German law as the law of the contract.75 The trial court had imposed New York law on the parties, but on appeal, the New York Court of Appeals concluded that [t]he loan agreement clearly chooses German law and [a]s a general matter, the parties manifested intentions to have an agreement governed by the law of a particular jurisdiction are honored.76 Since both German and New York law bar usury, the application of German law did not violate the public policy of New York, and the parties intentions were not frustrated.77 Similarly, state courts often consider issues of global significance that require an awareness and acknowledgment of international law. For example, in Commonwealth v. Gautreaux, the Massachusetts Supreme Judicial Court (SJC) considered a litigants effort to assert his consular rights under the Vienna Convention on Consular Affairs.78 The International Court of Justice had already opined on the general issue.79 Rather than ignore the international courts decision, the SJC offered its respectful consideration of the international courts ruling while fully supporting its own conclusion under domestic law.80 Despite the protests of some conservative commentators, there is wide agreement within the legal community that judges cannot and should not ignore these aspects of their cases.81 As noted above, if contracting parties

73 See, e.g., Vicki Jackson, Constitutional Dialogue and Human Dignity: States and Transnational Constitutional Discourse, 65 MONT. L. REV. 15, 27-29 (2004). 74 Lantz v. Coleman, No. HHDCV084034912, 2010 WL 1494985, at *16-21 (Conn. Super. Ct. Mar. 9, 2010), affd sub nom., 38 A.3d 84, 109-10 (2012).

948 N.Y.S.2d 18, 20 (N.Y. App. Div. 2012). Id. (quoting Freedman v. Chem. Const. Corp., 372 N.E.2d 12, 15 n* (N.Y. 1977)). 77 Id. 78 941 N.E.2d 616, 626 (Mass. 2011). 79 See, e.g., Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12, 45-46 (Mar. 31), available at http://www.icj-cij.org/docket/files/128/8188.pdf. 80 Gautreaux, 941 N.E.2d at 625. 81 See Am.Bar.Assn., RESOLUTION 113A ADOPTED BY THE HOUSE OF DELEGATES (2011), available at
76

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have specified that foreign law be applied when construing a contract, those intentions would be frustrated if a court refused to engage with the applicable foreign law; the litigants would surely next time seek an alternative forum for resolving their disputes.82 In some instances, such as the cases construing the Hague Convention on the Civil Aspects of Child Abduction, a state courts decision made without reference to other nations practices might simply be unworkable, diverging in small and large ways from norms among the treaty signatories, perhaps even creating diplomatic difficulties for the nation.83 In still other instancesfor example where a court must determine the validity of a foreign divorce in order to make a child custody determinationmaking a decision without analyzing the foreign judgment would be impossible.84 A court would simply have to examine foreign law in order to ascertain the effectiveness of the divorce. There is no other practical way to proceed, consistent with scarce judicial resources and the best interests of the child. II. The Impacts on State Courts of Public Pressure to Refrain from Considering International and Foreign Law The debate concerning the place of foreign and international law in U.S. judicial decisionmaking is not simply an arms-length exchange between intellectual elites. The stakes for judges may be high. For example,
http://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/resolutions /2011_hod_annual_meeting_113a.doc (resolving [t]hat the American Bar Association opposes federal or state laws that impose blanket prohibitions on consideration or use by courts or arbitral tribunals of foreign or international law).
82 See CYNTHIA BROUGHER, CONG. RESEARCH SERV., APPLICATION OF RELIGIOUS LAW IN U.S. COURTS: SELECTED LEGAL ISSUES 1-3 (May 18, 2011), available at http://www.fas.org/sgp/crs/misc/R41824.pdf; Walter Jenny, Jr., Op-Ed., State Question is Xenophobic, EDMOND SUN, Sept. 15, 2010, http://www.edmondsun.com/opinion/x422129888/State-question-is-xenophobic (arguing that the proposed ban on foreign law would hurt business interests in Oklahoma).

