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  1. Avatar Jason Kuznicki
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    This was a really great post. I enjoyed it and found it very insightful.Report

  2. Avatar gregiank
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    Somebody is going to have child custody case that relies on the Hauge Conventions due to parents in different countries and end up in a world of hurt.Report

  3. Avatar Mark Thompson
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    As I said privately, this was a fantastic post that I wish I had written.Report

  4. Avatar Mike Schilling
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    toothless shibboleth

    Even the Gileadites would have had a hard time pronouncing that.Report

  5. Avatar Rachael M.
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    Great post. The proposed Oklahoma law is one of the stupidest I’ve ever read; it will certainly have repercussions unintended by its drafters (assuming it passes and survives a constitutional challenge, which I doubt).Report

  6. Avatar sam
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    I wonder if the law contemplates suits in which the parties have agreed to arbitration in a local Sharia court? I understand that when such cases, and also cases decided under a Beth Din involving arbitration, come before a US court, the cases are treated as straight contract cases under US law. The deciding authority has to look at Sharia, or Jewish law in the event, in order to ascertain if the agreed upon rules, Sharia rules or rules of Jewish law, have been followed. Would such contract suits, involving Sharia, be disallowed in Oklahoma courts? Would contract cases involving Jewish law be allowed? (Equal protection violation right there, huh?)Report

    • Avatar Mark Thompson in reply to sam
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      @sam, I believe that’s exactly the point here – the only conceivable application of this resolution is to prevent courts from deciding contract cases based on an underlying agreement to apply sharia law in a choice of law clause. And, yeah, that’s a pretty clear equal protection violation.Report

      • Avatar Boonton in reply to Mark Thompson
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        @Mark Thompson, I wonder though if the law could even forbid that. If two parties agree to arbitration based on Sharia law then the courts aren’t upholding Sharia law but contract law.

        It seems like the law would be read to say that Sharia law can’t be used in formulating opinions in the sense of, say, “Equal Protection rules against discriminating against gays but because God says Gays are bad per the Koran we reject that ruling.” No judge, though, actually issues opinions like that and if one ever did it would be revsed in a sneeze.Report

        • Avatar Mark Thompson in reply to Boonton
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          @Boonton, I’d agree with you on this were it not for the fact that the rationale for this law (or paranoia about sharia law more generally) that I’ve seen cited always and exclusively cites to cases where the parties had agreed to use sharia law under a contract. Some of these citations are no doubt ignorant of the difference between a contractual choice of law provision and actual importation of sharia, but the primary rabble-rousers are people who know better (I’m thinking particularly of a certain contributor to NR here).Report

        • Avatar Boonton in reply to Boonton
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          @Boonton, Interestingly in the library I perused very briefly a book on Islamic finance. It seems they get around the prohibition on interest by having a bank legally own an asset and then ‘rent’ it back to the operator.

          So instead of a business loan to buy a pizza oven, the Islamic bank will buy the pizza oven and ‘rent’ it to the pizzeria owner. The owner will make rent payments to the bank and then at the end of the contract buy it. Likewise if you’re a depositor in the bank you’re kind of a shareholder in the pizza oven, which you can ‘sell back’ to the bank if you need cash. This is unlike a regular bank where you don’t really care that they have a loan on the books for a pizza oven as long as they give you your money.

          Now let’s say this is all written up in a nice legal contract but a lawsuit develops. Can the judge look at this and say “ohhh no this is motivated by Islamic law therefore this court will not entertain a lawsuit arising out of it?” But such a complicated transaction could also develop out of non-Islamic motivations. Either way you either have to read the law to mean nothing, or you have to read it to interfere in the execution of contracts which I believe the Constitution forbids.Report

        • Avatar Jaybird in reply to Boonton
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          @Boonton, this is called “Rent-to-Own” in some circles.

          Instead of “pizza oven”, think “television and leather couch” and you’ve described the business model of Rent-a-center and Aaron’s.Report

  7. Avatar sam
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    Ah, see you already addressed this. My bad.Report

  8. Avatar Hyena
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    Measure 755 is to no effect, it is null once enacted. The Supreme Court has held already that courts cannot issue opinions on religious beliefs nor arbitrate religious law. “International law” insofar as any state court would deal with it is already on an equal footing with Federal law because it consists in treaties, etc. International common law wouldn’t ever really touch a state court, since such a thing would almost certainly fall beyond its jurisdiction anyhow.Report

    • Avatar Transplanted Lawyer in reply to Hyena
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      @Hyena, it comes up often enough. The Hague Convention comes immediately to mind as a place where state law intersects with international law — that’s how you serve process on an international defendant.Report

      • Avatar Hyena in reply to Transplanted Lawyer
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        TL,

        Implicit in my comment is a clear criterion for counterexamples: it cannot consist of a treaty because that already has supremacy in law. The Hague Service Convention is just such a treaty, we ratified it on 24 AUG 1967. SCOTUS addressed the issue in Schlunk (1988), making use of the Hague process mandatory.

