YESS! Just as "liberal" means the opposite of its original pro-freedom derivation today, the term ':progressive" has also been hijacked & 'oppositized' by the State-controlled schools & media. Today "progressive" refers to the Regressive policies that are taking our society BACKWARD toward lasting war, poverty and servitude.

Calling Statists "progressive' just aids the destruction of our language and our civilization.

Thank you very much for your thoughts. This has been a fruitful exchange of ideas. I am aware of the current Costco/Amex relationship. There might well be litigation. If so, the choice of law provision will be enforced. As to contract law being based on precedent, remember that the various statutes of limitation and the entire Uniform Commercial Code are statutory. In any event, thank you again for this exchange. It made me think and I appreciate that greatly.

"First..."

I agree with everything you say here.

"You seem to think..."

I merely pointed out the pitfalls that come from suing in a venue that may not necessarily have final jurisdiction. (FYI - Costco just dumped AmEx and went with Mastercard, but again, this is all US-based. If you want to make your point, you really need to cite an extra-US case.) I do agree that the choice should be up to them, but that they also have the responsibility of going in with their eyes wide open and both parties are benefited by a stable legal environment. If I am a judge and I start citing Nigerian tribal law in a US Court, neither party is going to be very happy with me - unless one is Nigerian.

"You mention..."

There is a reason why the US Constitution mandates a "jury of peers" and the right to confront one's accuser. Those provisions do not necessarily exist in other nations' laws. Sharia itself specifies a certain court makeup (no females) and certain rules (must be at least three witnesses, etc.). While I understand what you are trying to say, it is inconsistent to claim simultaneously that venue is not subject to the rules even when the laws are. It is the entire legal system that must be consistent.

"A word on precedent..."

True, but in contract law, statute is very rarely present to rely on, unlike in criminal law. Almost all contract law is based on precedent - thus the establishment of such should not be taken lightly.

I understand your concern about the potential disruption to existing contract relationships and agree that it is a legitimate concern. However, I weigh it in comparison to the concepts of #1 sovereignty and #2 legal consistency (including precedent) and look at what would be more disruptive: suddenly having to worry about unknown laws being thrown in the mix in a legal preceding, or being locked into a known set of rules. I choose the stability.

First, on the issue of enforcement of judgments, which you reference several times, it is rare that the losing party in a U.S. case has no assets that are reachable. I concede it does sometimes happen but, as you note, that is a risk knowingly taken by the parties. Within the U.S., of course, the states give full faith and credit to judgments from other jurisdiction (unless it involves gay marriage!) so it is merely an expense not an impediment to enforcement. This risk of non-enforcement is similar to the risk we all take when we contract with someone or some entity who may file bankruptcy and discharge an obligation to us. Hint: Don't loan any money to the Greek government right now.

You seem to think it not "wise" for anyone to choose the substantive law of another forum. In fact it can be very wise if you are familiar with the law in that forum. Also, it eliminates confusion and litigation concerning which forum's substantive law will apply. It also creates uniformity if you are doing business in a number of different jurisdictions. For instance, American Express and Costco have an exclusive agreement regarding use of credit cards at Costco locations. Both companies do business in all states (I think). When disputes arise regarding card/credit use in individual locations the parties find it to their advantage to have a single forum's substantive law applied. Without knowing I'm willing to bet there is a choice of law provision in their agreement. They think it "wise." It should be up to them.

You mention issues like jury composition and rules of procedure. These are procedural rules and cannot be borrowed by a choice of law provision. If venue is proper the rules of the forum control those issues. The choice of law provision only controls substantive law. I apologize if I had not made that clear.

A word on precedent. A statue is not precedent, it is the law itself. Precedent is the doctrine whereby the common law is changed incrementally by court decisions with later decisions rely upon prior ones to fit new factual scenarios. Among other virtues, it allows predictability so that individuals may conform their behavior to the law knowing that it is unlikely to change radically. This statute is potentially disruptive because of its breadth (remember, it is not limited to Sharia law) and threatens existing contractual relationships previously relied upon by many parties. This goes against one of the virtues of law by precedent.

"To put the parties existing choice of law agreements in peril by passing 50 different "foreign law" statutes is not a good thing."

