Foreign law in American courts — yes, no, or maybe?

There’s a movement afoot — mostly from my side of the political aisle — opposing the use of foreign law in American courts. Oklahoma, for instance, enacted an unusually broad ban on such use of foreign law. This ban was later struck down by a federal court on the grounds that part of the ban singled out Islamic law for special restriction. That, though, was a narrow objection, which the legislature could easily deal with by just banning foreign law without mentioning Islamic law. Indeed, after the federal court decision, Oklahoma enacted just such a narrower restraint on the use of foreign law by Oklahoma courts, as have other states. Still more state legislatures have considered the issue, and it remains under consideration in some.

I was invited to give a lecture at the University of Oklahoma last year on this subject, and that turned into a law review article, which was just published in the Oklahoma Law Review. I thought I’d serialize this article on the blog, since in my experience many of our readers have been interested in the subject.

Here’s the general summary: I’m skeptical of some of the internationalist impulses that often come from the left, in particular when it comes to using foreign law to influence how the U.S. Constitution is understood. But I also think the criticism of the use of foreign law in the American legal system misses some important matters — matters involved in much less glamorous but more frequent cases, whether having to do with contracts, torts, judgments, family law, or other things. And the proposed solutions to a real but relatively minor problem may cause much more serious problems instead.

And the problems that these proposals would cause should concern most Americans, without regard to ideology. They would be practical problems for American businesses and individuals, affecting the everyday functioning of our legal and economic systems.

We shouldn’t embrace every attempt to introduce foreign law into the American legal system, but neither should we rush to reject foreign law generally. There are times when American law does, and rightly should, call for reference to foreign law, and there are times when it should not. (In an article in the following issue of the law review, which I also plan to serialize in a couple of weeks, I say something similar about the use of religious law in the American legal system.)

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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