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States Target Foreign Law
February 8, 2012 8:36 AM   Subscribe

There are several groups trying to pass bills in different states to ban the application of foreign laws in a US court, especially Sharia law. These groups are almost all using model legislation drafted by anti-Muslim activist David Yerushalmi.
posted by reenum (97 comments total) 3 users marked this as a favorite

 
Yerushalmi, a lawyer, is the founder of the Society of Americans for National Existence (SANE)

There are at least 2 problems with this name.
posted by Hoopo at 8:42 AM on February 8, 2012 [9 favorites]


So if someone else outlaws murder, it should be legal in the US?
posted by brokkr at 8:43 AM on February 8, 2012 [2 favorites]


This doesn't surprise me, coming from someone with a name so quintessentially American as Yerushalmi.
posted by Blue_Villain at 8:44 AM on February 8, 2012 [1 favorite]


I guess 'don;t waste tax payer money' is a core tenet of Sharia Law.
posted by spicynuts at 8:45 AM on February 8, 2012 [3 favorites]


Also of note: Yerushalmi.
posted by Blue_Villain at 8:45 AM on February 8, 2012


I just, I don't, Muslims are like 1% of the population. Where exactly would Sharia law be implemented?
posted by leotrotsky at 8:45 AM on February 8, 2012 [3 favorites]


I know very little about the law. In the US, if a contract is made under the auspices of sharia, halakha, canon law etc., do courts use the religious code to adjudicate disputes? Or the civil law?
posted by downing street memo at 8:46 AM on February 8, 2012


You know what other 1% is always implementing laws?
posted by spicynuts at 8:47 AM on February 8, 2012 [13 favorites]


No no no. Don't tell them it's a stupid endeavor. Whatever pointless task takes up their time and attention is A-OK by me.

BOY I SURE WOULD LIKE SOME SHARIA LAW UP IN HERE. I HOPE THOSE FOREIGN LAWS APPLY IN THE US PRETTY SOON.

Also, I'd love to see them get behind some "separation of church and state" real laws, though obviously framed to them as "muslim".
posted by DU at 8:48 AM on February 8, 2012 [6 favorites]


“The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia law."

So, we can get those irritating Ten Commandments monuments out of courthouses now?
posted by GenjiandProust at 8:49 AM on February 8, 2012 [42 favorites]


In what sense is it "Foreign"? dont get it
posted by kuatto at 8:49 AM on February 8, 2012


Can we take these folks and the folks who want laws to quote their justification in the Magna Carta and let them have a cage match?
posted by rmd1023 at 8:51 AM on February 8, 2012 [8 favorites]


So when is the cutoff date? We didn't exactly invent Representative Democracy, or Common Law.

Does this mean that we'll go back to the Native American model, where there's no ownership of the land, and nature is not only not actively destroyed, but deified? Because that'd be pretty nice actually.
posted by Threeway Handshake at 8:53 AM on February 8, 2012 [4 favorites]


I know very little about the law. In the US, if a contract is made under the auspices of sharia, halakha, canon law etc., do courts use the religious code to adjudicate disputes? Or the civil law?

Depends. I think the Tennessee law is being challenged by a Muslim who asks that part of his will be carried out in accordance with Sharia law, for example.
posted by dismas at 8:54 AM on February 8, 2012


I know very little about the law. In the US, if a contract is made under the auspices of sharia, halakha, canon law etc., do courts use the religious code to adjudicate disputes? Or the civil law?

Some lawyers could probably answer this one more thoroughly and accurately, but no, in the US you do not have the option of having a religious court. Not even for marriages, divorces, or anything like that.
posted by the young rope-rider at 8:54 AM on February 8, 2012


From the "model legislation" link, the core of the argument appears to be that foreign judgments in courts using sharia law could be applied to US persons under the principle of "comity":

Granting comity to a foreign judgment is a matter of state law, and most state and federal courts will grant comity unless the recognition of the foreign judgment would violate some important public policy of the state. This doctrine, the “Void as against Public Policy Rule,” has a long and pedigreed history.

Unfortunately, because state legislatures have generally not been explicit about what their public policy is relative to foreign laws, including as an example, Shariah, the courts and the parties litigating in those courts are left to their own devices – first to know what Shariah is, and second, to understand that granting comity to a Shariah judgment may be at odds with our state and federal constitutional principles in the specific matters at issue.


I have no idea whether this is a legitimate concern (seems vanishingly unlikely), but it doesn't sound completely insane.
posted by bgribble at 8:54 AM on February 8, 2012


downing street memo: the parties to a contract can specify the governing law and the jurisdiction of that contract. You often find that international corporate deals will use the law and/or the courts of England*, or a US jurisdiction (often New York); even if neither of the parties is connected to England or the US. In addition, the parties can agree a procedure for arbitration - this could include something like "arbitration will be according to sharia principles, as judged by [a particular adjudicator or type of adjudicator]". You certainly see examples of this in the UK.

(And for example I saw a case a few days ago about a contract which had Brazilian governing law, the Brazilian courts had jurisdiction, and both parties were Brazilian companies, but the arbitration clause provided for arbitration in London, and an English court ended up ruling on the case, because there was a dispute).

Without having looked at this in detail, it would be interesting to see if it would prevent US courts from interpreting English (or other) law - because that's certainly something that they could potentially be required to do, not just block sharia law.

*Technically England and Wales (Scotland and Northern Ireland have their own, separate, court systems).
posted by Infinite Jest at 8:54 AM on February 8, 2012 [2 favorites]


I know very little about the law. In the US, if a contract is made under the auspices of sharia, halakha, canon law etc., do courts use the religious code to adjudicate disputes? Or the civil law?

