Recommendations to the Trump Administration Regarding the Consideration of Foreign Law by Courts in the United States

SUMMARY

The Foreign and Comparative Law Committee (Maria M. Patterson, Chair) raised concerns over efforts to prohibit or impede courts – through legislation or judicial litmus tests – from considering or applying foreign, international or Sharia law. Such efforts are unconstitutional, unwise and unworkable, and have almost universally been the result of poor legal scholarship driven by Islamophobia.  Courts in this country have long considered, debated and applied foreign law, whether in reference to the interpretation of our Constitution, as selected by contractual parties to govern their contracts or otherwise. Courts have also applied international law in the form of treaties or international conventions to which the United States is a party. The overarching principle in our law and in all our courts is to support the freedom to contract and apply non-U.S. law as the parties deem appropriate. Thus, to interfere with the established functioning of the courts is unnecessary and a dangerous interference with our Constitution and the personal lives and commercial interests of our citizens.