The reason I brought up enforcement in the first place is because in contract law, that's what you are ultimately concerned with. By doing business with a company of another nation, you are already ceding the fact that if you do not sue them in their own country, enforcement of any judgement is going to be dubious. But one thing I thought about last night was the problem that businesses are trying to have it both ways here: they are trying to force their own legal agreements onto a court system that may not be familiar with the laws in play. That sounds to me like the business is creating their own problem and then trying to claim that the judiciary system is responsible!

When you take a case to court, you attempt to influence the venue so as to increase your chances of a preferred outcome, but it isn't an outcome of verdict only, but of verdict AND enforcement that is key. If you as a business ham-string yourself by choosing a venue which is positive but where enforcement is dubious, shouldn't you just acknowledge that up front when dealing with the risk of any potential contract? And what about in instances where the law specifically biases justice in favor of one's own nationality or religion, such as in the case of taqiyyah under Sharia? What about in China where bribes are the modus operandi of business?

Further, why would you want a judge or attorneys adjudicating or arguing a case according to laws they are not familiar with? What about in instances where the laws dictate the jury structure and composition as well as the rules - as in Sharia? To attempt to force these conditions upon an unprepared legal system does not seem wise to me.

I want to give business as much free rein as possible, but I think there must also be reasonable expectations on the business' side. If you want minimal government, that is going to come with the limitations of jurisdiction and enforcement. It can't be both ways.

"Do you really think that any U.S. jurisdiction is on the cusp of adopting Sharia law?"
Yes. England already has a problem (http://www.americanthinker.com/articles/...). Canada took the proactive stance Montana is taking (http://www.canadianlawsite.ca/sharia-law...). To say that it is not a danger is naive at best. Again, I go back to the problem of precedent - ESPECIALLY in contract law. It's MUCH better on the legal system to establish good precedent for use than to have muddied waters. "An ounce of prevention is worth a pound of cure" is (I think) a particularly apt metaphor in this instance.

"I think it ironic that on this site..."
Perhaps. I actually see it as of paramount importance. If we are to limit government's role and use the judiciary as our primary mode of dispute resolution via lawsuits, I think it behooves us to make sure the ground rules are stable. That means that we must have control over the rules, ie sovereignty. Businesses engage in business according to the rule "caveat emptor". That they should simultaneously expect security seems a bit two-sided to me.

the "social crap" is being enforced in many Sharia
law countries ... stonings for adultery, e.g.

BHO's religious beliefs tend to guide current
u.s. foreign policy.

I have a Christian friend from whose thumb was
cut off for some strange reason -- mostly that
he is Christian, I believe.

the encroachment of foreign or international law,
on gun ownership as another example, scares
many of us here. -- j

You stated that there are a variety of contracts that are not enforced under the common law as a matter of public policy. None of them apply here of course. Here the applicable public policy is that favoring the parties' right to choose what substantive law will apply to an interpretation of their contract. The proposed Montana law conflicts with that policy. There is no reported decision applying any of the worst elements of Sharia law, according to you, in lieu of applicable U.S. law.

You are right, maybe we are saying the same thing. Let's see. First, in the civil realm, you are correct that U.S. law does not depend on foreign law to function. But if the parties agree on a non-fourm law they will enforce it. Examples would be the law of a "foreign" state or land or even a non-geographic specific law like Robert's Rules of Order or the rules of the American Aribitration Association. Your reference to the enforceability of U.S. state or federal judgments in foreign lands is correct, subject to treaty agreements. But so what? Your point about the futility of not passing a law against murder until one occurs sounds like the plot of the Mikado. Entertaining, but irrelevant. As to the good sense of avoiding "ambiguity and legal chaos" in the area of contract law, that is one of my points! There are hundreds of thousands if not millions of existing choice of laws provisions in U.S. contracts as we speak (credit card agreements, mortgage loan agreements, insurance agreements, etc.). To put the parties existing choice of law agreements in peril by passing 50 different "foreign law" statutes is not a good thing. At least I hope we can agree on that.

Second, what is the "potential for a severe problem" that we are talking about? Do you really think that any U.S. jurisdiction is on the cusp of adopting Sharia law? What is the evidence supporting that fear? What next, a law forbidding black helicopters and contrails? Seriously, I think the advocates for this law need to show a problem before they promote a "solution" that threatens some unintended negative consequences. Don't you think?

Finally, I think it ironic that on this site we should be arguing about the right of individuals to choose their forum for dispute resolution and the substantive rules by which their dispute would be judged versus the "sovereign" rights of the state governments.