They use the civil law (in the sense of "secular" not "as opposed to common law"). Religious law can be used to resolve disputes using binding arbitration, however. Basically there's a regular contract that says any dispute will be subject to binding arbitration by a religious court or arbitrator. Then the religious arbitrator uses the religious law, and the decision can be enforced in a civil court.

Of course, the contract still has to be valid (e.g. offer, acceptance, consideration), there are certain limits on arbitration, and the award must be something a civil court can enforce (e.g. no forced marriage or involuntary servitude).
posted by jedicus at 8:55 AM on February 8, 2012 [5 favorites]


GenjiandProust: "“The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia law."

So, we can get those irritating Ten Commandments monuments out of courthouses now?"

Other nations and cultures. America is a "Christian" nation according to these kinds of idiots.

posted by double block and bleed at 8:55 AM on February 8, 2012


Now we know how we can stop ACTA -- just say that it has something to do with Islam. Maybe there is a secret clause requiring all female Disney characters in exported DVDs wear burkas.
posted by RobotVoodooPower at 8:55 AM on February 8, 2012


You guys are on the right track. In the spirit of amending laws that require drug tests for welfare recipients to also apply to legislators, we should amend these laws to also apply to the Ten Commandments, the Talmud, and Catholic Canon Law.

Agreeing with their reasoning and applying it more universally...a great way to emphasize their bigotry.
posted by Billiken at 8:55 AM on February 8, 2012


in the US you do not have the option of having a religious court

Unless if you're a rapist pedophile who happens to be a Catholic priest.
posted by Threeway Handshake at 8:56 AM on February 8, 2012 [7 favorites]


it had also invoked an Islamic notion known as Hazanit, which gives preference to the father in custody cases.

A trial court didn't consent to the wife's request for a restraining order despite finding that her husband had assaulted her. The court's rationale: The man believed it was his religious right to have nonconsensual sex with his wife, and he lacked the requisite criminal intent needed to justify the order.

This reads like a mecca for MRAs.
posted by Ardiril at 8:58 AM on February 8, 2012


While we're preventing sharia law from turning America into an Islamic state, I'd also like to ban
- alien abduction
- bigfoot occupation of our national parks without a permit
- Necronomicon book clubs
- flying flying carpets without a pilot's licence
- vorpal swords
posted by justsomebodythatyouusedtoknow at 9:00 AM on February 8, 2012 [4 favorites]


We didn't exactly invent Representative Democracy

The last link alleges Yerushalmi isn't a big supporter of democracy:

"If his racially infused writings and rhetoric are any indication, it's Yerushalmi, not his Muslim bogeymen, who seems most determined to remake the American political system. Per its mission statement, SANE is "dedicated to the rejection of democracy and party rule," and Yerushalmi has likewise criticized the universal suffrage movement. As he once put it, "there's a reason the founding fathers did not give women or black slaves the right to vote.""

I don't know how reliable the cited link in the Mother Jones article is, but I don't much want to be skipping around contentious and possibly racist websites from work.
posted by Hoopo at 9:03 AM on February 8, 2012


Vorpal axes and polearms are still ok though, right justsomebodythatyouusedtoknow?
posted by some loser at 9:05 AM on February 8, 2012


This doesn't surprise me, coming from someone with a name so quintessentially American as Yerushalmi.

I'm pretty sure that the best way to respond to a bunch of nutjobs who are trying to paint Muslims as somehow insufficiently "American" is not to start painting Jews as somehow insufficiently "American."
posted by yoink at 9:07 AM on February 8, 2012 [10 favorites]


While we're preventing sharia law from turning America into an Islamic state, I'd also like to ban
- alien abduction
- bigfoot occupation of our national parks without a permit
- Necronomicon book clubs
- flying flying carpets without a pilot's licence
- vorpal swords


Just leave my fetus burgers alone. Mmm.
posted by kmz at 9:07 AM on February 8, 2012


Unless if you're a rapist pedophile who happens to be a Catholic priest.

quoted for just got real
posted by DU at 9:08 AM on February 8, 2012 [2 favorites]


jedicus or another lawyer, could you take a look at the model law? Article 2 looks crazy to me. If I read it right, any decision shall be void if based on a legal system that wouldn't grant the parties the same rights as granted in the relevant US state - including rights of privacy and marriage. So, if same sex marriage is legal in say New York, but not in (e.g.) England, then any English law decision would be invalid?
posted by Infinite Jest at 9:09 AM on February 8, 2012


It's a whole new breed of American Freedom Fighters. They hate us for our freedoms.
posted by It's Raining Florence Henderson at 9:12 AM on February 8, 2012


Other nations and cultures. America is a "Christian" nation according to these kinds of idiots.

Yeah, yeah, the next thing you'll say is just because Julia Child's kitchen in in the Smithsonian, we have to follow French school lunch legislation! You can pry the ketchup packets out of my kids' cold HFCS-stained hands!
posted by GenjiandProust at 9:13 AM on February 8, 2012


Good lord, they want to wipe out choice of law. Not to mention the laws violate constitutional freedom of contract--we can contract to have any law we want. Its called a choice-of-law clause in a contract and everyone does it. One can choose Sharia, Hebrew, Israeli law, whatever.

Such bullshit.
posted by Ironmouth at 9:13 AM on February 8, 2012 [3 favorites]


Moses, what an asshole...
posted by Inkoate at 9:18 AM on February 8, 2012 [2 favorites]


Mr. Santorum has called Sharia "incompatible with the civil code of the United States."

Catholicism is incompatible with the civil code of the United States. Why wouldn't the doctrine of ministerial exemption apply to Muslims just as it does the Christian religions?
posted by stupidsexyFlanders at 9:20 AM on February 8, 2012 [2 favorites]


What exactly is wrong with sticking to applying only non-religious foreign (such as contracts) and local laws? Including Sharia, Christian, etc. I don't see how any religious laws should have any foothold in the U.S. I'd rather not be stoning any non-virgin unmarried women anytime soon. (Deut. 22:13-21)

And what exactly is it about Sharia law that frightens people? I don't know a lot about it other than it's ISLAMIC!!!111bbq, is there some particular law that's bigoted, sexist, racist..?