        There is no sense in which this component of international law is not also Federal law, therefore Measure 755 would have no impact and your counterexample falls outside the criteria implicit in my comment.

        If you can name a point of international law which is not also a point of treaty already ratified and therefore already possessed of supremacy over state law, that would qualify.Report

        • Avatar Transplanted Lawyer in reply to Hyena
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          @Hyena, obviously a court should honor the Hague Convention under Article VI, and no sane person who has thought the issue even part-way through would suggest otherwise.

          But I see no evidence that such a person wrote Measure 755. As described, the ballot measure “forbids courts from considering or using international law. … Sources of international law also include international agreements, as well as treaties.” This purports to instruct courts to disregard all treaties, whether ratified by the Senate or not. If the initiative contains language that exempts ratified treaties from its prohibition on what a court can or cannot consider, Oklahoma’s voters have not been told of it.Report

  9. Avatar RTod
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    I feel like I’m stating the obvious here, but I don’t think laws like this are being proposed because there is a threat perceived by those pushing the legislation. It’s being used as a tool to rally the troops, and set up political opponents so that they appear to be choosing to traitorously sacrificing American values and citizens for their Muslim benefactors.

    Not that the points you bring up aren’t 100% accurate, well thought out and persuasive – they just don’t speak to the actual issue at hand.Report

  10. Avatar Kyle Cupp
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    When a Congressional candidate from a major party says that he will propose an amendment to the Constitution to guide courts to rely upon Sharia, I’ll worry about this.

    I wouldn’t worry about it even then.

    Good post.Report

    • Avatar Good Grief, The Comedian's Incompetent in reply to Kyle Cupp
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      @Kyle Cupp, Look no further than Keith Ellison aka “Keith Muhammad” aka “Keith E. Hakim” – funded by Hamas and Muslim Brotherhood front groups, dragged in every year for campaign finance violations.

      This is the asshole who insisted on being sworn in on Thomas Jefferson’s copy of the unholy Quran – a copy Jefferson only owned because he wanted to find out who the rat bastards from Tripoli were who were hanging our sailors upside down and telling them to convert to the pedofaith or drown!Report

  11. Avatar Good Grief, The Comedian's Incompetent
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    What a ridiculous column. It’s poorly written, even more obviously uninformed, and makes a mockery of this otherwise respectable site.

    They have been pulling this stuff for years.

    “Shari’a compliant banking” scams and terrorist money laundering schemes are popping up all over the place.

    And of course there’s the crap going on like this in Canada too, including ridiculous attacks where the “Canadian Human Rights Commission” has brought people up on charges merely for exercising their Canadian free speech rights to criticize Islam.

    Who let this guy post this uninformed drivel here anyways?Report

    • @Good Grief, The Comedian’s Incompetent, Speaking as a Canadian resident, the HRCs invite abuse simply because they allow anyone to charge anyone else with hate speech, and then require the person charged to pay their own legal fees and appear before the commission, while allowing the person who made the charge to skip out on the proceedings altogether. Moreover, an Ottawa judge has recently declared them an unconstitutional violation of free speech rights, which if it’s upheld will render much of what they do in terms of prosecuting “hate speech” null and void. But the fact that some of the people who have abused the system are Muslims isn’t the problem with the system- it’s that the system- a product of Canadian secular government!- is deeply flawed from the start.Report

  12. Avatar Good Grief, The Comedian's Incompetent
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    Oh, whooooo, so I’m “moderated.”

    Can’t handle an honest debate can you? I bet you love the idea of little “shadow enclaves” of religious nutjobs who aren’t subject to US law.

    Maybe you should go live with the FLDS. You’d fit right in with them. After all, their model is just what these Islamist Enclaves are following.Report

  13. Avatar Good Grief, The Comedian's Incompetent
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    What a ridiculous column. It’s poorly written, even more obviously uninformed, and makes a mockery of this otherwise respectable site.

    They have been pulling this stuff for years.

    “Shari’a compliant banking” scams and terrorist money laundering schemes are popping up all over the place.

    And of course there’s the #### going on like this in Canada too, including ridiculous attacks where the “Canadian Human Rights Commission” has brought people up on charges merely for exercising their Canadian free speech rights to criticize Islam.

