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Copyright (c) 2013 New England School of Law
New England Law Review

SYMPOSIUM: CRISIS IN THE JUDICIARY: Shadow and Substance: The Impacts of the Anti-International Law Debate on State Court Judges

Spring, 2013

New England Law Review

47 New Eng. L. Rev. 631


Martha F. Davis*


In November 2010, the citizens of Oklahoma voted overwhelmingly to strip their state courts of the authority to consider international or foreign precedent, singling out Sharia law for special reference. 1 Implementation of the Oklahoma referendum, which amended the state constitution, was subsequently enjoined on First Amendment grounds, first by the U.S. District Court and then by the U.S. Court of Appeals for the Tenth Circuit. 2 Despite that injunction, copycat measures - state constitutional amendments as well as state legislation - have subsequently been considered in at least twenty states. 3 Most of these legislative campaigns have failed to achieve changes in the law, but a few of the resulting proposals have been adopted. 4 Indeed, in 2012, Kansas Governor Sam Brownback signed into law a measure forbidding Kansas state courts from relying on international or foreign law. 5 A handful of other states, including Tennessee and Louisiana, have adopted similar provisions: specialized choice-of-law legislation that explicitly disfavors application of international or foreign law. 6

The text of the Kansas law is representative of this second wave of facially neutral provisions. It states that:

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 the matter at issue in whole or in part on any foreign law, legal code or system that would not grant the ...
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