Well, I looked it up and "Sharia deals with many topics addressed by secular law, including crime, politics and economics, as well as personal matters such as sexual intercourse, hygiene, diet, prayer, and fasting.

I don't know about anyone else but I've been petitioning to get the government out of our sexual/personal lives. I'd rather not add any laws to that.

Have we traditionally catered to foreign laws consistently?
posted by Malice at 9:21 AM on February 8, 2012


So, let me get this straight. If a Somali court sentences a woman to death for adultery and she escapes to the United States, with this type of law in place, a US judge could ignore that sentence and refuse extradition.

However, those of you who are against this type of law feel that the US should respect that foreign court and return her to Somalia for execution?
posted by Ardiril at 9:24 AM on February 8, 2012


Although courts don't apply religious law, they do sometimes have to apply the civil law of other countries. The model law would appear to preclude that.

More commonly, state courts often look to the law of other states, especially for new legal issues but also when they have to because of conflict of law principles. But not all state constitutions are the same: some grant rights that others don't, some grant stronger rights than others. The Constitution of Montana, for example, is the only state constitution with an explicit right to privacy. So if this law were adopted in Montana, it would appear to preclude a Montana court from relying on the law of any other U.S. state, since no U.S. state would "grant the parties affected by the ruling ... the same fundamental liberties, rights, and privileges granted under the U.S. and [Montana] Constitutions, including but not limited to ... any right of privacy ... as specifically defined by the constitution of this state."

The model law is pretty much crazy-town, legally-speaking, with a giant host of side-effects. It's probably unconstitutional as well, under the Contract Clause or the Privileges & Immunities Clause.
posted by jedicus at 9:25 AM on February 8, 2012 [1 favorite]


Sharia Law contains many provisions that facilitate heinous cruelty, primarily against women. But the majority of Muslims have no interest in taking advantage of same, and use Sharia law to regulate perfectly ordinary things, among them pre-nuptial agreements.

Then when they come to the United States, sometimes things go wrong, like, say, divorce, those Sharia contracts they have with each other have to be looked at by an American judge.

Without these laws, the judges are supposed to 1. ignore the God talk in those contracts, 2. ignore anything that contradicts American law, and 3. uphold the rest, just like any other contract.

Anti-sharia legislation would get rid of #3, and it would mess things up royally for many Muslims who immigrate to the United States. Bad, bad, bad idea.
posted by ocschwar at 9:28 AM on February 8, 2012 [9 favorites]


Infinite Jest: It's difficult for this lawyer to say exactly what the proposed legislation would do because it seems like a whole big ball of stupid, but my best shot is this:

The law basically makes any choice-of-law provisions in a contract very difficult to enforce. A choice-of-law provision is where a contract says "this contract shall be governed by the laws of the State of Mississippi" or whatever. If you sign such a contract, you might get sued in Alabama for any number of reasons (that's where you live and where the other party conducts business, and it's where a breach of the contract took place, &c.), but the court in Alabama will apply Mississippi law to the terms of the contract, even where Alabama law is at variance to Mississippi law.

What this proposed legislation seems to be saying is that, in order to enforce such a provision, the Alabama Court must first make a lengthy and probably complicated examination of whether Mississippi guarantees all of the same rights that Alabama does. If not, the contract (or, if severable, the choice of law provision) is unenforceable under this law.

The thing is, people and businesses do this all the time with all manner of laws. You can choose to have your disputes arbitrated according to British law; you can choose to have your marital property disposed of according to rabbinical law; you can even, if you want, flip a coin in front of the Judge if both parties agree.

Also, such terms might be related to the substance of the contract. Suppose you're buying meat that you think is kosher, and then you learn something that suggests your vendor is actually selling you kosher meat. You sue in state court and the court will have to take notice of what is kosher and what is not under the relevant (religious) laws. Under this proposed legislation, I don't see how a court could issue an enforceable judgment on the dispute, unless it first found that rabbinical laws guaranteed the same rights as the laws of the state.
posted by gauche at 9:29 AM on February 8, 2012 [1 favorite]


Ardiril, basically, no. You don't understand how this law or the law of extradition would work. Extradition usually requires symmetric illegality, which means that a person will only be extradited if the offense is illegal in both nations. Since adultery is not illegal in the US, extradition in that case would probably be denied.
posted by Inkoate at 9:29 AM on February 8, 2012 [4 favorites]


As he once put it, "there's a reason the founding fathers did not give women or black slaves the right to vote."

Hmm. I guess maybe no one told him that we didn't let Jews vote in some US states until the mid-1800s, because otherwise he'd be an enormous fucking horrible hypocrite as well as a gross creepy racist.
posted by elizardbits at 9:30 AM on February 8, 2012 [7 favorites]


However, those of you who are against this type of law feel that the US should respect that foreign court and return her to Somalia for execution?

Extradition doesn't work that way. First, it requires an explicit extradition treaty, which the US doesn't have with Somalia. 18 U.S.C. § 3184. Second, extradition can always be refused by the Secretary of State. 18 U.S.C. § 3186.
posted by jedicus at 9:31 AM on February 8, 2012 [4 favorites]


your vendor is not actually selling you kosher meat.
posted by gauche at 9:32 AM on February 8, 2012


OK, then how about the case from WSJ where the judge refused the restraining order against the man who raped his wife because he believed that was his religious right?
posted by Ardiril at 9:34 AM on February 8, 2012


OK, then how about the case from WSJ where the judge refused the restraining order against the man who raped his wife because he believed that was his religious right?

