Wouldn’t the First Amendment prevent the courts from taking a substantive position on the issue anyway, then?
Presbyterian Church in US v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 US 440 (1969):
D’oh! :smack: You’re right, of course. Guess I was thinking back to all those crazy hypotheticals we worked through in my Conflict of Laws class, which often used car accidents involving cars and drivers from a number of jurisdictions. However, the Conflict of Law rules for car accidents don’t work for contracts, as you correctly note.
Since I am approaching this from the layman’s standpoint, and you are the expert, why don’t you tell me? How does this law pass the Lemon Test?
[QUOTE=tomndebb]
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.
[/QUOTE]
Not so, tomndebb. Those are the examples that the posters have been giving, but the Oklahoma International Law Amendment is much broader and applies to all legal disputes that come within the judicial authority of the courts of Oklahoma, at least to my read:
Before we can even begin to ask that question, we must first confront the issue of: who can ask the question?
Federal courts will not decide an issue unless there is an actual case or controversy associated with it. This is a constitutional requirement. It’s not enough, then, for someone to say, “This law banning all handguns violates the Second Amendment!” He must also be able to say, “I personally tried to buy a gun, as is my Second Amendment right, and was denied.”
Note that it’s not enough for him to say, “I want to buy a gun at some point in the future, and I know this law will stop me.” He has to be able to point to an actual injury, some real problem, to give him the standing to sue.
In this case, it’s not clear to me who might have standing. Since you said it will be stuck down before it’s ever applied, I asked about standing, since the essence of standing is that it be applied first, and then the person who is aggrieved by its application sues.
The amendment applies to all law. However, the point noted in this thread has been that only contract law is expressly affected by the law, (with a separate point I will address below), since criminal law and most non-contract civil law is already covered under the U.S. Constitution and common law.
The separate situation is that the courts are now proscribed from invoking other, outside law in their decisions, (as in the matter of International Law mentioned in this thread or the Ten Commandments mentioned in a separate thread). However, this is not really a change in practice. The references to International Law have been invoked for the purpose of providing context and inspiration for new rulings, but they have never been permitted if they contradicted U.S. or common law. They have merely allowed some judicial commentary on a ruling.
This will not really change, (although, just to rile up the bigots that promoted this amendment, I would be delighted to see some sharp lawyer argue that a sentence had to be overthrown because a judge now invoked the Bible while applying the sentence).
Not sure about this claim. Who would have standing?
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Well, the executive director of the Council on American-Islamic Relations has obtained a temporary injunction in Federal District Court to prevent the provision from coming into force, so they appear to have convinced a judge that they have at least some claim to standing. State Attorney General appears to be challenging his standing. The Matter will come on for hearing in two weeks’ time: Judge Puts Hold on Oklahoma Anti-Shariah Amendment.
Eugene Volokh on standing:
Follow the link for a more complete analysis:
A common law country can insulate itself from the decisions of another. Statutory and constitutional law overrules common law decisions. Oklahoma just insulted itself (leaving aside the dumbass Sharia provision that may get the law overturned.)
I wonder if there is an argument that the amendment violates the contract clause. The amendment could certainly substantially impair a contractual relationship. Oklahoma does not appear to be remedying a general problems. (Is there any evidence that Oklahoma courts are basing decisions on international or foreign law?) Finally, even if that is a problem, the law does not appear to appear appropriate to purpose since the law is so broad.
No disrespect, but if you don’t know the difference between “common law” and “commonwealth” perhaps you ought to learn it before participating further in legal debates. For your own sake.
Sorry, while I quoted you and responded to you, i was more actually replying to whoever it was that was talking about Australia and Canada earlier.
It was probably me. Regardless, I’ll say it again: membership in the Commonwealth has nothing to do with common-law decisions and precedents. If you somehow got hung up on the fact that the examples mentioned (Australia and Canada) are members of the Commonwealth, then you can substitute two countries that use a common-law legal system but are not members of the Commonwealth: the USA and the Republic of Ireland.
Quoth Pierrot:
Also true, but I think you meant to say “insulated”.
That’s what I get for using swype.
An update to the situation found here for those having interest. Looks like Judge wants more time for the complexities (in so many words), so the restraining order is extended until Nov 29.
An interesting thing in the article is about the bill’s primary author, former Representative Duncan and how he, in 2007, refused to accept (as a gift) a Koran from an OK Governor’s council (from the article) explaining that "most Oklahomans do not endorse the idea of killing innocent women and children in the name of ideology". Anything comment I make on that shit is best left to Pit, but does give a bit of background on mentalities at work (imho).