Abbott v. Abbott, 130 S. Ct. 1983, 1993 (2010) (applying the Hague Convention on Child Abduction). Along these lines, Justice Kennedys opinion for the Court notes that: The Convention defines rights of custody, and it is that definition that a court must consult. This uniform, text-based approach ensures international consistency in interpreting the Convention. It forecloses courts from relying on definitions of custody confined by local law usage, definitions that may undermine recognition of custodial arrangements in other countries or in different legal traditions, including the civil-law tradition. Id. at 1991. Omar Sacirbey, Shariah or Not, Muslim Divorces Can Get Tricky, WASH. POST, Oct. 1, 2012, http://articles.washingtonpost.com/2012-10-01/national/35500824_1_shariah-islamic-law-validmarriage.
84

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in 2005, Supreme Court Justice Ginsburg reported that a death threat was posted on a website targeting both Justices Ginsburg and OConnor because of their support for the relevance of international law to domestic decisionmaking.85 Though less personally threatening, recent Supreme Court nominees have had to address questions from members of Congress concerning their support for consideration of international and foreign law, suggesting that their nomination might be jeopardized if they seem too open to the possibility.86 For example, during consideration of then-Judge Sotomayors nomination, Senator Tom Coburn of Oklahoma prepared a fact sheet on the judges views, accusing her of rescind[ing] her promise not to use foreign law made during prior confirmation hearings.87 This practice has filtered down to all levels of the judiciary, as judicial candidates at the state level are also now often asked whether they will consider foreign and international law in their consideration of cases. Some candidates volunteer the information, assuming that it will be pertinent. For example, a candidate for judicial office in Oakland, Michigan, volunteered in a questionnaire from the Oakland County Bar Association that he would not consider foreign laws in interpreting domestic statutes.88 Judicial questionnaires from politically-affiliated groups ask the question directly.89

Minow, supra note 70, at 7-8. In recent years, nominees Roberts, Alito, Sotomayor, and Kagan have all been asked questions along these lines by the Senate Judiciary Committee. See, e.g., Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 199-201 (2005) (statement of Judge John G. Roberts, Jr.); Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 47071 (2006) (statement of Judge Samuel A. Alito, Jr.); Adam Liptak, Analysis: Sotomayor on Foreign Law, NY TIMES (July 17, 2009, 10:56 AM), http://thecaucus.blogs.nytimes.com/2009/07/17/analysis-sotomayor-on-foreignlaw/?pagewanted=print (describing questioning during Sotomayor confirmation hearing); Nathan Koppel, To Cite or Not to Cite? Senators, Kagan Spar Over Foreign Law, WALL ST. J. L. BLOG (June 30, 2010, 6:23 PM), http://www.blogs.wsj.com/law/2010/06/30/to-cite-or-not-to-citesenators-kagan-spar-over-foreign-law/ (describing questioning during Kagan confirmation hearing).
86

85

Senator Tom Coburn, Judge Sotomayor Rescinds Her Promise Not to Use Foreign Law 1 (2010), available at http://www.coburn.senate.gov/public/index.cfm?a=Files.Serve&File_id=518fddc9-69ef-44878eef-a176a2df900d (last visited Apr. 5, 2013).
88 See, e.g., Oakland Cnty. Bar Assn, Judicial Candidate Questionnaire: P. Daniel Christ, OCBA 7 (2012), http://www.ocba.org/resource/attach/2521/JCQWebChrist.pdf.

87

See Conservative Coal. of Montgomery Cnty., Questions for Candidates for Judicial Offices: Claudia Laird, CCMC 1 (2010), http://www.conservativecoalitionmc.org/candidates/2010-3JudgeCourt-2-ClaudiaLaird.pdf.