That also does not have anything to do with these proposed laws. That is a question of American criminal law called mens rea, which has to do with the mental state of the defendant. The mens rea requirement for rape laws are notoriously slippery, but the judge in this particular case must have decided that the defendant didn't have it.
posted by Inkoate at 9:38 AM on February 8, 2012 [1 favorite]


OK, then how about the case from WSJ where the judge refused the restraining order against the man who raped his wife because he believed that was his religious right?

Adding onto what Inkoate said, I would guess (without having looked into it) that in that case religious law was entered as evidence of the defendant's own mental state at the time of the act. This is different than his being found guilty or innocent on the basis of religious law.

That distinction probably seems more evident to lawyers than to non-lawyers.
posted by gauche at 9:42 AM on February 8, 2012 [4 favorites]


OK, then how about the case from WSJ where the judge refused the restraining order against the man who raped his wife because he believed that was his religious right?

That's not a case of applying a religious law, it's a case of trying to understand what was going on in someone's mind.
posted by yoink at 9:42 AM on February 8, 2012


Also it was overturned on appeal as shitty judging.
posted by Talez at 9:43 AM on February 8, 2012 [1 favorite]


Also, such terms might be related to the substance of the contract. Suppose you're buying meat that you think is kosher, and then you learn something that suggests your vendor is actually selling you kosher meat. You sue in state court and the court will have to take notice of what is kosher and what is not under the relevant (religious) laws. Under this proposed legislation, I don't see how a court could issue an enforceable judgment on the dispute, unless it first found that rabbinical laws guaranteed the same rights as the laws of the state.

I wonder if any rabbinical associations have started to look into this. I think a lot of people would be in for an unpleasant surprise if any of these laws get enacted (although I also think the Supreme Court would toss them pretty quickly). People are so used to the fact that 'religious laws' from religions that don't bother them are enforced all the time that it becomes invisible to them. When someone suddenly realizes that by passing these laws they'll be stepping on all kinds of non-Muslim toes the whole thing is likely to fizzle out.
posted by yoink at 9:47 AM on February 8, 2012 [3 favorites]


So when is the cutoff date? We didn't exactly invent Representative Democracy, or Common Law.

The fourth year of the reign of James the First (1607).
So says Illinois anyway.
posted by Winnemac at 9:48 AM on February 8, 2012


in the US you do not have the option of having a religious court
Unless if you're a rapist pedophile who happens to be a Catholic priest.


Except this isn't true. While the Catholic Church has ecclesiastical courts that operate alongside the criminal courts, they don't replace the criminal court process.

That there have been cases that were covered up for the criminal process, but not for the ecclesiastical process, doesn't make the claim that in the US you do not have the option of having a religious court, unless if you're a rapist pedophile who happens to be a Catholic priest, is false in those cases as well, because that also happened with Orthodox Jews, for example.
posted by Jahaza at 9:52 AM on February 8, 2012


I wonder if any rabbinical associations have started to look into this. I think a lot of people would be in for an unpleasant surprise if any of these laws get enacted (although I also think the Supreme Court would toss them pretty quickly).

I think an anti-Sharia legislation in Oklahoma got stayed for reasons similar to this. The judge basically said that if you forbid Sharia you have to forbid any and every religious-based law, and that would includre referring to the ten commandments etc.,
http://blogs.wsj.com/law/2011/09/08/oklahoma-faces-appellate-showdown-over-anti-sharia-law/

interesting aside with Kosher laws. In New York State there were statutes enforcing kosher labeling and I think the NYS department of whatever had enforcement officers (called, of course "the kosher patrol") and the US Supreme court ruled them invalid because the state was deciding what was kosher or not.

I suppose if the label on a product said kosher according to Rabbi Rabinowitz and if you called up Rabbi Rabinowitz about the product and he had no idea what you were talking about, the purveyor can be sued for fraud or false advertising, but that is different.
posted by xetere at 9:53 AM on February 8, 2012


ok... lost the thread a bit in the editing there. Should read more like this:

That there have been cases that were covered up for the criminal process, but not for the ecclesiastical process, doesn't make the claim that in the US you do not have the option of having a religious court, unless if you're a rapist pedophile who happens to be a Catholic priest, true either, because that also happened with Orthodox Jews, for example. So it's not something specific to Catholic priests.

posted by Jahaza at 9:53 AM on February 8, 2012


Notably, this law wouldn't prevent binding arbitration by a religious court or arbitrator, since the civil court wouldn't rely on religious law in deciding whether to enforce the arbitration award. So the law would screw up regular, secular choice of law clauses while allowing sharia-based arbitration awards to be enforced in civil courts. A pretty phenomenally stupid bit of (pretend) legislation, actually.

In fact, I am familiar with only one case in which a U.S. court directly applied Sharia law principles: Nat'l Group for Commc'ns. & Computers, Ltd. v. Lucent Techs. Intern., Inc., 331 F.Supp.2d 290 (D.N.J. 2004). Technically the court applied Saudi Arabian law, per the contract between the parties, but as a practical matter that meant Sharia.

And what, you might ask, was the sinister Sharia law issue in that case? Surely something really bad, like a woman being forced to marry against her will or a thief getting his hand cut off, right? Turns out it was about whether expectation damages may be awarded in a breach of contract action. The court held that, under Saudi Arabian law, the answer is no; expectation damages are a form of gharar, which is prohibited in Islamic finance. Thrilling stuff, let me tell you.
posted by jedicus at 10:22 AM on February 8, 2012 [11 favorites]


>So when is the cutoff date? We didn't exactly invent Representative Democracy, or Common Law.

The fourth year of the reign of James the First (1607).
So says Illinois anyway.


I, personally, would like to know more about this.
posted by benito.strauss at 10:32 AM on February 8, 2012


Jahaza: " Except this isn't true. While the Catholic Church has ecclesiastical courts that operate alongside the criminal courts, they don't replace the criminal court process."

