[This is one of a set of posts serializing my law review article on this subject; please see the article for footnotes, and for more details.]

As the preceding posts suggest, categorical bans on the use of foreign law by state courts — such as the Oklahoma “Save Our State” Amendment — are misguided. They do next to nothing to prevent federal courts from using foreign law in interpreting the U.S. Constitution. But they do undermine longstanding and sensible rules that call for the application of foreign law in a wide range of mundane family law, contract law, tort law, and judgments law cases that involve transnational transactions or people who move to the United States from foreign countries.

Of course, critics might ask: “What if the foreign law is horrible? What if it calls for cutting off people’s hands?” Fortunately, not a single court decision applying foreign law enforces any such foreign regime. Existing choice-of-law rules contain many tools that ensure American courts do not apply a foreign law that is sufficiently against American public policy.

And in any event, even those tools need to be invoked in only a tiny fraction of all cases. Most of the foreign commercial, family, and tort law applied in American courts is compatible with American public policy. In such cases, we do want American courts to “look to the legal precepts of other nations” (to quote what the Oklahoma Amendment purported to forbid).

After the first wave of proposed foreign law bans — exemplified by the Oklahoma amendment — legislatures turned to considerably narrower proposals, mostly based on the American Laws for American Courts (ALAC) framework. The ALAC proposal wouldn’t bar the use of all foreign law, but focuses instead on barring the use of

[any] 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 U.S. and [State] Constitutions, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.

Any state that implements the ALAC proposal commits its court system to not aiding or participating in litigation under such laws or in such legal systems:

  1. ”Any court, arbitration, tribunal, or administrative agency ruling or decision [based on such a law] shall … be void and unenforceable ….”
  2. “A … contractual provision … which provides for the choice of [such] a law … shall … be void and unenforceable ….”
  3. “A … contractual provision … which … grant[s] the courts or arbitration panels in personam jurisdiction over the parties shall … be void and unenforceable if the jurisdiction chosen” would implement such a law.
  4. “If a resident of this state, subject to personal jurisdiction in this state, seeks to maintain litigation, arbitration, agency or similarly binding proceedings in this state and if the courts of this state find that granting a claim of forum non conveniens or a related claim violates or would likely violate the fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions of the non-claimant in the foreign forum with respect to the matter in dispute, then it is the public policy of this state that the claim shall be denied.”

The ALAC proposal is also limited in that it excludes claims brought by “a corporation, partnership … or other legal entity that contracts to subject itself to foreign law in a jurisdiction other than this state or the United States.” The proposal has been enacted in Kansas and Oklahoma, and has been proposed in many other states.

In some respects, this proposal is unobjectionable and even valuable. For instance, the proposal bars the enforcement of foreign judgments that are based on what in the United States would be constitutionally protected speech. This fits well with the 2010 federal SPEECH Act, which bars the enforcement in American courts of foreign libel judgments when the foreign law rests on speech that would be protected under the First Amendment. The ALAC proposal would provide similar protection for foreign judgments based on invasion of privacy, insult, and other causes of action involving speech that would be protected by the First Amendment in American courts.

But there are two substantial problems with the proposal.

A. Trial by Jury in Civil Cases

First, the trial by jury in many civil cases has often been labeled as a “fundamental right” under state constitutions. Though it has sometimes not been viewed as “fundamental” under the federal Constitution, which is why the Seventh Amendment has not been incorporated against the states, other federal cases do label it as “fundamental.” But the ALAC proposal applies to legal systems “that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions.” Courts may reasonably read this provision as covering any fundamental right granted under state constitutions — which would cover the right to civil jury trial — as well as any fundamental right granted under the federal constitution. [Footnote: Courts might, I suppose, read it as covering all those rights that are secured by both constitutions, but that seems a less likely reading.]

Read literally, then, pretty much all foreign judgments entered against individuals would be unenforceable under the ALAC proposal simply because those judgments were entered without a civil jury trial. (Civil jury trials are virtually never available outside the United States.) After all, such a judgment does “not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions [i.e., the civil jury trial]” — and therefore “shall … be void and unenforceable.”

Such refusal to enforce foreign civil judgments is bad for international commerce. It also seems unnecessary — while the civil jury trial has a long American history and plausible arguments in its favor, I don’t think the absence of a civil jury is especially likely to make a trial unfair. Indeed, American law generally doesn’t call for civil juries in injunction cases, restitution cases, family law cases (except in Texas), admiralty cases, and more.