89

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Most state court judges are elected or, in some instances, subject to retention votes following their appointment to the bench, adding an additional wrinkle to this landscape.90 The electoral context in which these judges operate inevitably has an impact on their conduct. Off the bench, they must pay their dues on the social circuit and must offer campaign pledges designed to appeal to voters.91 On the bench, pressures may also arise from their precarious status between elections. Judges who are subject to election or retention and who want to stay on the bench may seek to avoid unnecessary controversy when they render their decisions.92 They may consider the impact that their decisions will have on their continued ability to serve.93 While there are no studies that directly examine the impact this atmosphere has on state court judges consideration of international or foreign law, studies from analogous contexts suggest that judges are inevitably affected. Consciously or unconsciously, they are likely to try to avoid stepping into the controversy.94 Most of the existing studies test the impact of judicial elections on judicial behavior.95 For example, Michael LeRoy examined how judicial elections affected courts review of arbitrator rulings in employment disputes.96 Based on a review of 223 state court rulings, LeRoy concluded that party-affiliated trial judges were more likely to uphold awards to employers, suggesting that campaign donations figured in the judicial

See, e.g., Michael Solimine, Response: State Judicial Elections and the Limits of Calibrating Access to the Federal Courts, 96 VA. L. REV. IN BRIEF 41, 41 (2010) (Almost all state court judges are subject to some sort of popular election to attain or retain office.).
91 See, e.g., Robert Barnes, Ruth Bader Ginsburg Says She Would Forbid State Judicial Elections, WASH. POST (Mar. 12, 2010), http://www.washingtonpost.com/wpdyn/content/article/2010/03/11/AR2010031105136.html (noting Supreme Court Justice Ruth Bader Ginsburgs opposition to the election of judges). 92 Controversial decisions may have an impact on the election. See, e.g., A.G. Sulzberger, In Iowa, Voters Oust Judges over Marriage Issue, N.Y. TIMES (Nov. 3, 2010), http://www.nytimes.com/2010/11/03/us/politics/03judges.html?pagewanted=all&_r=1&. 93 See, e.g., CHRIS BONNEAU, THE FEDERALIST SOCY, A SURVEY OF EMPIRICAL EVIDENCE CONCERNING JUDICIAL ELECTIONS 7-8 (Mar. 14, 2012), available at http://www.fedsoc.org/publications/detail/a-survey-of-empirical-evidence-concerning-judicial-elections (noting that the evidence that judges consider their likelihood of reelection when making judicial decisions is pretty persuasive, while questioning whether that is problematic).

90

See id. (identifying that numerous studies show elections influence judicial behavior). For general background on the origins and development of state judicial elections, see F. Andrew Hanssen, Learning About Judicial Independence: Institutional Change in the State Courts, 33 J. LEGAL STUD. 431, 433-34 (2004). 96 Michael H. LeRoy, Do Partisan Elections of Judges Produce Unequal Results When Courts Review Employment Arbitrations?, 95 IOWA L. REV. 1569, 1569 (2010).
95

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decisionmaking.97 Similarly, Daniel Pinello found differences in decisional patterns of six supreme courts in the eastern United States based on whether the judges were elected or appointed. Judges who did not have to stand for re-election or reappointment were more likely to sustain criminal defendants rights.98 As Chris Bonneau recently concluded after surveying the empirical data on judicial elections, the evidence that judges take elections into account in their decisionmaking is persuasive.99 Studies also suggest that the mode of judicial election is not the critical factor. For example, a study of retention election systems in ten states found that although a majority of trial judges surveyed preferred retention elections to standard multicandidate elections, they also believed that retention elections influence judicial behavior.100 In fact, a quarter of the respondents asserted that retention elections made judges more sensitive to public opinion than they would otherwise be.101 These subjective responses are borne out by the work of Brandice Canes-Wrone and Tom Clark, who surveyed the ways in which public opinion on abortion influenced judicial decisionmaking in states without partisan elections.102 According to the study, even taking into account other variables, the more pro-life an election district leaned, the more likely a judge was to vote in support of pro-life positions.103 A similar study looked at judicial independence in the context of retention elections.104 Using the abortion issue as a point of comparison, the researchers concluded that in the context of modern judicial campaigns, retention elections create pressure for judges to cater to public opinion on hot-button issues that are salient to voters.105 The study indicated that the pressure is just as great whether the judge is involved in a retention election or a contested election.106 Indeed, recent retention elections in Iowa demonstrate the ways in which activist members of the
97