How many Catholic priests have been put on trial in a US Court for pedophilia charges?

My impression is that the Church protects them from criminal prosecution, and from facing their accusers.
posted by zarq at 10:37 AM on February 8, 2012 [1 favorite]


Notably, this law wouldn't prevent binding arbitration by a religious court or arbitrator, since the civil court wouldn't rely on religious law in deciding whether to enforce the arbitration award. So the law would screw up regular, secular choice of law clauses while allowing sharia-based arbitration awards to be enforced in civil courts.

I don't read it that way. It seems to me that binding arbitration based on religious law would be unenforceable under the proposed legislation:
[2] 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, arbitration, tribunal, or administrative agency bases its rulings or decisions in in the matter at issue in whole or in part on any law, legal code or system ... (emphasis added)
As I'm reading it, the only way you could get a religious arbitration is if both parties voluntarily decided to submit to one, but the minute one of them tried to duck out, the other would have no legal recourse. I trust you'll tell me if I'm missing something.
posted by gauche at 10:37 AM on February 8, 2012


I would support this if (and only if) I could slip in a provision that would also ban Shia LaBeouf from being applied in the US.
posted by Mr. Bad Example at 10:39 AM on February 8, 2012


I, personally, would like to know more about this.

U.S. states have "reception statutes" or constitutional provisions that incorporate the English common law to the extent it doesn't conflict with U.S. or state law. Different states have different cut-off dates for the English common law. There are basically two camps: those that use 1607 (i.e. the founding of the Jamestown colony, the first successful permanent English colony, and thus in some sense the point at which English and American law began to diverge) and those that use the beginning of the American Revolution.

Virginia used the 1607 date in its constitution and New York used April 20th, 1775. Other states basically used those as a model.
posted by jedicus at 10:41 AM on February 8, 2012 [2 favorites]


I don't read it that way. It seems to me that binding arbitration based on religious law would be unenforceable under the proposed legislation:

Yeah, you're correct. I forgot that the model law also addressed arbitration.
posted by jedicus at 10:42 AM on February 8, 2012


Aside from the fact that this is ultimately a pointless symbolic exercise, I actually am having some difficulty finding a real objection to it, aside from the slimy motivation behind it.

We do have a body of law in the US: all laws at the Federal/State/Local level as well as treaties to which we have become participants. Contracts or any other legal agreement at variance with the existing body of law should be null and void anyway.
posted by chimaera at 10:45 AM on February 8, 2012 [1 favorite]


When it comes to binding arbitration, I would also say that the application of anything other than the existing body of law should be disallowed. "Binding arbitration" is a convenient way for those who are more powerful to slant contracts in such away as to strip the weaker of the full protection of American law in the first place.

Whether the arbitration clause is from a big company disallowing you to sue them in court for violations of the contract or from someone who wants an application of Sharia law, or Vatican law, or any other law, those clauses should be void. What should be done is that arbitration clauses of all types should be void if they enjoin someone from seeking redress in a court of law.
posted by chimaera at 10:49 AM on February 8, 2012


We do have a body of law in the US: all laws at the Federal/State/Local level as well as treaties to which we have become participants. Contracts or any other legal agreement at variance with the existing body of law should be null and void anyway.

Part of that body of law is "conflict of laws," which explicitly allows parties to a contract to choose to be bound by the law of another jurisdiction, including potentially a foreign country. There's no contradiction there.

What should be done is that arbitration clauses of all types should be void if they enjoin someone from seeking redress in a court of law.

What if they'd rather seek redress in a court of equity? (Just a little legal pedantry joke)
posted by jedicus at 10:56 AM on February 8, 2012 [3 favorites]


Contracts or any other legal agreement at variance with the existing body of law should be null and void anyway.

This is absurd. Contracts specify all kinds of things that have nothing whatsoever to do with "existing" law. In fact, if it's already covered by law, there's really no point in signing a contract in the first place. If I sign a contract with you to provide 10,000 widgets by November 10 2014 and you break that contract, is it your position that the contract should be unenforceable because there's no law that says you have to provide me with any widgets at all?
posted by yoink at 10:58 AM on February 8, 2012 [5 favorites]


That there have been cases that were covered up for the criminal process

When the percentage of cases of this nature that get "covered up" is 100, then it is de facto; it doesn't even matter if this is happening outside of normal process.

I'll gladly change my tune once I see lots of dudes in funny hats and collars get frogmarched in front of juries.
posted by Threeway Handshake at 10:59 AM on February 8, 2012


Contracts or any other legal agreement at variance with the existing body of law should be null and void anyway.

You're missing the point. Contracts are made in accordance with one of the many varying existing bodies of law, and part of freedom of contract is being able to freely decide which body of law we want.

There isn't one body of law in the U.S. There are at least 50 different bodies of law. Letting people choose which one applies to their agreements is a time-saving way of deciding, well, which one applies to their agreements. If we freely agree to have our contractual disputes settled according to the laws of Mississippi, then what we have agreed to is the contract as interpreted according to Mississippi law. That is our agreement. Even if neither of us is in Mississippi.

So if we agree to have our contractual differences settled according to rabbinical law, or canon law, our agreement is the contract as interpreted according to rabbinical (say) law.

You are saying that the Court should substitute some other agreement for the one we made. Can you tell me what you think the benefit of this would be? I can't think of any, but I am sure it would introduce great uncertainty into contract law.
posted by gauche at 11:03 AM on February 8, 2012 [3 favorites]


Zarq: How many Catholic priests have been put on trial in a US Court for pedophilia charges?

My impression is that the Church protects them from criminal prosecution, and from facing their accusers.


You're impression needs qualification as to dates. Here's a list that includes about 200 priests convicted of sexual abuse crimes in criminal courts... and that's not counting the ones who were not convicted. So no, your impression that they're not prosecuted is wrong and so is Threeway Handshake's statement.

