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You can name a perfume “Opium” and an energy drink “Cocaine,” and no one will stop you, Greg Beato writes in the latest issue of Reason Magazine.  But try to promote a new craft beer with the slogan “try legal Weed” (the beer in question happens to be made in the small town of Weed, California), and you will face a legal roadblock from the Alcohol and Tobacco Tax and Trade Bureau (TTB).

It should go without saying that it’s perfectly legal (and protected under the First Amendment) to make drug references.  So why does one government agency (the FDA) let such references go while the TTB clamps down on them?

Beato’s article suggests that Congress has seen alcohol and tobacco as being more taboo and thus meriting more regulation.  The article quotes Robert Lehrman, an attorney who has dealt with the TTB, who raises this hypothetical dilemma: “What would you do if somebody handed you, I don’t know, Hannah Montana beer, and said, ‘Please approve this’?”

Now I’m all for helping the kids; I think that something should be done to stop companies that sell alcohol and tobacco from targeting children.  But I do not think that the TTB, an organization that reviews more than 100,000 labels each year, is the proper mechanism.

We all remember Joe Camel, the friendly cartoon camel who, from 1987 to 1997, graced advertisements for Camel cigarettes.  Joe Camel is a good example of the proper way to police this sort of behavior.  It was not government oversight through the TTB or any similar organization that brought down Joe Camel, but rather the pressure of a private lawsuit that eventually led Camel to voluntarily pull the ads.

The various drug references, crude jokes, and bared breasts that are excised from product packaging under the watchful eye of the TTB are, by and large, most likely quite innocuous.  There’s no indication that a microbrewery in California whose labels read “try legal Weed” is going to have anywhere near the sway with children that Camel did.  (A 1991 survey showed that more 5 and 6 year olds recognized Joe Camel than Mickey Mouse or Fred Flintstone.)  Much better then, as in the Camel case, to deal with these social problems through private litigation once they actually arise than to censor businesses before their products hit the shelves.

Daniel Corbett

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My earlier post on the internet and knowledge focused primarily on the interface between technology and human understanding. In this post, I would like to address the larger question, that is, what to do about America’s “knowledge deficit.”

Most of us have, at one point or another, heard alarming statistics about the precipitous decline in the the average American’s knowledge on a variety of topics.

For instance, one in four Americans, according to the National Constitution Center, cannot name any First Amendment right, and 62 percent cannot name the three branches of government.

Before we can discuss solutions to this problem, we must first understand the root cause(s). For some, Google is the chief culprit. The idea here is that, despite the fact that technology has made our lives easier and given us greater access to knowledge, it provides a sort of “safety net” (personally, I like to refer to Google as an “external hard drive for my brain”) that allows Americans to be less informed, or at least less able to recall large amounts of information. For the reasons given in my earlier post, I think this view is largely incorrect. Instead, I think there are two stronger contributing factors, each occupying very different ends of the cultural spectrum.

First, I would argue that the “softening” of educational standards is quite obviously a strong contributing factor. By this I mean that certain educational reforms, such as deemphasizing rote memorization while emphasizing “self expression” have, quite obviously, resulted in a populace with a reduced ability to recall particular facts. (One of my favorite examples is the virtual nonexistence of sentence diagramming in public school curricula, but maybe this is just because I still carry resentment for all the sentences I diagrammed at a young age.) Ironically, in the quest to do away with “winners and losers,” America’s public schools are seemingly creating more losers.

Second, I would argue that current populist sentiments are making knowledge and intelligence less desirable. Susan Jacoby, in a recent piece for the New York Times, argues precisely this, tracing the origins of anti-intellectualism throughout history. This populist distrust of “elites” manifested itself in the recent Democratic primary, with Hillary Clinton downing shots of whiskey and discussing firearms and Barack Obama bowling a lousy 37 and lamenting the price of arugula. Clinton, trading on this fear of elitism, picked up a number of victories in big states.

I find it interesting that my first complaint is one typically raised by conservatives, while the second is mainly in the purview of liberals. I see the two as being intimately interconnected. That is, in order to erase this populist impulse that exalts simplicity over expertise and in order to address the true vexed question of our “knowledge deficit,” we need to establish some more rigorous standards in public education.