    Who let this guy post this uninformed drivel here anyways?Report

  14. Avatar Rufus F.
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    Can anyone actually define what “Sharia law” prohibits and sanctions? I mean, it’s easy to do that with “Jewish law” because the Torah lays out the “thou shalt nots” very clearly. We can agree or disagree with them- I’m a big advocate of the rule against eating owls- but it’s clear what the rules are for Jews.

    With “Sharia law” I hear people say that, if you read the Koran and hadith, you can sort of intuit the laws. But I have read them and I’m not there yet. The Koran is entirely too vague and poetic for me to do that- it’s also, incidentally, probably too dour for me to ever be a Muslim. My understanding, though, is that not even Islamic scholars are decided on what Sharia law would consist of. And, frankly, as far as I can tell, the opponents of Sharia law have no idea what it would consist of either. So, it seems to me that a major roadblock to instituting Sharia law would be figuring out what it actually is.Report

    • Avatar Transplanted Lawyer in reply to Rufus F.
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      @Rufus F., as I understand it, Sharia is not unlike Talmud in that respect — scholars whose writings gain the respect of a broad category of their colleagues have their writings are assembled into various versions of Sharia, and then scholars, imams, and others who are called upon to apply Sharia to particular situations will research the version of these writings they find authoritative to determine subtleties and principles within that body of work, possibly contributing to it along the way with their own scholarship.

      The “pizza oven” example is an interesting one — what if that “rent-to-own” arrangement (as opposed to an interest-bearing collateralized loan, which would be more familiar to us in the US) were done between a secular bank and a non-Muslim customer? Would that be excluded from judicial enforcement because it looks like a Sharia-style quasi-loan transaction? How is a judge in Oklahoma, who we may safely presume is not a Muslim or a scholar of Islam herself, supposed to identify the Sharianic attributes of this transaction?

      All more good reasons why a proposal like Measure 755 is impractical, unenforceable, and pernicious.Report

      • Avatar Jaybird in reply to Transplanted Lawyer
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        @Transplanted Lawyer, another thing to look at might be the “seriously, not a mortgage” lease options that Muslims get for house/condo purchases in the US.Report

      • Avatar Good Grief, The Comedian's Incompetent in reply to Transplanted Lawyer
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        @Transplanted Lawyer, the financials are the least of the worry.

        The larger worry are separated religious courts in countries like Britain and Canada (but which have been proven to be administered in an “ad hoc”, underground way in the US by both the FLDS and Muslim enclaves and are being “requested” more and more by fundamentalist Islamists to be codified as “official”) wherein rape victims and spousal abuse victims are forced to give up their normal legal rights to be subjected to their religion’s misogynistic behavior instead. Similarly, Shari’a “divorces”, where the man can simply kick the woman out on her ear, are becoming done by Islamist preachers who set themselves up as “binding arbitrators.”

        What Oklahoma doesn’t want, and are acting to codify into law BEFORE it comes to be a problem, is things like this.Report

        • @Good Grief, The Comedian’s Incompetent, An ‘underground’ court would by definition not be impacted by this law just as your own private system of currency wouldn’t be touched by the decisions of the Federal Reserve.

          The courts do not recognize the judicial decisions of ‘underground courts’. They do recognize the right to contract and if two people contract to use an arbitrator (whether a secular one or one who promises to apply ‘Islamic’ principles), that is what the courts rule on.

          Alternative court systems are not that unusual. Sports has plenty of them, the Catholic Church has a judicial system where one can sue for, or challenge anullments, excommunications etc. The OK law cannot touch any of them except to the point that they intercept the ‘actual’ court system.Report

        • @GGTCI, thank you for articulating your concern in a substantive way. That’s the kind of comment I suspect that the Ordinaries have been looking for from you, and it is worthy of a response.

          What you call an “underground” court is treated by the official judicial system now as “private arbitration.” You may find it ironic that the law encourages private arbitration of disputes for the officially-stated reasons of “reducing frivolous lawsuits,” to keeping fees away from “greedy trial lawyers” and to “keep insurance premiums low.” That’s likely why a lot of doctors make their patients sign mandatory arbitration agreements before they will treat them — they fear that a lawsuit in regular court is too time-consuming, too expensive, and will produce a result they dislike too much, so they opt out of the regular court system and in to a private one. This may seem legitimate at first glance, and upon reflection, it is. The reflection should bring with it an understanding that if doctors can do opt out of the regular judicial system for economic reasons, then religious people can do it for religious reasons, too.

