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Sharia! Men Oppressing Women! American Courts and Foreign Law!

How come there aren't more comments on the Maryland court decision that refuses to recognize a Pakistani (Islamic law) divorce? What, not enough sex? Not enough politics? Not enough prosecutorial misconduct?

OrinKerr:
Those damn Islamofascists.
5.7.2008 8:38pm
OrinKerr:
Those damn Islamofascists.

What?!?!?!?!? You conservatives are nutty wingbat kooks!@!!
5.7.2008 8:39pm
OrinKerr:
What?!?!?!?!? You conservatives are nutty wingbat kooks!@!!

Oh, plleeeeaaaazzzzeeee. Just like a lefty pinko commie. Why don't you go back to Bezerkley where you belong???

[Eugene, I'm just trying to get the thread started for you. -- Orin]
5.7.2008 8:40pm
Eugene Volokh (www):
Yeah, that's more like it!
5.7.2008 8:40pm
Wahoowa:
I think for a while the comments weren't working right on that post. They appear fine now, though.
5.7.2008 8:44pm
R Gould-Saltman (mail):
Just not all that interesting.
Heck, for purposes of the VC, I'm a would-be left-coast, radic-lib trouble-maker (heard it here first, folks...) AND a family law lawyer, interested in First Amendment/family law cross-over issues, and even I didn't think it was all that interesting, particularly because the opinion pretty clearly says this isn't really about sharia law as religious law, but as civil law of another jurisdiction.


Doc, you want to womp up some controversy, you're gonna have to try harder. . .


richard gould-saltman
5.7.2008 8:46pm
Dave2L (mail) (www):
Corporations final on Saturday.
5.7.2008 8:48pm
elim:
it's a no brainer that we shouldn't accept the divorce law of a backward country/religion?
5.7.2008 9:02pm
Craig Oren (mail):
Well, let me jump in. In any instance in which a court is asked to apply religious law or a law of a jurisdiction, the request is being made because that law is different from the forum's law. But at some point the difference is so great than the forum refuses to accept the other law because it is "against public policy." How much does the difference have to be for the other law to be against the public policy of the forum? It can't be the case that any difference is against public policy, for in that case the court would never apply non-forum law. So where do we draw the line? Is it "shock the conscience of the court" or (to quote Justice Scalia) the "old totality of the circumstances test?"
5.7.2008 9:24pm
Pyrrhus (mail) (www):
Im sure you could get an easy 200 comments or so with a post about Wright. Those posts have sort of killed my attention span otherwise though.
5.7.2008 9:48pm
Pyrrhus (mail) (www):
Im sure you could get an easy 200 comments or so with a post about Wright. Those posts have sort of killed my attention span otherwise though.
5.7.2008 9:48pm
ithaqua (mail):
Prof. Volokh, I do believe you're trolling your own blog :)
5.7.2008 9:49pm
Fearless:
For what it is worth, I do not agree that it is paternalistic to not enforce one-sided prenuptial agreements.

But even if it were paternalistic, I do not think that the word "paternalistic" is the argument ending trump card that some libertarians think it is. Why do some people think they can decisively "win" a discussion about a policy merely by superficially labeling something paternalistic.

Marriage is much more than a mere contract.

In life, sometimes we are better off with fewer choices. Especially in the real world, where people will apply social pressure that is difficult for some people to resist in order for them to make choices.

When it comes to making choices, I think we should ask more than whether someone did X. We should ask, given the social context, whether X was what that person really wanted.

That does not mean that we do not hold people responsible for their choices in particular contexts when that makes sense. But, it does mean that we take into consideration what someone really wants more often. In some sense, being overly formalistic can actually result in less stability and predictability.

In life, we cannot just choose anything. It makes sense to think about how choices are structured. It also makes sense to think about what freedom really means. I submit that freedom means more than just doing whatever the hell you feel like.
5.7.2008 9:51pm
UW2L:
Cats and dogs! Living together! Mass hysteria!

Orin: The same Berzerkeley that gave us John Yoo?
5.7.2008 9:51pm
Fearless:

Im sure you could get an easy 200 comments or so with a post about Wright. Those posts have sort of killed my attention span otherwise though.


This is a true story.

Republicans know they cannot win policy debates. That is why in every election they dredge up things like the "Swift Boat Veterans for Truth" or "Willie Horton" or Reverend Wright. Basically, Republicans will do almost anything to avoid an election based on policy differences.

What does a Republican want to talk about if you mention Obama.
1.) Reverend Wright
2.) Bill Ayers
3.) Not Wearing a Flag Pin
4.) The Bitter Comment
5.) Etc. Etc.
6.) Basically, anything nonsubstantive will do.

Why?

Because Republicans can't win elections on the merits of their policies. All they can do to win by throwing mud and hoping enough sticks. Hence their fascination with Revered Wright.