Threeway Handshake: When the percentage of cases of this nature that get "covered up" is 100, then it is de facto; it doesn't even matter if this is happening outside of normal process.

Sorry, no. You wrote that there was no parallel court system, "Unless if you're a rapist pedophile who happens to be a Catholic priest." This is false. That it's false doesn't depend on what percentage of Catholic priest cases were covered up for the criminal courts, because as I wrote above the "unless" part is false. Even if we agreed that there used to be a paralell system, there wasn't a paralell system only for Catholics, because there were many cases involving non-Catholics that were handled similarly.
posted by Jahaza at 11:16 AM on February 8, 2012


If I sign a contract with you to provide 10,000 widgets by November 10 2014 and you break that contract, is it your position that the contract should be unenforceable because there's no law that says you have to provide me with any widgets at all?

Perhaps I wasn't clear -- If I broke a contract, you can sue me in a court of law. Putting a clause in where I disallow you to sue me, but instead are required to go to my buddy the "Arbitrator" is a perversion of the purpose of contracts.
posted by chimaera at 11:16 AM on February 8, 2012


If we freely agree to have our contractual disputes settled according to the laws of Mississippi, then what we have agreed to is the contract as interpreted according to Mississippi law. That is our agreement. Even if neither of us is in Mississippi.

I would contend that if neither party to the contract has resident, dealings, or business in the state of Mississippi, then that contract's clause should be void, and the contract must be amended to be interpreted according to the law of a locale in which one of the parties is resident (or does business), to remain valid.
posted by chimaera at 11:20 AM on February 8, 2012


Putting a clause in where I disallow you to sue me, but instead are required to go to my buddy the "Arbitrator" is a perversion of the purpose of contracts.

Um, no. Preventing parties to a contract from freely agreeing how disputes to that contract should be handled is a perversion of the purpose of contracts.

There are some problems with arbitration, but those problems -- or at least the ones I'm aware of -- are pretty specific to contracts of adhesion between businesses and unsophisticated consumers. Not all contracts are contracts of adhesion -- indeed, the vast majority of contracts are not.
posted by gauche at 11:21 AM on February 8, 2012 [3 favorites]


Um, no. Preventing parties to a contract from freely agreeing how disputes to that contract should be handled is a perversion of the purpose of contracts.

So I'm freely able to negotiate a contract with AT&T to remove the Binding Arbitration clause from my cell contract? Oh, I see what you mean. I'm free to NOT be able to negotiate with someone else. T-Mobile, or Verizon.

Or I can just go without any services because nobody is willing to negotiate with me. When all providers in an entire industry offer take-it-or-leave-it contracts that require Binding Arbitration, then if I want that service, I am not freely able to negotiate with ANYONE to get that service.

Are not contracts entered to between those who are equal in the eyes of the law? If I cannot negotiate, and I must waive my rights to sue the other party, you damn well better believe that's a perversion of the purpose of contracts.
posted by chimaera at 11:27 AM on February 8, 2012


I would contend that if neither party to the contract has resident, dealings, or business in the state of Mississippi, then that contract's clause should be void, and the contract must be amended to be interpreted according to the law of a locale in which one of the parties is resident (or does business), to remain valid.

Why on earth would you introduce uncertainty into a perfectly clear expression of the wishes of the parties? What possible benefit do you think that would have? Do you think it would make litigation simpler, or less expensive?

Are not contracts entered to between those who are equal in the eyes of the law? If I cannot negotiate, and I must waive my rights to sue the other party, you damn well better believe that's a perversion of the purpose of contracts.

The term you are looking for is in the next paragraph of my comment: "Contract of adhesion." As is my sentiment that such contracts are indeed problematic.

Also, you are kind of letting your opinions on this issue derail an otherwise interesting thread into an explanation of basic contract law. I can recommend some books if you like.
posted by gauche at 11:30 AM on February 8, 2012 [3 favorites]


Putting a clause in where I disallow you to sue me, but instead are required to go to my buddy the "Arbitrator" is a perversion of the purpose of contracts.

I suggest reading up on how arbitration works. The Federal Arbitration Act requires that arbitration be "fundamentally fair," so blatant conflict of interest on the part of the arbitrator is right out.

As a practical matter, arbitration usually works by having the parties saying "we want these qualities in an arbitrator" (e.g. experience, qualifications). The arbitration organization then provides a list of potential arbitrators with those qualities. The parties then rank the potential arbitrators, and the best match is selected. It's not like one party gets to unilaterally pick an arbitrator that they like.

Statistically, arbitration outcomes are similar to court outcomes, and arbitration is faster and cheaper. Remember, too, that the vast majority (95%+) of court cases do not go to trial. In most cases the result is a settlement, involuntary dismissal, or summary judgment. Very few cases are appealed, as well.

No, mandatory binding arbitration isn't really a problem. The problem are clauses that prevent class actions/class arbitration and punitive damages. Those are what really prevent the legal system from effectively regulating the free market.
posted by jedicus at 11:31 AM on February 8, 2012 [4 favorites]


Come to Dearborn to see Sharia law in action! According to Geller, Limbaugh, Beck, Hannity, et al, we've been under it for years.
posted by Kokopuff at 11:38 AM on February 8, 2012


When all providers in an entire industry offer take-it-or-leave-it contracts that require Binding Arbitration, then if I want that service, I am not freely able to negotiate with ANYONE to get that service.

You will also find that they are not willing to negotiate on many other basic terms, such as price or the length of the contract. They also won't negotiate on features such as unlimited data, throttling, or tethering. Should you then be able to demand that a court force such terms on the other party?