          The point is, it takes opting out. No one forces you to sign the arbitration agreement with your doctor; you can go seek medical care from someone else who does not require arbitration. So too does no one force anyone else to comply with Sharia law or submit their dispute to an imam instead of a regular judge and jury. You have to choose to do that.

          If you don’t want to be bound by Sharia law, don’t sign an arbitration agreement that contains a choice-of-Sharia-law clause. Simple as that.

          If you’re worried about Muslims becoming a majority and taking control of governmental institutions and then using that power to import principles of Sharia law into the general law, then I suggest that you should work now to prevent Christians, who are presently the majority in most places, from doing the same sorts of things, and to make clear that in this country, the government is a secular institution. If it is a clear principle of Constitutional law that there cannot be Christian prayers in high schools, then if the day ever comes that Muslims take over an area and want to have Muslim prayers in high schools, the law will be clear — there can be no prayers in the high schools. If government is kept secular, which is entirely congruent with the Framers’ original intent for the government, then you’ve no reason to fear that Tulsa will become Molenbeek (although the article you linked made Molenbeek sound not so different from any other cultural-ethnic urban enclave during a religious holy period, like Little Italy on Easter in New York or Los Angeles’ Fairfax neighborhood on Yom Kippur).

          I appreciate the thoughtful and sober criticism of your comment above and I encourage more of it.Report

        • Avatar Good Grief, The Comedian's Incompetent in reply to Good Grief, The Comedian's Incompetent
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          @Transplanted Lawyer,

          “If you don’t want to be bound by Sharia law, don’t sign an arbitration agreement that contains a choice-of-Sharia-law clause. Simple as that.”

          In these Muslim-specific enclaves, not nearly so simple, just as it is incredibly difficult for those women who try to escape the tyranny of the FLDS enclaves. In both societies, women are taught that they have no rights, and actively kept from learning that they have any ability to refuse to enter the sorts of “arbitration agreements” being pushed.

          “The point is, it takes opting out. No one forces you to sign the arbitration agreement with your doctor; you can go seek medical care from someone else who does not require arbitration.”

          Just like credit card terms and other setups, this is a bald-faced lie the moment one cannot find a provider who does NOT insert the “binding arbitration” clause into any contract they issue.

          Arbitration-clause abuse is at collusion levels in far too many industries today. Medical is only one of them.Report

        • @Good Grief, The Comedian’s Incompetent, The solution to that is already on the books. Contracts that a person agrees do under threat or duress are considered null by the courts, whether or not they are based on Islamic principles.Report

          • Avatar Good Grief, The Comedian's Incompetent in reply to Boonton
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            @Boonton,

            And just how, pray tell, do you suppose to inform the same women who will be forced into these theocratic courts that said court is “invalid” if they are coerced?

            If they are being coerced, such coercion will be exerted on them – exile from family, children stripped away, physical or mental abuse, and worse.

            It doesn’t matter that they have the “right” to protest it. The theocratic enclaves do their best to ensure that the woman does not even know of said right, much less have the mental strength to abandon everything from her life in order to assert it!Report

            • @Good Grief, The Comedian’s Incompetent, That’s a moot point. You are talking about how courts recognize such contracts. By definition then you’re talking about a case that has made it to civil court which means that people feel enough freedom to publically disagree and take their case to a public court. In that case one side is probably suing for breach of contract and the standard response from the other side is to either argue that the contract wasn’t breached or that the contract is invalid. Coercion would always invalidate a contract.

              I don’t see how this proposal would work any better. It sounds like your ‘solution’ is to assume all ‘Islamic inspired’ contracts are autoamtically coerced which is simply not true.Report

    • Avatar Boonton in reply to Rufus F.
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      @Rufus F., Can anyone actually define what “Sharia law” prohibits and sanctions?

      Very interestingly I can almost guarantee you 100% that the people who wrote this proposed bill cannot define what they are talking about. This is a curious, ironic aspect of ‘wedge issues’ that seems to afflict the right most of all, the people who seem to care most about them seem to make it a point to know the least. For example, most of the hysterical dingbats over the Park51 project cleary had no idea that the project was not ‘at Ground Zero’ nor even in the ‘shadow of Ground Zero’. Ground zero is so sacred for them that they can’t even be bothered to locate it on a map. Likewise we had people who were going hysterical over ‘czars’ (‘car czar’, ‘drug czar’, ‘bank czar’ etc). All these ‘czars’ clearly meant a collapse of freedom. This is so important to them, though, that they never even bother to learn that there actually is not a single position that’s really called ‘czar’. All the ‘czar’ positions are just journalistic shorthand that stuck in the conversation since it seems to imply someone with absolute responsibility and absolute command of a problem. We got it with ‘anchor babies’. People who are a lot about immigration yet remain ignorant of the fact that ‘anchor babies’ is not a plausible strategy for illegal immigrations to escape deportation.