Why haven’t we done this? For their part, conservatives embrace tougher standards (perhaps even just for the sake of being “tough”), but they stop short when they feel themselves becoming too much like the “limousine liberals” they detest. And while it is liberal empathy for the underdog that keeps “softened” educational standards in place, perhaps the more telling fact is that many well-educated liberals have their children enrolled in private schools and have no qualms hiring rigorous French tutors for their six-year-olds. Now that is the kind of elitism that worries this arugula-eating mediocre bowler.

Daniel Corbett

Tim,

In general, I agree with you and Professor Kerr. There is no question that this case involves despicable conduct that should not go unpunished. It is an open question, however, as to how the law should punish this kind of conduct. I believe that the government in this case is wrong in looking to 18 U.S.C. § 1030 to ground its legal theory. As Professor Kerr notes in his post, this statutory section clearly deals with cyberfraud involving compromised information that leads to a loss of value and not the sort of harassment/cyberbulling we saw in this case. (Note the statute’s persistent reference to “information of value.”)

If § 1030 does not help the prosecution here, then where should it look? Tim, you have rightly mentioned a tort law theory known as “intentional infliction of emotional distress” (IIED). Generally, the legal standard in this area is difficult to meet; conduct that falls within the definition of IIED is that which may be characterized as “outrageous” or “beyond the bounds of human decency.” Here, the facts of the case are so damning (defendant used an online pseudonym to defraud and harass victim, telling victim at one point that the world would be better off without her) that I would think the IIED standard would be satisfied.

Given that the prosecution likely has a viable theory for IIED, how should we proceed as a policy matter? First, as the prosecution suggests, we could read into § 1030 a cause of action for cyberbullying, effectively linking up IIED claims (and likely cyberbullying that falls short of IIED) with § 1030 claims. As you and Professor Kerr have argued, this is probably the wrong path to pursue, as it would effectively re-write a statute well beyond its intended scope, potentially creating a criminal cause of action for breach of online terms of use in the context of harassment. Second, we could simply require prosecutors to rely on traditional tort law theories such as IIED. This is the simplest solution, but it may not go far enough in addressing the very real problem of cyberbullying. The Internet has facilitated the speed, geographic scope, and anonymity of all manners of transactions. The result has been both positive (commerce has expanded rapidly and knowledge has been disseminated more freely) and negative (cases such as this one are, sadly, becoming increasingly common).

Perhaps, then, new legislation is necessary to “beef up” the punishment for cyberbullying beyond what tort law already provides. This possibility is fraught with difficult questions. For instance, what, exactly should constitute cyberbullying? Would the statute contain is own definition (necessitating some very difficult line-drawing) or would it rely more heavily on common law, non-Internet-related tort concepts? What role would websites terms of service play? Finally, what are the risks and benefits with the legislative approaches taken in the United Kingdom and in Ireland?

Related question (to which Tim previously alluded): what about the integrity of the Internet in this context?

Daniel Corbett

After an interesting discussion in my Cyberspace and the Law class this morning, I would like to throw out another question with which cultural relativism must grapple: what should we do about Internet censorship?

For instance, would a cultural relativist support a group like the OpenNet Initiative, whose goal is “to identify and document Internet filtering and surveillance, and to promote and inform wider public dialogue about such practices”?

On the one hand, this goal aims to promote a more open global dialogue about the issue, something which seems to be at the core of cultural relativism. But, on the other hand, don’t we have to assume an objective ethical baseline (censorship bad) in order to achieve this global platform?  As a logical matter, some methods of filtration and blocking must be removed in order for this dialogue to even take place.  How can cultural relativism reconcile this tension?

Daniel Corbett

First, a disclaimer: I do not know nearly enough about (1) economics, particularly as applied to telecommunications markets, or (2) how the Internet works, or, put more festively, “the architecture of the Internet.” Please take my comment with a healthy grain of salt.

On the one hand, this seems very problematic. The Internet functions essentially by sending discrete packets of information anonymously over a decentralized “web” of local networks. If I’m not mistaken, Time Warner’s suggestion would seem to disrupt this model. I’ll steal an analogy I heard when NPR covered this story the other day– this seems no different than a cable company trying to refigure your bill to reflect how much TV you watch. And this seems somewhat absurd to most people.

On the other hand, isn’t this just a free market in action? And aren’t we, in fact, gaining greater efficiency by allowing people to more accurately absorb the costs of their actions, rather than displacing them across a larger population? One way of looking at this might be through a “Tragedy of the Commons” lens. Isn’t privatization the best route for us?