Id. at 1569-70. Interestingly, LeRoy found no similar effect for appellate judges. Id. at

1604.
98 DANIEL R. PINELLO, THE IMPACT OF JUDICIAL-SELECTION METHOD ON STATE-SUPREMECOURT POLICY: INNOVATION, REACTION, ATROPHY 130-31 (1995).

BONNEAU, supra note 93, at 7-8. Larry T. Aspin & William K. Hall, Retention Elections and Judicial Behavior, 77 JUDICATURE 306, 306-07, 312-13 (1994).
100

99

Id. at 312-13. Brandice Canes-Wrone & Tom S. Clark, Judicial Independence and Nonpartisan Elections, 2009 WIS. L. REV. 21, 21 (2009). 103 Id. at 47-48, 64. 104 Brandice Canes-Wrone, Tom S. Clark, & Jee-Kwang Park, Judicial Independence and Retention Elections, 28 J.L. ECON. & ORG. 211, 213-14 (2012).
102 105 106

101

Id. at 211. See id. at 229.

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electorate can use the elections both to oust judges with whom they disagree and to send a message to the remaining judges about an issue.107 It is not a large leap from this cumulative empirical data to the conclusion that judges in states where the American Law for American Courts movement has taken hold will feel pressure to avoid open reliance on international or foreign materials, even when the materials are relevant and helpful to the decision. Indeed, at least one Oklahoma state legislator who opposed that states measure as unnecessary saw his alleged support for foreign law become a central issue in his re-election campaign.108 If judges feel similar pressure and begin to act with blinders on, a move which not even Justice Scalia supports,109 judicial independence is undercut and justice will inevitably suffer. As one recent historical analysis concluded, the quality of state courts is closely linked to judicial independence.110 III. Possible Responses The politicization of the judicial decision-making process, and its concomitant effect on judges, may exacerbate a crisis of confidence in the courts. Litigants may be chilled from raising legitimate arguments in court that rely on international law, or may be deterred entirely from submitting their disputes for resolution by domestic courts that are statutorily barred from considering the complete legal context of the case.111 Businesses have a special stake in this, since they often incorporate foreign law into international contracts and may be among the first to lose confidence in judicial competence to properly resolve their disputes.112 Perhaps recognizing the risks involved, some professional organizations and individual judges have been outspoken about the importance of preserving independence and, at the same time, have
107 108

See Sulzberger, supra note 92. See Nelson, supra note 36 (noting that Oklahoma State Representative Cory Williams, who voted against the foreign law ban, was nearly defeated for re-election).
109 See Tricia Perry, Thoughts on International Law in U.S. Courts: Our Constitution or Blackstones?, HUFFINGTON POST (Feb. 15, 2010, 3:46 PM), http://www.huffingtonpost.com/tricia-perry/thoughts-on-international_b_457314.html (noting that even Justice Scalia, who in the past has refused to use international law to support Supreme Court opinions, agrees that international law may be valid in the interpretation of a treaty where many different nations are parties). 110 Daniel Berkowitz & Karen Clay, The Effect of Judicial Independence on Courts: Evidence from the American States, 35 J. LEGAL STUD. 399, 399-401 (2006).

See, e.g., Nelson, supra note 36 (citing particular examples of international law that were raised in Oklahoma courts). 112 Id. (noting that dealing with foreign laws is a regular part of business practice in Oklahoma).

