January 2011

In "Oklahoma State Question 755 and An Analysis of Anti-International Law Initiatives," (pdf) law professors Martha F. Davis and Johanna Kalb write that Congress and state lawmakers are increasingly considering measures to prohibit judges from citing international law in unnecessary attempts apparently rooted in "a perceived need to defend Christian values, concern about state/federal sovereignty, fear of judicial activism, and belief in American exceptionalism." The authors cite the recent ballot measure called Question 755 approved in the fall by Oklahoma voters that states, "The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law." Apparently in Oklahoma some lawmakers and religious right advocacy groups were concerned about a "takeover of Oklahoma by Islamic extremists who want to undo America from inside out." (The measure is currently facing a constitutional challenge in court.)

Similar measures to bar citation or consideration of foriegn authorities have also been advanced in Congress and other state legislatures, such as Arizona, Iowa and South Carolina.  

But Davis, a law professor at Northeastern University Law School, and Kalb, a law professor at Loyola University College of Law, write that the concerns motivating such measures are unfounded and could lead to laws that violate the U.S. Constitution, and seriously disrupt the nation's international commitments.

The Constitution, the authors note for example, states that "treaties are the Supreme Law of the Land," and that state constitutions "almost always explicitly or implicitly acknowledge the binding nature of ratified treaties."

"The prominence," the authors continue, "accorded to treaties in both the Federal and state constitutions reflects the understanding that ‘if the United States [is] to bargain effectively, the national government must not only have the power to conclude treaties but to compel states to observe them.'"

And just one state's "refusal to permit its courts to enforce the United States' international obligations puts the entire nation's credibility at risk, with potentially devastating results for the country's ability to protect its citizens and businesses," the authors write. "On a wide range of matters, from the detection and prevention of terrorism to the regulation of trade and monetary policy to the protection of the environment, the success of the United States' efforts depends upon its ability to follow through on its international commitments."

Moreover, the authors note a long tradition of American courts citing international and foreign authorities.

"In fact," they write, "citation of international and foreign law is a venerable practice in the U.S. judicial system, dating back to the founding period. A majority of the U.S. Supreme Court has continued this practice in recent years, sometimes in cases that concern hotly debated issues of law and public policy."

Even Supreme Court Justice Antonin Scalia, who has groused about his colleagues' use of foreign authorities in their decisions, has taken the approach. As noted by Scott Lemieux at the blog Lawyers, Guns and Money, Scalia recently cited a House of Lords opinion in a dissent. "Seriously," Lemieux writes, "there is of course nothing the slightest bit objectionable about citing a foreign court as part of a larger argument about American law. This whole 'citing foreign law' controversy, which Scalia has at times attempted to stoke, is just culture war rube-running, invoked solely to argue against outcomes people disagree with for independent reasons."

A recent decision of the Massachusetts Supreme Judicial Court in U.S. National Bank Association v. Ibanez underscores this truth. In that case, the court concluded that the lower court correctly denied two institutional mortgage holders clear title to properties they claimed to own because they failed to demonstrate they had satisfied all the procedural conditions attending foreclosure actions under Massachusetts law. In Ibanez there is a lesson for other institutional mortgage holders and, perhaps more importantly, an important statement about the way in which procedure may protect individual property rights.

The cases addressed in Ibanez began when U.S. Bank National Association and Wells Fargo Bank brought separate actions in the Massachusetts Land Court to establish title in properties each came to possess through various assignments. Massachusetts statutory law allows mortgage holders and their assigns to foreclose without judicial involvement, but for the plaintiff banks to receive clear title, they had to prove they had the authority to foreclose and that they complied with the statutory requirements. By statute, they had the proper authority only if they were assignees of the mortgages at the time of the notice of sale and the subsequent foreclosure.

Here is where the plaintiff banks ran into trouble. They claimed they had valid authority as assignees and offered as proof a mass of documents relating to the creation of securitized mortgage pools that included the original mortgages. But neither bank could produce documents containing actual assignments to them; what evidence of assignment they could produce indicated that the mortgages had been assigned to a chain of other entities at earlier points in time, with no evidence of the particular assignments the banks now claimed.

The court reasoned that, when a plaintiff seeks "a declaration of clear title after a mortgage foreclosure, a judge is entitled to ask for proof that the foreclosing entity was the mortgage holder at the time of the notice of sale and foreclosure, or was one of the parties authorized to foreclose [under the controlling statute]." Plaintiffs that cannot satisfy this standard cannot complain the court unfairly denied them clear title, and the Supreme Judicial Court ruled that the lower court did not err in denying the plaintiffs' requests for clear title.