Monday, September 10, 2012

New Scholarship on Proposed Statutes that Try to Prohibit State Court Judges from Citing Foreign or International Law

Dr. David L. Nersessian has written an article on “How State Legislative Bans on Foreign and International Law Obstruct the Practice and Regulation of American Lawyers.” It will be published in the Arizona State Law Journal, but you can read the paper now by clicking here.  It's a good piece of scholarship and will likely be an often-referenced source of information on the initiatives that states have promulgated to try to prohibit the citation of foreign or international law in state judicial decisions.  Here's the abstract of his article:

Thirty-three state legislatures have introduced (and five have enacted) “blocking” initiatives that prohibit foreign or international law in state judicial decisions.  Some states, such as Oklahoma, extend this ban to religious tenets, notably Sharia law.  Scholarly discourse to date has focused principally upon how such legislation discriminates against minority religious groups.  The academic community has yet to consider the serious collateral (and apparently unintended) impact of such laws on the American legal profession itself, which is the subject of this article.

Blocking laws make it all but impossible for practicing lawyers to fulfill their ethical obligations in legal matters abroad, which forces them either to decline legal work overseas or to risk violating foreign laws.  Blocking initiatives also create uncertainty about ethical duties at home whenever domestic legal work includes a transnational dimension.  Such laws resurrect the “double deontology” problem (where inconsistent ethical duties apply simultaneously) that the revised ABA Model Rules intended to solve.  They also eviscerate the Rules’ safe harbor protection on difficult choice of law questions.

Blocking measures also interfere with wider regulatory structures.  They infringe unconstitutionally on the power of state judiciaries to prescribe substantive ethical rules and to regulate lawyer conduct abroad.  They also disrupt reciprocal discipline between American states and relationships between state judiciaries and federal courts.  But this confluence of negative outcomes is completely unnecessary because judges have sufficient tools already to guard against potential abuses in the application of foreign or international law.

Apart from invalidating existing laws as unconstitutional, there should be a concerted effort by American lawyers, state judiciaries, and bar organizations to oppose such initiatives becoming law in the first place.  There certainly is room for spirited disagreement over the proper role of foreign and international law in American courts.  But this requires a genuine debate, not legislative ultimatums that foreclose all further consideration.  Blocking laws essentially require American lawyers (not to mention judges – members of co-equal branches of state government) to pretend that foreign and international law do not exist.  Such proposals are neither workable nor wise, and they amount to little more than misguided hope that certain global legal realities – if sufficiently ignored – might simply go away.


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