OK, so there’s both poles, at least as I see them. I’d love to have someone help me tidy this up a bit. Any techies and/or economists who can set me straight?

Daniel Corbett

Take a look at this article from the AP via Wired Mag.  Any strong opinions one way or another on the next step away from net neutrality?

These are the words of Walter Sobhak (played by John Goodman) in the classic Coen brothers’ film, The Big Lebowski, a film I have, for reasons obvious to those who have seen it, put on a pedestal and often over-quote. But I think they’re actually very relevant to our current discussion of cultural relativism.

As I have suggested, I believe same-sex couples who lawfully enter into a civil union or marriage in one country should have that arrangement honored by another country if they decide to move. Mr. DeHaut, in his paper, raised the question of whether we ought recognize certain rights (custody, etc.) while not recognizing others (tax privileges, etc.). And while I initially rebuffed this suggestion, I think I now see the value in this point, particularly as it relates to cultural relativism.

To wholeheartedly embrace cultural relativism, the argument goes (and let me know if I’m setting up a straw man here…), we would have to remain neutral toward many practices (e.g., female genital mutilation) we believe to be wrong on a very basic level. But, as we see in the context of same-sex marriage, we may approve of what other cultures are doing and perhaps even want to recognize some rights “created” in other nations. So the question here is where do we draw that line in the sand?

I’d like to make a distinction between affirmatively created or contractual rights on the one hand, and passively accepted rights or political rights on the other. This distinction allows us to accept as valid a same-sex marriage (or at least certain aspects of it; see this post supra) or an overseas business obligation, while at the same time denying such negative rights as the right to oppress others and such positive rights as the right to free state university education (which we may oppose for moral or efficiency reasons).

Does this distinction help? What problems– in cultural relativism or otherwise– have I left untouched?

Daniel Corbett

A very thoughtful paper, Tim.  I think it raises a number of interesting issues regarding national sovereignty, cultural relativism, and international law.  Whether these concepts can be fitted together into a clear policy solution is an open question.  That said, I have some thoughts and questions I’d like to throw out.

First, I must disclose that I have often argued against cultural relativism, but I think it is nonetheless a very useful tool for shaping policy and legal analysis.  And, personally, I think you’ve done a good job of using it here.  I’d agree that respect for the laws and cultures of different nations should lead us to honor same-sex marriages that were legally formed in another country.  I think there’s an analogy to contract law here.  For example, if you make a deal with one of your friends in Dublin, you don’t expect to somehow become exempt from the obligations arising from that deal when you move back to Pittsburgh (unless, of course, that was stipulated in the contract).  This makes intuitive sense because, in this example, nothing aside from your geographic location has changed.  I’ve yet to hear any good argument as to why this shouldn’t apply to a marriage (or civil union) contract.

Second, and where things get a bit more confusing, is toward the end of your paper, where you propose that we divvy up certain rights arising from marriage:

However, any right or obligation of marriage that can be recharacterized as a nonmarital right- such as a right to contract, or a parent-child relation, or an obligation created by judicial judgment should be recognized while rights that are not capable of being so recharacterized, such as the right to file joint state tax return, should not be recognized.

To me, this seems potentially dangerous.  How are we to determine what marital rights will be respected and what marital rights will not be respected?  Parent-child relations should most likely be preserved.  As you mentioned, “best interests” standards tend to be vague and easily manipulable.  But why the rights of a judicial judgment?  I am nothing of an international law scholar, but my gut tells me that it might be controversial to give res judicata effect to decisions of foreign courts.  And why not recognize certain tax privileges?  Granted, I can see an obvious administrative and economic deterrent to recognizing such privileges, but are these reasons good enough?  In short, where do we draw the line?

Finally, I’d like to hear some thoughts on the tension between cultural relativism and fundamental rights.  As we have seen in analyzing U.S. Supreme Court decisions, fundamental rights are often hard to define.  Is there a way that we can start defining these on a global scale?  If not, is cultural relativism our only alternative?