111

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embraced the role of international and comparative law in domestic adjudication.113 For example, the National Association of Women Judges hosted a plenary panel at their annual conference in 2012 on domestic uses of international and foreign law.114 The American Bar Association, representing all facets of the legal profession, has similarly condemned measures that would curb consideration of international, foreign, or Sharia law.115 Some individual judges, ranging from Supreme Court Justice Stephen Breyer to Judge Cathy Serette of the Maryland Court of Appeals, have also publicly indicated their willingness to examine ideas from any quarter as they wrestle with tough issues.116 Unfortunately, the financial crisis facing courts adds another hurdle: many judges simply cant afford the time needed to research pertinent international and comparative law norms, which may require access to special databases and some unique training.117 In Israel and South Africa, judges have addressed that issue by hiring foreign law clerks who can provide international perspective and expertise inside chambers.118 But with barely sufficient funding to support existing law clerks, much less additional personnel with foreign expertise, that approach seems an

113 See, e.g., SANAZ ALEMPOUR ET AL., COMMITTEE ON JUDICIAL INDEPENDENCE COMPENDIUM UPDATE 2007, at 41 (2007), available at http://www.floridabar.org/DIVEXE/GCBillReport.nsf/Attachments/80329743B13E746D852573 02004BA34A/$FILE/Compendium%20Special%20Topic%20of%20Judicial%20Independence% 20-%20After%20%E2%80%A6.pdf?OpenElement (noting Justice OConnors view that the judiciary must remain independent); OConnor: U.S. Must Rely on Foreign Law, WND (Oct. 31, 2003, 1:00 AM), http://www.wnd.com/2003/10/21551/ (noting Justice OConnors opinion that decisions of international courts will be increasingly important in domestic cases). 114 See NAWJ 34th Annual Conference: Meet Me in Miami, Nov. 7-11, 2012, Miami, Florida, NATL ASSOC. OF WOMENS JUDGES, http://www.nawj.org/annual_2012.asp#schedule (last visited Apr. 6., 2013). 115 Raftery, Bans on Court Use of Sharia, supra note 18. 116 See, e.g., Cathy H. Serrette, Invoking Human Rights Law in Litigation: A Maryland Judges Perspective, 45 CLEARINGHOUSE REV. 238, 238-39 (2011); Stephen Breyer, U. S. Supreme Court Justice, The Supreme Court and the New International Law, Address at the American Society of International Law 97th Annual Meeting (Apr. 4, 2003), available at http://www.humanrightsfirst.org/wpcontent/uploads/pdf/Supreme_Court_New_Interl_Law_Just_Breyer%20.pdf. 117 See, e.g., Nicole Jones, Court Budget Crisis Creates Long Lines at Legal Self-Help Centers, KALW (Nov. 1, 2012, 3:13 PM), http://kalw.org/post/court-budget-crisis-creates-long-lineslegal-self-help-centers (noting the effect judicial budget cuts have on the legal system without taking into account the added strain of interpreting international and comparative law).

See OPPORTUNITIES WITH INTERNATIONAL TRIBUNALS AND FOREIGN COURTS, YALE LAW SCH. CAREER DEV. OFFICE. 34-35 (2010-2011), available at http://www.law.yale.edu/documents/pdf/CDO_Public/CDO-10-IntlTribunals-PUBVer.pdf.

118

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unlikely fix in the U.S.119 As an alternative, some judges have issued an open invitation to lawyers to affirmatively point out and brief any international or foreign law issues pertinent to matters before them, shifting the burden away from courts and judges at a time when they are being pinched.120 Law schools have a role to play in closing this circle. First, law schools are well-positioned to provide public education to counter the ahistorical and flawed message of the American Law for American Courts movement.121 Many members of the faculty at the University of Oklahoma School of Law bravely took up this issue when it was debated in Oklahoma.122 However, theirs was largely a rear-guard action, powerful and articulate but too late to make a difference in the votes outcome. With the luxury of more time, law schools and law professors in other states can approach the matter more deliberately. For example, many first year courses now have casebooks available that include analyses of relevant international law.123 That material should be covered in introductory law school classes to ensure that all students understand the ways in which a ban on international or foreign citation runs directly counter to our proud common-law heritage of judicial independence and broad consultation and reasoning. Law schools are also well-positioned to sponsor public programs in communities, to detail faculty to provide comment on television and radio, and to place op-eds designed to shore up public support for judicial independence and awareness of the appropriate role of foreign and international law in domestic courts.124 Second, law schools are favorably positioned to provide the back-up international and human rights research assistance that some judges will be otherwise unable to get through their own clerks or even lawyers briefings, particularly at the trial level. Human rights clinics have expanded dramatically at law schools around the country.125 These clinics