Once courts get involved in rewriting terms, things get very messy, very quickly. You'd get countless class actions all demanding that the courts rewrite their contracts. And since you believe that choice of law clauses are inherently invalid, the results of those suits would be different depending on what state the plaintiffs lived in, so you'd get a 50-state patchwork of judicially rewritten contracts. It's hard to argue that such a state of affairs would be preferable to the status quo.
posted by jedicus at 11:39 AM on February 8, 2012 [1 favorite]


Agreed, this is a bit of a derail. But the frequency where trials find in favor of the corporation is for some reason far less than those of Arbitration -- Arbitration suffers from its own form of regulatory capture, and we've discussed here on Metafilter before how Arbitration is slanted toward corporations and away from individuals. I'll not comment further on this derail, though I do feel it pertinent to the discussion where someone can choose Vatican law, or Sharia law, or Somali law, or anything where the more powerful party can compel the weaker party to waive their right to seek redress in court. There are some rights that a person cannot waive. One of them should be to take a violation before a judge in a trial.
posted by chimaera at 11:39 AM on February 8, 2012


I'm afraid of Muslims.
posted by dougrayrankin at 11:44 AM on February 8, 2012


There are some rights that a person cannot waive. One of them should be to take a violation before a judge in a trial.

Again, not to further the derail, but signing a contract in which you waive your right to a trial is sometimes called "settlement" and it's how the overwhelming majority of disputes are resolved.
posted by gauche at 11:48 AM on February 8, 2012 [1 favorite]


Infinite Jest: "jedicus or another lawyer, could you take a look at the model law? Article 2 looks crazy to me."

The article: "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, arbitration, tribunal, or administrative agency bases its rulings or decisions in in the matter at issue in whole or in part on 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[...]"

Correct me if I'm wrong, but isn't almost all American law originally (or in part) based on legal precedents from English law, dating back at least to the Magna Carta? Because I don't think English law allows the same fundamental freedoms and liberties etc. as American law does. If so, by passing this law, would they not be legally making any legal decisions, including this one, void within the jurisdiction that enacted the code? It seems like a catch-22 of idiocy to me.
posted by caution live frogs at 11:54 AM on February 8, 2012


Also I am not a lawyer. But I also found that article to be full of stoopid.
posted by caution live frogs at 11:54 AM on February 8, 2012


You guys are on the right track. In the spirit of amending laws that require drug tests for welfare recipients to also apply to legislators, we should amend these laws to also apply to the Ten Commandments, the Talmud, and Catholic Canon Law.

I think you may have intended this as a reductio ad absurdum, but there have been cases in which decisions from Catholic canon courts (and their Eastern Rite equivalents) and Jewish battei din (rabbinical courts) have been considered in civil divorce cases.

As someone raised Catholic and married to someone raised Jewish, I see absolutely no problem with getting that stuff out of the civil legal system. Religious courts' decisions should be binding only within the religious communities of people who agreed to abide by the laws of those religions.
posted by Sidhedevil at 12:22 PM on February 8, 2012


One of them should be to take a violation before a judge in a trial.

Already the case in California.

a contract in which you waive your right to a trial is sometimes called "settlement"

I can settle one suit with you while continuing to prosecute another. I still have the right to trial. Not to that one particular trial, okay, but I don't think that every single case where I'm unable to exercise a right means I'm being denied it. I have freedom of association even when I've got a restraining order preventing me from associating with one particular person.
posted by LogicalDash at 12:23 PM on February 8, 2012


This doesn't surprise me, coming from someone with a name so quintessentially American as Yerushalmi.

This probably didn't come out as unambiguously as you meant it to?

If what you mean is "It's ironic to see bigotry from someone who is likely, on the basis of their surname and what it suggests about their religious and/or ethnic identity, to be the target of bigotry themselves," I could not agree more.

Of course, it is a great US tradition to claw your way onto the raft of social acceptance and then stomp on the fingers of the other folks trying to get on. Some of the stuff Irish-American Tammany Hall types wrote about new immigrants from Italy would curl your hair, especially when you see how closely it mirrors the stuff nativists were writing about the Irish immigrants 30 years earlier.
posted by Sidhedevil at 12:29 PM on February 8, 2012 [1 favorite]


Jahaza: " You're impression needs qualification as to dates. Here's a list that includes about 200 priests convicted of sexual abuse crimes in criminal courts... and that's not counting the ones who were not convicted. So no, your impression that they're not prosecuted is wrong and so is Threeway Handshake's statement."

I had no idea, and stand corrected. Thank you for pointing out that page. Very much appreciated.

So those 200 are a little under 3% of the 6700 accusations which were found to be substantiated by the John Jay Report. Is there a tally anywhere of those who were not convicted?
posted by zarq at 12:30 PM on February 8, 2012


These are most likely the same conservatives that are upset that their 'religious freedoms' are being taken by the Health Care Bill provision that mandates contraception must be made available to all employees.

I guess religious freedoms don't count for all? [Not that Sharia law is a freedom per se].
posted by Rashomon at 12:52 PM on February 8, 2012


So those 200 are a little under 3% of the 6700 accusations which were found to be substantiated by the John Jay Report. Is there a tally anywhere of those who were not convicted?

The Bishop Accountability database is 200 convictions out of 1,543 accused or about 13% (and that includes accused where the accusation was found to not be substantiated by diocese or religious orders.)

(Also that the John Jay Report number of 6,700 is of accusations, not men accused where the accusations were found to be substantiated, which is 4,392. )
posted by Jahaza at 1:02 PM on February 8, 2012 [1 favorite]


These people are xenophobic stupid heads.

The US legal system has been applying foreign law since its inception in cases where the law of two different jurisdications may apply, or where the parties' contract specified that it would be decided under foreign law. There's already a well-developed legal principle that allows the domestic court with jurisdiction to protect fundamental rights if they clash with the foreign law.