— Daniel Corbett  

First, I’d like to thank Mr. Corbett for the opportunity to guest blog. The following is a – rather academic (apologies) – essay on what to do about “invasions” of gay marriage into forums who have public policy against gay marriage. I do not argue for or against gay marriage (which may be an interesting discussion to have), but rather I assess how to deal with migratory marriages from countries or states that have a different world-view on the issue. I regret not developing more rigorously the idea of cultural relativism – an area that has been a long interest to me in philosophy and philosophy of science. I believe it holds the key to the area overall. By this I mean that cultural relativism is pitted against “fundamental rights” or ideas of universal human rights. Hopefully I develop these ideas soon. The issue of gay marriage may go up to the S.Ct. on a Loving v. Virginia type argument. I’m afraid the S.Ct. is not going to take a case in the near future, hence why I feel the following choice of law argument still is useful. Another interesting argument that may be had here is what the S.Ct. should do if it does take a case on gay marriage. Advocates of same-sex marriage have been arguing that same-sex marriage is legal right. Their claim rests on four legal arguments: (a.) People have a fundamental right to marry; (b.) Discrimination against gays is morally and legally equivalent to discrimination against African-Americans (c.) Denial of same-sex marriage is a form of sexual discrimination (d.) It is unconstitutional because it is just arbitrary and unfair (that was the basis of the decisions in Vermont and MA). I will not at this time make any analysis on the merits of these claims – though I would contend it would be an extremely interesting debate.  Finally, I must point out that the essay is more research than original thought; the footnotes are perhaps the most important points.

Same Sex, Different Country[i]

By: Timothy J. DeHaut

§1 Introduction

The family is quite often considered the foundational unit that makes up society.[ii] Ideals of family are strongly held throughout the world. These ideas however are not unified; different cultures hold different beliefs of marriage, divorce, and same-sex marriage. In an era of globalization, families move across national boarders. Nationals of different countries may set up the family unit in a particular country and then move to another country.[iii] Sometimes the family unit falls apart and people seek divorce; the regulations governing divorce may be different in two different nation states, both of which may have an interest in governing the people seeking the divorce. Sometimes the family units themselves, for married gays, are against the belief system of the country. “Thus, on a variety of issues, in the transitional context, the different values that define family structure within particular cultures will come into direct conflict.”[iv] There is no universal law governing the world. Moreover, with the broad cultural differences in ideals of family law, a transnational agreement is far from practically attainable.[v] Individual countries themselves are far from unified.[vi] The debate surrounding same-sex marriage and unions, in particular, is particularly vigorous with many vocal voices on either side. Should countries give any effect to same-sex partnerships or divorces within their boarders? Within the United States, are individual states obligated to give effect to same-sex partnerships or divorces granted in other states? These questions are difficult and highly emotionally laden. Luckily, “rules of private international law go a long way in respecting the competing norms that are vying in a complex global society.”[vii] Traditional choice of law analysis gives significant insights into how to deal with the novel problems of globalization and family law.

§2 Cultural Relativism and Local Cultural Respect

Like so many issues of globalization, a universal international accord unifying the law in the area would solve many of the problems; universal international consensus on some of the issues however is far from philosophically or politically possible. Moreover, even where universal international agreement has been made, cultural relativism still plays a key role in its implementation. One such instance is cross-boarder custody disputes.