119 See Ed Finkel, Crunching Clerks, A.B.A. J. (Feb. 1, 2010, 3:50 AM), http://www.abajournal.com/magazine/article/crunching_clerks (describing cuts in state and federal clerkships).

See Breyer, supra note 116. See Patrick M. McFadden, Provincialism in United States Courts, 81 CORNELL L. REV. 4, 57, 62-65 (1995). 122 See, e.g., Nelson, supra note 36 (quoting University of Oklahoma Professor Joseph Thai). 123 See, e.g., PAUL BREST ET AL., PROCESSES OF CONSTITUTIONAL DECISION-MAKING: CASES AND MATERIALS (6th ed. 2010).
121 124 See Frank J. Macchiarola & Joseph Scanlon, 19 FORDHAM URB. L.J. 695, 703-05 (1991) (stating that lawyers and law students must participate in public service activities in order to improve society). 125 Deena Hurwitz, Lawyering for Justice and the Inevitability of International Human Rights Clinics, 28 YALE J. INTL L. 505, 527 (2003).

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and student organizations should be on call to state courts to provide necessary research and briefing to ensure that relevant international and foreign materials are before the courts for consideration. Engaging in such research will not only enhance student skills but will broaden the resources available to judges, with positive results for the quality of judicial opinions.

CONCLUSION
Both state and federal courts are facing a complex crisis of legitimacy that is powered, in part, by popular misunderstandings concerning the role of domestic courts in navigating the increasingly global landscape of law. On the one hand, as the population of the U.S. engages in an everwidening range of international activities, domestic courts are now more than ever called on to resolve issues with global dimensions, from international child abduction126 to enforcement of multinational contracts127 to issues involving U.S. compliance with international obligations.128 On the other hand, equating international references with judicial overreaching, conservative activists continue to try to severely restrict judicial consideration of foreign and international materials, and have gained some popular support for their efforts by linking international references to anti-Muslim sentiment in the wake of the September 11 attacks. The storyline suggesting that Islamic terrorists have captured the elite judiciary feeds directly into the longstanding conservative suspicion of judges. This debate dates back to the founding era and has taken on additional momentum in recent years.129 Symbolic or not, these anti-international law measures pose very real threats to judicial independence and the integrity of the legal system. Particularly at the state level, individual judges who hold elective office must weigh their opposition to such measures against their re-election aspirations, and may choose to avoid taking a controversial stand on the issue. The resulting loss of judicial independence poses serious challenges for state courts. Law schools should take concrete steps to ensure that implicit threats of electoral retribution combined with budget cuts do not

126 See, e.g., Abbot v. Abbot, 130 S. Ct. 1983, 1990-91 (2010) (giving credence to the Chilean Family Courts order that the child should remain in Chile unless the father gave permission for the minor son to return to the U.S.). 127 See, e.g., AT&T Corp. v. Microsoft Corp., 414 F.3d 1366, 1371 (Fed. Cir. 2005), revd, 550 U.S. 437 (2007).

See, e.g., Medelln v. Texas, 552 U.S. 491, 504-06 (2008) (stating that unless a treaty has been ratified by Congress, an international law obligation is not legally binding in the United States).
129

128

See THE FEDERALIST NO. 78 (Alexander Hamilton).

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result in a diminished Judiciary.