Tuesday, September 11, 2012
David L. Nersessian (BU) has posted How State Legislative Bans on Foreign and International Law Obstruct the Practice and Regulation of American Lawyers, forthcoming in Vol. 44(4) of the Arizona State Law Journal (2012), on SSRN. Here is the abstract:
Thirty-three state legislatures have introduced (and five have enacted) “blocking” initiatives that prohibit foreign or international law in state judicial decisions. These laws make it all but impossible for practicing lawyers to fulfill their ethical obligations in legal matters abroad. Blocking initiatives create uncertainty about ethical duties at home whenever domestic legal work includes a transnational dimension. The also resurrect the “double deontology” problem (where inconsistent ethical duties apply simultaneously) that the revised ABA Model Rules intended to solve and eviscerate the Rules’ safe harbor protection on difficult choice of law questions. Blocking measures also interfere with wider regulatory structures, infringing unconstitutionally on the power of state judiciaries to prescribe substantive ethical rules and to regulate lawyer conduct overseas. They also disrupt reciprocal discipline between American states and relationships between state judiciaries and federal courts. This confluence of negative outcomes is completely unnecessary because the judiciary has sufficient tools already to guard against potential abuses in the application of foreign or international law.