Two relevant universal international agreements are relevant to the area of cross-boarder custody disputes: the Protection Convention and the Abduction Convention.[viii] Disputes over and about children are guided by these two agreements. One of the important elements to these agreements is an assessment of the “best interests” of the child when calculating whether a child should be returned to another jurisdiction after abduction by one parent. “‘Best Interests’ is an amorphous concept filtered through the customs and mores indigenous to a particular society; cultural relativism cannot be completely ignored.”[ix] One example in the convention is that a child need not be returned if there is a “grave risk” that return of the child “would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”[x] Courts inevitably apply their own concepts of physical or psychological harm to the analysis. That said, often courts can yield to other views that do not reflect their own ideals. Three examples are illustrative: In Friedrich v. Friedrich,[xi] the Court considered returning a child to his father in Germany and whether that would cause psychological harm. The Court stated, “Even if the home of Mr. Friedrich were a grim place to raise a child in comparison to the pretty, peaceful streets of Ironton, Ohio, that fact would be irrelevant to the federal court’s obligations under the Convention.” For the Friedrich Court, the question was not where the child would be happiest, but rather whether the Convention required the Court to allow for reserve that question for the Court in Germany. The Friedrich Court shows the acceptance of cultural relativism. In Hosain v. Malik,[xii] a Maryland court was asked to determine whether to enforce a Pakistani Court order that required a child to be returned to Pakistan. The mother, who had removed the child to Maryland, argued that the Pakistani Court did not apply the best interest of the child in awarding custody. The Maryland court disagreed stating that the best interests analysis must be done through the lens of Pakistani cultural and values. Among the values were the father’s right to control the child, the mother loosing her rights for being wicked and not promoting the religious interest of the child, and that the mother was overall inappropriate to bring up the child under the views of Pakistani cultural.[xiii] Here again, the Court applied cultural values different to its own in accordance to cultural relativism. Finally, in Silverman v. Silverman,[xiv] a court of appeals reversed the lower courts decision not to return a child to Israel. The court of appeals reasoned that the mother, who had removed the child to the United States, could make no particularized showing of grave risk to the children aside from the “general regional violence… that threaten[s] everyone in Israel.”[xv] The three illustrative cases above show that cultural relativism is often not ignored in regard to cross-boarder child abduction cases. The three cases, however, are not a complete description of the decisions in the area. Often, courts make decisions about individuals that they have very little connection with by relying on ideas of universal human rights. In fact, the general idea of human rights – a universalist concept – is pitted against cultural relativism. While an answer to this question is beyond the scope of this article, important insights in regard to the debate can be gleaned from an examination of another area of family law: marriage.

§3 The Precedents of Polygamy and Miscegenation

Any choice of law analysis is an interest analysis that tries to balance the legitimate interests – both territorial and personal – of different States in having their own laws applied.[xvi] The basics of the choice of law analysis can be summarized as follows: “A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.”[xvii] Since a state has the right to regulate marriage within its own boarders, no state should have to defer to another state’s marriages when its own citizens are involved. “When a state makes the social and legal decision to bestow a special status of ‘marriage’ or ‘partnership’ on a particular relationship, it is making a statement about its set of values for a particular community. A state or country makes that judgment, not for the world at large, but for a relevant community in which it has interest.”[xviii] Therefore, the public policy doctrine allows for a state to regulate its own citizens while allowing other states to regulate their citizens. The public policy exception has been invoked, historically, in two main contexts: polygamy and international marriage (or miscegenation). Importantly however, a blanket rule of nonrecognition was never fully accepted in any context.[xix] Rather, countries choose to recognize marriages for different purposes.

An English case, Baindail v. Baindail,[xx] presents an example in the context of polygamy.[xxi] An English woman, Lawson had married a British Indian man, Baindail, in England in 1939. After some time, Lawson discovered that Baindail had previously contracted a Hindu marriage in India and that he had a son in that marriage. Lawson sought to annul her marriage on the grounds of bigamy. Baindail “cited several cases that seemed to indicate that potentially polygamous marriages were not regarded as marriages at all by English law and argued that he was therefore legally a single man at the time of his English marriage.”[xxii] The first British polygamy case, Hyde v. Hyde,[xxiii] supported this position. The Baindail court did not want to legalize polygamy but it also did not want to ignore Baindail’s prior marriage in India. It wanted to recognize the marriage for limited purposes while not allowing polygamy to infiltrate its domestic law. The court was able to do this by showing that marriage created a large number of different legal rights which could be separated out – a concept familiar in the property law context. The result was Lawson’s marriage could be annulled. Other cases, such as Nachimson v. Nachimson,[xxiv] used similar mechanisms. The present English rule forbids polygamous marriages from taking place within England. People who live in England cannot contract such marriage elsewhere. But polygamous marriages are otherwise recognized by English courts today.[xxv]

A similar problem arose in the United States involving interracial marriages, or miscegenation. Southern American states, during the early and middle twentieth century, had strong public policy against miscegenation. Three classes of choice of law problems arose involving interracial marriages: First were evasion cases, where parties had traveled out of their home state for the express purpose of evading the state’s prohibition on their marriage, and thereafter immediately returned home. Courts always invalidated these marriages.[xxvi] If the state had a legitimate public policy it should not have been so easily circumvented. Second, were extraterritorial cases, where parties never lived within the state, but in which the marriage was relevant to litigation conducted there – for instance, litigation in regard to inherited property after the death of a spouse. Courts always recognized these marriages.[xxvii] Finally, were migratory cases, where parties had contracted a marriage valid where they had lived and subsequently moved to a state where interracial marriages where prohibited, though the parties never had the intention of evading the law. Courts were divided on the issue.[xxviii]