Huh?

No reply.

No reply.

No reply.

And where is the "social crap" about Sharia law emanating from? Would that be Fox News? Who caers about Obama's religious beliefs? And, by the way, nobody has had their thumbs cut off or advocated for doing so in any U.S. Court. If I am wrong about that, cite the reported case, please.

Sanity? In the Gulch? Say it ain't so! =D

Please re-state what you think I did or did not say.

But Luther was also not alone. There was a sizable contingent of reformists and all pointed to the organization's foundational documents to support their dissent. To this point, I don't see any such movement growing within the Muslim population, nor do I see a doctrinal base of internal contradiction for a basis for such dissent.

I agree that it would be wonderful to see, I just don't see it happening as of the result of internal pressures within the Islamic faith. I'd love to be wrong, however.

And just between us, neither does the book of Revelation.

Now maybe we're in actuality saying the same thing, but maybe not. When you mention "borrowing", however, you continue to cite instances from systems all taking their primacy of law from the US Constitution - thus the SAME canon. State Constitutions are subordinate via the Supremacy Clause in areas where Federal Law is explicitly granted primacy, but preeminent in all others (Tenth Amendment). There is no jurisdictional quandary I can see (except what gets imposed by an overeager Federal judiciary). In the case of a US court citing UN statute or Sharia law, however, it does introduce the very significant issue of primacy and jurisdiction.

And no, our commercial system does not rely on foreign law to function. Again, contract enforcement is restricted by jurisdiction - US law has no reach outside our borders! All we can do is penalize _other_ activities (preferably of the offending entity) here in the United States as a penalty offset. A US court can not issue an enjoinder of specific performance against a commercial entity outside of the United States - all they can realistically do is incur a monetary penalty to be exacted through import fees, duties, penalties, or other mechanisms so as to render monetary satisfaction in lieu of specific performance. Or general embargos which entice the foreign nation to impose some remediation on the offending business so as to reduce harm on others within its jurisdiction. However, to do so it must embargo future commercial endeavors within the US. If the company stops doing business in the US, enforcement is effectively stymied.

As to whether or not a problem must exist before preemption measures may be undertaken, I would propose the following for consideration: Laws against murder are preemptive in nature so as to dissuade the behavior in the first place. Requiring a murder to take place before putting into place a law against such I think you will agree is not only ridiculous, but would result in a never-ending game of catch-up. To complicate that further, where common law - especially contract law - relies so heavily on precedent, it is very much worth our time to keep such precedents free and clear from the ambiguity and legal chaos resulting from a jurisdictional disagreement, wouldn't you agree?

So regardless of whether the law is reactive or proactive, it addresses the potential for a severe problem which has the potential to undermine sovereignty itself. Even if there were some factor involved that acted as a restraint on trade (which by-the-way I fail to see), I can't see any amount of trade being valuable enough to cede sovereignty over, but apparently we differ in that opinion.

As you note, the appellate courts straightened things out (although I doubt there have been 100 such reversals). "This is our system working the way it was designed."

The failure is important. Otherwise there would be no possible claim. But remember, no express warranty was given at the point of sale. Therefore, the doctrine of implied warranties applies. Those warranties are a matter of state law and vary. The point of the hypothetical was to underscore why it matters which state law applies and how the proposed Montana law would foil the parties' intent.

In civil law we already have a system in this country where the sovereignty of the forum state law is not absolute in the way you suggest because we live in a federalist system. State courts, including those of Montana, are borrowing substantive law of other states daily and, of course, federal courts borrow substantive law of the forum state or some other state, or even or a foreign land, constantly. Our entire commercial system relies upon and assumes this fact. In recognition of it, entire law school courses teach choice of law principles. In many many cases the courts allow the parties to choose applicable law. The proposed Montana statute rides roughshod over those choices and commands that decisions based upon them be ignored as "void." As to the criminal arena, this is a non-problem. No matter how heated the rhetoric on this thread has become, no one has been able to cite a single reported appellate decision in the entire United States where a criminal conviction has been affirmed based upon the application of foreign law where a crime was committed in the U.S. So the Montana law is attempting to solve a non-problem while inviting significant mischief in the civil realm. I apologize to all in this forum who have misconstrued what I have said on this topic previously. It is no doubt my fault for failing to convey my view clearly.

Agreed.