To be sure, ALAC’s effect, for good or ill, is limited by the exclusion of cases lost by business organizations that contracted for the application of foreign law in a foreign jurisdiction. Still, the ALAC proposal would render unenforceable foreign judgments against American individuals. And it would render unenforceable foreign judgments against American companies when the judgments rest on foreign tort claims (claims as to which there will generally be no contract providing for decision by the foreign jurisdiction), such as basic negligence claims or intentional physical injury claims. I’m not sure whether this is an intended effect of the proposal. But in any event, it seems to me to be a problem.

B. Foreign Marriages and Divorces from Countries in Which Family Law Discriminates Based on Sex or Religion

The second problem with the ALAC model arises with regard to people who married or divorced overseas and who then move to the United States. Say, for instance, that Wanda purportedly married Xavier in Elbonia, then purportedly divorced him in Elbonia. Then she purportedly married Harry in Elbonia, and 10 years later came to America. The American legal system now has to figure out whether Wanda is indeed properly married to Harry. Such questions come up all the time in immigration law, divorce law, wills and trusts law, tax law, evidence law, and many other contexts. To figure out the answer, it may be necessary to decide whether Wanda’s earlier Elbonian divorce was valid — which can only be determined using Elbonian law — or possibly just to give legal effect to her earlier Elbonian divorce.

But what if the Elbonian legal system doesn’t take the same view of various rights, including equality rights, that the United States now takes? What if, for instance, Elbonian law provides husbands more rights than wives in initiating divorces?

Or what if Elbonia — like Israel, Lebanon, India, and other places — provides that family law matters are to be resolved under the religious laws of the religious group to which the parties belong, which necessarily involves a form of religious discrimination that would violate First Amendment principles if done in the United States? Or what if Elbonian rules of evidence give more weight to men’s testimony or to the testimony of people who belong to certain religions, and those rules had been applied in the divorce?

This might be bad, but it’s the reality under which Elbonian law operates. Wanda has lived her life in Elbonia based on that reality. She may have remarried based on the effect of the divorce, however unfairly her divorce proceedings may have been conducted. She may have gotten certain property in the divorce, perhaps less than she should have gotten, but something that she now views as hers. That was life on the ground in Elbonia for her.

Now Wanda and Harry come to America, and the question of the validity of their marriage comes up. Maybe Harry brings it up in trying to get his marriage to Wanda annulled (on the theory that the Wanda-Xavier divorce was invalid). Maybe the government brings it up, for instance in arguing that Harry isn’t entitled to claim a spousal privilege to refuse to testify against Wanda, or that Wanda isn’t entitled to certain state tax benefits offered to married people. Even if we disapprove of the Elbonian legal system, American courts shouldn’t just categorically ignore the Elbonian divorce in such situations.

Yet that’s what the text of the ALAC proposal would do. Our hypothetical divorce decree was entered under a legal system that denied “the same fundamental liberties, rights, and privileges granted under the U.S…. Constitution[],” such as equal rights regardless of sex, or the First Amendment right not to be treated differently based on religion. Therefore the divorce decree would be “void,” and thus couldn’t be considered by American courts. Wanda would thus be treated as still married to Xavier, and not to Harry.

That seems both inefficient and unfair. To be sure, in some circumstances, it might be proper for courts to ignore the effect of foreign divorces that are based on procedures that American law views as improper. For instance, American courts might reject application of foreign law that they see as unfair when it affects the rights of people who were U.S. residents at the time of the divorce. Likewise, American courts may want to apply American norms to child custody rights when the children are living in the United States. But outside these special circumstances, courts shouldn’t categorically ignore the effect of foreign divorces that involve departures from American equality norms.

Perhaps this effect of ALAC is inadvertent, and maybe courts can avoid it using some sort of creative legal footwork. Maybe, for instance, courts could start more liberally using “putative spouse” doctrines under which (in some states) people can be viewed as married in some situations even if their marriage was technically invalid in some respect. But until that’s made clear, the ALAC proposal seems to pose potentially serious problems when it comes to determining the marital status of immigrants.

* * *

I share some of the skepticism about the Supreme Court’s reliance on foreign constitutional norms when deciding American constitutional rules. But the state laws that have been proposed to deal with this problem are unlikely to do much about it because state laws don’t control the U.S. Supreme Court.

Instead, many such state laws are likely to interfere with the perfectly proper consideration of, for instance, foreign family law, contract law, tort law, and law of judgments, in those narrow contexts in which American law has long dictated that foreign law be considered. I hope that legislators, regardless of ideological affiliation, recognize the costs of such proposals and make sure that they don’t replace one problem with another.