The United States was not the only country to have prohibition of interracial marriage. South Africa’s 1949 Prohibition of Mixed Marriage Act prohibited its male citizens from entering into interracial marriages in another country. Importantly, however, it did not apply to foreigners who moved to South Africa. “Like the Jim Crow [US] South, South Africa did not seek to apply its law outside its borders; the law’s preeminent object appears to have been, once more, the prevention of interracial cohabitation within the country.”[xxix], [xxx]

§4 What to do about Same-Sex Marriage

The question of gay marriage is extremely volatile throughout the world. Equally contested is the issue of recognition of other country’s marriages which are same-sex unions. While the emotion involved in this debate may seem unprecedented, throughout history there have been equally divisive. The precedents of polygamy and miscegenation provide important insights into how to deal with same-sex marriages. When and when not to recognize same-sex unions in a forum can be broken into evasive, extraterritorial, and migratory; a visitor category could also be added. A marriage is evasive only if the parties are domiciled in the state that prohibits them from marrying.[xxxi] Evasive marriage should not be recognized except in situations where there was no possibility that the marriage would continue within the state’s boarders, such as inheritance suits after a spouse has died. Similarly, in extraterritorial marriages, but the marriage is relevant to litigation conducted there, should be recognized for all purposes, regardless of the public policy of the forum state.[xxxii] Visitor marriages should also be recognized as the state has less interest in regulating people who not their own citizens; moreover, it does not affect their public policy. Migratory marriages present the most difficulty in this context as they did in the miscegenation context. However, lessons from Baindail can be helpful here: marriages can be recognized for some purposes and not for others. Individual case assessments must be made. However, any right or obligation of marriage that can be recharacterized as a nonmarital right- such as a right to contract, or a parent-child relation, or an obligation created by judicial judgment should be recognized while rights that are not capable of being so recharacterized, such as the right to file joint state tax return, should not be recognized.[xxxiii]


[i] Title adapted from Andrew Koppelman, Same Sex, Different State, New Haven: Yale University Press, 2006.

[ii] Ireland has gone as far as putting the idea of family as the basic unit of society into their Constitution. See Irish Constitution, Article 41.

[iii] Linda Silbeman and Karin Wolfe, The Importance of Private International Law for Family Issues in an Era of Globalization: Two Case Studies – International Child Abduction and Same-Sex Unions, 32 Hofstra Law Review 233, 233.

[iv] Id.

[v] Belgium, Canada, Netherlands, South Africa, and Spain allow for same sex marriage. Denmark, Sweden, Norway, Finland, Iceland, and the UK have partnerships that are nearly identical to marriage while France, Germany, Austria, Hungary, Portugal, Brazil, Croatia, New Zealand, and parts of Australia, Argentina, and Switzerland, give a limited sets of rights. See generally Koppelman, pg 57. In other areas of the world, such as Saudi Arabia, homosexual acts can be punished by death; in over 30 nations, homosexual acts can be punished by significant prison sentences.

[vi] The United States, for instance, is significantly divided on the same-sex marriage debate with Massachusetts and allowing for same sex marriage; Vermont, California, Connecticut, New Jersey, and New Hampshire have schemes that grant almost all the rights of married couples without the name of marriage. Hawaii, Maine, Washington, Oregon (2008), and DC grant partnerships that have some rights. Forty US states have statutes that bar recognition domestic partnerships and civil unions. Eighteen states have constitutional bans on same-sex unions; seven have bans on same-sex marriage. See generally Koppelman, pg 57. Lawrence v. Texas (2003) outlawed anti-homosexual sodomy laws in the United States, however, at the time about 14 states still had criminal provisions for homosexual acts.

[vii] 32 Hofstra Law Review at 272.

[viii] See Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, Oct. 19, 1996, 35 I.L.M. 1391 (1996) [abbreviated Protection Convention]; Convention on the Civil Aspects of International Child Abduction, open for signature Oct. 25, 1980, T.I.A.S. No. 11,670, 1342 U.N.T.S. 89 (entered into force Dec. 1, 1983) [abbreviated Abduction Convention].

[ix] 32 Hofstra Law Review at 237.

