Wasn’t aware of the Ontario experience, but when I saw the OK amendment my immediate thought was “How does this affect a Beth Din?”
In Canada, the Beth Din’s decision would likely be disallowed, unless both parties agreed to its decision in front of a judge of a neutral court: provincial or Queen’s Bench/Superior Court, as appropriate. If one party disagreed with the religious body’s decision in front of the judge, it would not stand; and I’d guess that the matter would have to be decided upon by the (neutral) Court; or by a neutral, non-religious, arbitrator.
Note that this is only my guess; I have no experience in these matters.
I’m as, or more, anti-American exceptionalism as the next guy, but the idea that American judges should use American laws and precedents in our court cases isn’t American exceptionalism. It’s the same reason we don’t let Ohioans vote in Californian elections. Not Californian exceptionalism, but Californian Government isn’t the same as Ohioan Government.
Sure, they are very similar (far more than two separate countries), but they’re not the same. There’s nothing inherent wrong with citing a foreign decision, but it’s absolutely not necessary or preferred.
Its been blocked already. See here
From the article:
U.S. District Judge Vicki Miles-LaGrange handed down the order after an Oklahoma man filed a lawsuit claiming the amendment stigmatized his religion and would invalidate his will, which he said is partially based on Islamic Law, also known as Sharia Law.
“My constitutional rights are being violated through the condemnation of my faith,” said Muneer Awad, executive director of the Council on American-Islamic Relations in Oklahoma. “Islam was the target of this amendment. This amendment does not have a secular purpose.”
I hope this carries some legal ‘weight’, but I have no idea at all. Just posting it here for those ‘in the know’ to comment upon…
Empedocles the Cretan says all Cretans are liars.
Now there is an interesting, unintended consequence.
Although I don’t see how/why that would invalidate his Will, unless he was nonspecific in who got what in his will and just said “divide it up according to Sharia Law.”
Well, if the guy on his own said, “Item-A goes to my wife, Item-B goes to my son, etc.” and that was in compliance with Sharia law no court would care. He can give his stuff away as he sees fit for whatever reasons he wants.
However, if the guy says, “I want my assets sold in compliance with Sharia law and divided up in these percentages to these people/groups also in compliance with Sharia law” then presumably the OK courts would have to ignore that. Particularly if the will is contested.
How is it unintended? If the amendment is not aimed at preventing people from regulating their affairs by reference to Sharia principles, then what is it for?
And, I rather suspect this gentleman rewrote his will recently to make it specific about sharia law, in order to be able to file suit.
Good on 'im.
Bad analogy. As I and another poster have pointed out, the use of decisions from other jurisdictions as persuasive authority is a feature of the common law world. I’m not aware that you can say the same about allowing non-residents to vote in elections.
True enough, which leads into some comments I should have made earlier regarding–
Ever watch Judge Judy, or Judge Joe Brown, or Judge Milian, or any of those reality court shows? Most of the cases brought before the Court on those shows are contractual in some way: a lease, a loan, a borrowed car, an agreement of some sort. The TV judge adjudicates the case according to long-standing principles of contract law. Similarly, with rarer cases involving, for example, the law of fixtures (a branch of property law), the judge uses old principles.
Where did these principles come from? They are so common that it would be well-nigh impossible to cite a single case that gives rise to, for example, the contra proferendum rule. But they exist in all common-law countries, and have been used in American law (and in British, Australian, Canadian, and other common-law jurisdictions’ law) for centuries; and I’d suggest that it would be ludicrous to be mandatory to cite American cases in such matters. Sure, it could be done, but when the foreign principle has been known and unnecessary to cite numerous times in American cases … why?
Common law is a clear exception in the wording of the amendment, though.
Choice of law issues still remain. Interestingly, when is it “necessary” to apply the law of another state, say, the state of New York? Does a choice of law clause make it necessary, or can the Court say “well, coulda been governed by Oklahoma law. We’re going to use that instead”.
Removes a whole lot of certainty from some very carefully drafted agreements.
I don’t think so. If we edit the excerpt you cited, we arrive at:
I would assume that “established common law” in the state of Oklahoma includes, but is not limited to, common-law principles passed down through the centuries from multiple common-law jurisdictions (US and foreign) and upheld by American courts.
Still, the amendment as quoted seem pretty clear that Oklahoma wants no Sharia law in its courts.
I can’t see how this passes the Lemon Test. It will be stricken from the books before it is ever applied to one real life situation.
When an Oklahoma driver is involved in a collision with a New York driver, in the state of New York. I am only guessing, but it seems to me that the jurisdiction where the collision took place (the lex situs) would be the location whose laws govern. Thus, even though the accident occurred in New York, if the Oklahoma driver launched an action in Oklahoma, the Oklahoma court would have to adjudicate it according to the laws (highway traffic act, common-law, etc.) of New York State.
Note that I am only guessing–I honestly do not know what would happen in the US. I am basing my answer on what would happen here in Canada regarding torts (the Tolofson Rule), and precedents may be different in the US. But it is a sensible and logical rule (torts are decided based on the law of the location where the tort occurred), so I would imagine it would be much the same in the US. I would welcome the comments of an American legal Doper on this question.
Not sure about this claim. Who would have standing?
Someone who set their will up to be adjudicated using sharia law, maybe?
The USA isn’t a commonwealth country. If we wanted tot be, we would. We don’t, and aren’t. In fact, I think I recall there being a war fought over it. I’m not entirely sure though. 
What does being in the commonwealth have to do with the discussion?
It is true that the US has a large enough body of law that it doesn’t need to look to other countries’ precedents. But the same pretty much holds true for any common-law country: no Australian lawyer, for example, would use a Canadian precedent when an Australian one is available, as it would be in most cases. If an Australian lawyer tried to use a Canadian case to support his or her argument, he or she would be well-aware that the Canadian precedent is not binding on the Australian court at all, and could only be used to persuade the Australian court.
It is this persuasiveness that is being discussed. And it is true that a number of Americans, both lawyers and laypeople, don’t think foreign law should be referred to at all when an American court makes a decision. However, while American courts rarely use foreign law, they have used it on occasion–as a fairly recent example, I’ll offer Lawrence et al. v. Texas, 539 U.S. 558 (2003) (cite), where the Supreme Court of the United States considers a foreign case, at p. 573:
Was Dudgeon binding on the American court? No, of course not. But in the common-law tradition, being factually similar to the Lawrence matter, it was considered by the American court, and it may have helped persuade the court to make the decision it did.
Certainly, American decisions have been considered in Canadian law. For example, R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 (cite) mentions and considers Terry v. Ohio, 392 U.S. 1 (1968). In this use of American precedents by the Supreme Court of Canada (SCC), you may be interested in “American Citations and the McLachlin Court: An Empirical Study,” by Peter McCormick (PDF here). As to how and why American cases can be used by the SCC, McCormick notes, at p. 108:
It is the similarities, the “considerable congruency,” that allows common-law countries, the US included, to consider (but not be bound by) each other’s decisions. Like decides like, as I said upthread.
Throughout this thread, it has been pretty clear that the rules jeopardized by the recent Oklahoma amendment are those of contract law. I doubt that you will find a case of an Oklahoma driver contracting with a New York driver to have an accidental collision.