In addition to choice of law cases (where you actually apply foreign law), I think these guys are also really concerned about any mention of foreign law or international law in court opinions is considered persuasive to deciding the issue under our law. For example, they got super-exercised when the Supreme Court discussed how most other nations do not execute juveniles in Roper v Simmons.
posted by yarly at 1:16 PM on February 8, 2012


Islamic commercial and religious law are not necessarily as distinct as some people here imagine, and even commercial law may have provisions that Western courts will not accept. I'm aware of an Australian case involving Jewish commercial law where this was an issue.

The parties agreed to binding arbitration by a zabla. The word zabla is an acronym for "each party chooses an arbitrator", so you end up with two arbitrators who agree on a third arbitrator between them. The idea behind this is that each party's concerns will be fully dealt with. Unfortunately, it turns out that Jewish law is (apparently) unclear on whether or how far the appointees are expected to represent the party who appointed them.

Anyway, there was a court case over alleged bias, among other things. The judge would not accept the idea that arbitrators could be anything other than absolutely independent and the arbitration was overturned. I suspect that a zabla will not be used again in Australia for binding arbitration. But is sharia free of similar problems? I suspect not. For one thing, the judge in that case said that
the express or implied agreement of the parties [...] could not exclude the overriding requirement that the fundamental principles of natural justice must be observed [...] each party must be given a fair hearing and a fair opportunity to present its case."
My understanding is that sharia, like halacha (Jewish law), gives some witnesses more weight than others. There are ways around this in halacha; I don't know whether or to what extent similar techniques exist in sharia, but it's obviously an issue.
posted by Joe in Australia at 1:56 PM on February 8, 2012


Mr. Santorum has called Sharia "incompatible with the civil code of the United States."

Santorum wants to impose 'Judeo-Christian Sharia'
posted by homunculus at 7:51 PM on February 8, 2012


I always wonder why I never hear about Sharia fear-mongers complaining about communities where an extremely conservative interpretation of Jewish law is strictly followed.
posted by ob1quixote at 11:04 AM on February 9, 2012


ob1quixote: "I always wonder why I never hear about Sharia fear-mongers complaining about communities where an extremely conservative interpretation of Jewish law is strictly followed."

It's a matter of degrees, personal agendas/vendettas of those in the anti-Sharia campaigns and perhaps also, their familiarity with the way Jewish religious courts work.

Jewish Beit Dins (religious courts) mostly focus on financial and legal disputes where doing so would not conflict with US law and the police aren't required to be involved. If someone is murdered (for example) that's outside the Beit Din's purview and they are required by law to notify and refer the sitation to local law enforcement. I don't know for sure, but I assume that a Sharia court would work similarly.

Honor killings and acid attacks on women in various Islamic nations have been documented, and that seems to be the most commonly raised criticism of Sharia courts -- even though such a court is never, ever going to hand down a ruling that says it's okay to go vigilante and murder someone for any reason.

While murder and abuse of women / children have also been documented in the Satmar community, they generally do not protect the perpetrators from justice. The Satmars have been the subject of quite a few complaints and investigations over the years including in some revealing documentaries -- they're frequently criticized by other Jews for their extremism and practices.
posted by zarq at 11:38 AM on February 9, 2012 [1 favorite]


There's an opinion article in the March issue of First Things opposing these anti-sharia laws, but it's not online yet.
posted by Jahaza at 4:10 PM on February 14, 2012


I wonder if the Establishment Clause in the US Constitution shouldn't be a barrier to enforcing any mediation agreement based on religious law. Courts often have to hear evidence on "foreign law", e.g. when enforcing a contract made overseas. But how could a court make a ruling when the issue is a matter of religious law, even commercial law that's part of a body of religious law? If it comes down to a dispute over religious legal authorities it should be a total barrier to the court, because making a ruling would be "establishing" one body of faith over another.
posted by Joe in Australia at 6:03 PM on February 14, 2012


Joe in Australia: "I wonder if the Establishment Clause in the US Constitution shouldn't be a barrier to enforcing any mediation agreement based on religious law."

There is tension there, which has been noted over the years in various papers and analyses. The Beit Dins are officially considered arbitration, not religious tribunals, entered into willingly by involved parties. ('Willingly' meaning that the involved parties signed a contract to abide by the Beit Din's decision.)

So because of this, rulings by Beit Dins are generally accepted by secular courts as legally binding arbitration, but their decisions have been vacated by secular court order in some cases. (I have no idea how rare or frequent that might be, but I suspect it doesn't happen all that often.)

Since Beit Dins must play a part in any Jewish religious divorce, that also creates a bit of a gray area because Jewish religious marriages are of course a religious sacrament.
posted by zarq at 8:10 AM on February 15, 2012


Sorry, hit post by accident.

US law solves the religious marriage issue by treating them entirely separate from civil ones.
posted by zarq at 8:13 AM on February 15, 2012


Jahaza: "There's an opinion article in the March issue of First Things opposing these anti-sharia laws, but it's not online yet."

The article is now online. The Dangers of Anti-Sharia Laws by Robert K. Vischer, First Things, March, 2012.
Though popular with secularists and religious conservatives, anti-Sharia legislation does not defend against theocracy but calls into question our society’s fundamental commitments to meaningful religious liberty and meaningful access to the courts. These commitments have been relied on by generations of Protestants, Catholics, Mormons, and Jews, and to try to remove them for Muslims both is unjust to Muslims and sets a dangerous precedent for other religious groups.

Yet some religious Americans have come to fear that “creeping Sharia” threatens our legal system and our freedoms. Proposals to legislate against Sharia’s use in the courts have been offered in dozens of states. This attack on the ancient system of Islamic law, a broad and diverse legal code that, like Halakhic law, governs everything from how to contract a marriage to how to prepare a meal, imperils the religious liberty of all Americans.
posted by ob1quixote at 11:05 PM on February 19, 2012 [1 favorite]


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