[x] Abduction Convention, supra note 8, art. 13(b), T.I.A.S. No. 11,670 at 9, 1343 U.N.T.S. at 100.

[xi] 78 F.3d 1060 (6th Cir. 1996).

[xii] 671 A.2d 988 (Md. Ct. Spec. App. 1996)

[xiii] See generally, 32 Hofstra Law Review at 236-37.

[xiv] 338 F.3d 886 (8th Cir. 2003).

[xv] Id. at 901.

[xvi] Koppelman, 15.

[xvii] Restatement (Second) of Conflicts of Laws, §283(2) (1971). While the Restatement is a statement of the laws in the United States domestic context, the theme of the summary is representative of the worldwide choice of law jurisprudence.

[xviii] 32 Hofstra Law Review at 247.

[xix] Koppelman, 31.

[xx] [1946] All E.R. 342, CA.

[xxi] See generally, Koppelman, 82-83.

[xxii] Id.

[xxiii] L.R. 1 P. & D. 130 (1866). The Hyde court famously defined a marriage as the voluntary union for life of one man and one woman, to the exclusion of all others. The Hyde court invalidated a Mormon marriage for the purpose of enforcing matrimonial duties.

[xxiv] [1930] 1 P. 217 (C A) (recognized a Russian marriage as valid for the purposes of divorce because the ability to get out of the marriage did not effect the English definition of marriage)

[xxv] See Koppelman, 84.

[xxvi] Id at 37.

[xxvii] Id.

[xxviii] Id.

[xxix] Id at 41.

[xxx] Today, these laws no longer stand. Anti-miscegenation laws were held invalid by the United States Supreme Court in Loving v. Virginia, 388 U.S. 1 (1967), and in South Africa in 1985.

[xxxi] See Koppelman, 106.

[xxxii] Id at 112.

[xxxiii] Id. at 112.

When we get behind the wheel, many of us feel like something of an expert.  And when it comes to the streets in our neighborhoods, we know the lay of the land, the best shortcuts to take, and perhaps most importantly, we know which stop signs we can get away with running.  So why not just turn people loose on their neighborhood streets?

That’s exactly what they’re doing in Sunriver, Oregon, according to a story in Saturday’s Seattle Times.  Residents in the community of 2,000 will no longer have to fear being stopped for “minor infractions” in the 5-square mile area that makes up Sunriver.  The roads in Sunriver are privately-owned, but are open to the public.  The Sunriver Service District has voted to limit law enforcement’s ambit to “serious traffic offenses” such as drunk driving and reckless operation.   Residents of Sunriver are now free to coast above the speed limit, breeze through the occasional stop sign, and pay no mind to the irritating flicker of that broken turn signal.

And while drivers in Sunriver celebrate this decision by perfecting their “rolling stop,” there are no doubt those who are dismayed by the situation.  After all, how does an officer know what’s “reckless” and what’s not?  Why should we allow the denizens of these private streets to so blatantly break the law?

My first inclination is to reply very simply: “why not?”   First, these are private roads, so any argument about civic obligation stemming from shared roadways is bound to fail.  Second, and perhaps more importantly, state and local bodies should always enjoy the ability to experiment.  John Stuart Mill is famous for praising “experiments in living” as a means to develop better government.  And our own federal system rests on the notion that local entities must compete with the federal government for the affections of the people.   If Sunriver wants to let its citizens run stop signs why not let them?

At this point, we might hear arguments that it’s “crazy” to let people run stop signs.  While this is an appealing common-sense argument, it is dangerous because it assumes that our traffic laws are somehow “natural.”  Traffic laws, like any other area of health and safety regulations, are simply tools that states and municipalities use to achieve certain goals.  They naturally shift according to the local context and the goals being served (compare Montana’s speed limits to Connecticut’s; California’s health care spending to Alaska’s).  For this reason, these laws are best determined at the local level and are not some sort of unimpeachable “right” that cannot be taken away by the legislative will of a particular area.  As evidenced by this new law, it looks like Sunriver’s interest in maintaining safe roads is no longer being served by nit-picky traffic rules.

Federalism means that states and municipalities have the right to set up different laws, and maybe it also means that they have the power to get rid of them altogether.  At least that’s what I’ll think until I can hear a good argument otherwise.

Daniel Corbett 

December 2017
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