      We see that here with the ‘international law’ aspect of the proposal. There is a debate on the right over using foreign court decisions in cases either to support a line of reasoning or to determine where various subjective standards lay (‘cruel’ punishments for example). Yet you can bet that the writers of this law are totally igorant of that debate and have crafted a proposal that totally misses the point. Their ‘international law’ exists in their imaginations where supposedly the UN, or the Trilaterial commission, or the EU is setting the speed limit on Main Street at 35 mph.

      This is probably the key definition of a wedge issue, it’s a real world solution to problems that exist in the imagination.Report

      • Avatar Good Grief, The Comedian's Incompetent in reply to Boonton
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        @Boonton,

        “People who are a lot about immigration yet remain ignorant of the fact that ‘anchor babies’ is not a plausible strategy for illegal immigrations to escape deportation.”

        Over 80% of the maternity ward births where I work are to illegal mothers. Not a damn one of them EVER pays their bill; most give a fake name and home address.

        I call you a liar because I see this firsthand. They demand (in spanish) to have the birth certificate before they leave the hospital, and woe to the person who doesn’t hand it right to them – that’s their meal ticket to mooch off our system for the rest of their life!

        When I signed my kids up for school, I had to bring a mound of paperwork two folders thick. I asked the lady how the hell the illegals were getting in paperless and was told “we can’t turn them away.” I asked what would happen if I simply sent my kids and refused to give them my paperwork, and she said they’d have the sheriffs out and I’d be fined and possibly imprisoned.

        FUCK. THE. ILLEGALS. I want my damn country back.Report

        • Avatar ThatPirateGuy in reply to Good Grief, The Comedian's Incompetent
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          @Good Grief, The Comedian’s Incompetent,

          Those evil mothers wanting the best for their children and getting upset when people don’t do their jobs and hand over vital paper-work.

          And can you imagine the evil heart it must take to be a person scared of getting deported while not having health insurance to pay for you child’s delivery to be someone who gives fake information? The monsters!

          Wow, I can’t believe that the government would educate those children, it would be far better to keep the clearly not human people ignorant and uneducated(how else will they assimilate with real Americans).

          I wonder why these monsters operate this way, it certainly couldn’t be because they are afraid some jerk is going to try to screw them over out of racist rage. Nope it must be that they are evil thieves.Report

        • Avatar Good Grief, The Comedian's Incompetent in reply to Good Grief, The Comedian's Incompetent
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          @ThatPirateGuy,

          “Those evil mothers” have caused one other hospital in my area to shutter its maternity ward, and another to shut down all operations completely.

          “Those evil mothers” have caused our local school system to descend into madness wherein the most major portion of our funding goes to waste on trying to re-educate and teach remedial courses to kids who speak no english and have zero skills in learning; meanwhile, our own kids are left to suffer and stagnate thanks to “no child left behind”, also known as “every class moves at the pace of the slow illegal retards.”

          Coming here illegally is theft. In the numbers they have been doing it, it is simply not sustainable for us to put up with. Enough is enough.

          My sympathy evaporated years ago, because of ridiculous people like you who have sympathy for criminals while ignoring the people who really deserve your sympathy – the law-abiding people who these thieves have injured!Report

  15. Avatar Congratulations, you are accomplished at deflection but incompetent at discussion.
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    And, apparently, one of you lying sad-sacks tagged my chosen name for “automatic” moderation.

    You are cowards. Unadulterated, sniveling, worthless cowards.Report

  16. Avatar Robert Cheeks
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    My guess is he’s a Democrat?Report

  17. Avatar Transplanted Lawyer
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    BTW, I’ve posted a follow-up on this issue at my own blog after coming across a bit of old research for a continuing legal education class I taught on this subject about a year ago.Report

    • Avatar Boonton in reply to Transplanted Lawyer
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      @Transplanted Lawyer, A good piece, it’s clear those supporting the law don’t have a clue and are just grasping for straws when they are asked for real examples.

      The interesting takeaway IMO is that like the schools, gov’t does not actually have a monopoly on judicial systems. Outside of actual gov’t courts there are judicial courts that have a long history. Calling them ‘underground’ is a bit deceptive since most are quite open. Calling them an ‘alternative’ system doesn’t quite fit the bill either since many are not meant to compete with civil or criminal courts but to address disputes that those courts do not (religious obligations, how sports leagues conduct themselves, etc.). Perhaps the best way to describe them as complimentary judicial systems.Report

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