Losers.
5.7.2008 9:56pm
Gary Anderson (mail):
Eh, I'd chalk it up to Springtime, EV. Much of the country is coming out of a rough winter, and these early days of greening are truly precious.

Toss in the midweek catching-ups, the family activities looking toward the weekend, and the late nights some may have had following the election results... maybe just not a lot of folks commenting online right now.
5.7.2008 9:59pm
Oren:
Orin: The same Berzerkeley that gave us John Yoo?
Yup, that's the one!

Personally, I have finals to grade, homework to grade, a presentation to prepare, a paper to submit and a new project to start. If I was serious about any of them, I'd add volokh.com to my router's block list.
5.7.2008 10:02pm
ithaqua (mail):
"What does a Republican want to talk about if you mention Obama.
1.) Reverend Wright
2.) Bill Ayers
3.) Not Wearing a Flag Pin
4.) The Bitter Comment
5.) Etc. Etc.
6.) Basically, anything nonsubstantive will do."

Typical liberal. As much as you hate to admit it, guys, character matters. Hitler rebuilt Germany's economy after the Weimar-era Depression, after all; why isn't he being cited as a model in this so-called 'recession'? Hussein's decades' worth of association with racists and terrorists, elitism, anti-Americanism, his disassociation with genuine (God, gays and guns) Americans... these are important issues, and speak directly to his judgment and his likely performance as President.

Besides, what does a Democrat want to talk about? "Barack Obama is the kindest, warmest, bravest, most wonderful human being I've ever known in my life." How very substantive :)
5.7.2008 10:14pm
Casper:
It seems EV's favorite thing about his blog is the completely nutty far-right commenters. How disappointing for him when they do not go into overdrive immediately. Makes the "Important Note to Helpful Readers," on the comment page, seem less than completely important.
5.7.2008 10:20pm
A. Zarkov (mail):
Deport them both and let Pakistan handle the matter.
5.7.2008 10:27pm
Oren:
casper, the key is not to get worked up about it. Practically no one on the blog agrees with me (RB on the presumption of liberty, EV on 1st amendment law, nobody on the gays, everyone except JF Thomas on guns) and yet for some strange reason I enjoy it.

Besides, what does a Democrat want to talk about?
Check the exit polls:
(1) Economy
(2) Iraq
(3) Health Care
.....
(3453) Middle Names
(3454) Flag Pins
5.7.2008 10:33pm
Anon Y. Mous:

How come there aren't more comments on the Maryland court decision that refuses to recognize a Pakistani (Islamic law) divorce?

Hey, if we can't tell you what to blog about, you can't tell us what to comment about. Pththth!
5.7.2008 10:33pm
Shadow:
Are you sure it's not a hoax, like that regrown finger thing?
5.7.2008 10:35pm
Oren:
Deport them both and let Pakistan handle the matter.
Because raising issues in a court is now a deportable crime? Clearly they are here legally.
5.7.2008 10:36pm
A. Zarkov (mail):
"Basically, anything nonsubstantive will do.."

I agree let's talk substantive. Let's find out his policy positions in specific terms instead of vague ideas like "change." Let's talk about the contradictions in his substantive policy positions. For a start:

1. Support of a 80% reduction in carbon emissions, but a yes vote on an amnesty bill that would add more than 100 million to the population of the US, greatly increasing energy consumption.

2. Support for H1-B program which lowers middle class salaries while saying he's out to help the middle class.

3. Universal health insurance that includes illegal aliens without telling us where all that money is coming from.

4. Infinite ceiling on FICA income while saying he won't raise taxes on the middle class.

The whole BHO campaign is riddled with contradictions at the substantive policy level. All we get from him are happy talk slogans. To be fair the other candidates are not much better along these lines. But he's hardly breath of fresh air.
5.7.2008 10:37pm
Eugene Volokh (www):
Anon Y. Mous: Good point.

Casper: The post wasn't exactly serious. And my favorite commenters are definitely the non-nutty ones.
5.7.2008 10:42pm
OrinKerr:
It seems EV's favorite thing about his blog is the completely nutty far-right commenters. How disappointing for him when they do not go into overdrive immediately.

I alawys thought Eugene's favorite thing about the blog is the commenters who chime in just to speculate about the motives behind various posts.
5.7.2008 10:45pm
PatHMV (mail) (www):
Kudos to the law clerk who found the unpublished 1815 court opinion (see footnote 9).

Footnote 14 shows that basically the husband was trying to have it both ways: continue living in this country and enjoying access to our courts, while circumventing our laws by using the Pakistani divorce process. If he really wanted to keep his pension, he could have just moved back to Pakistan and had the World Bank move his pension to that country. The fact that he didn't tells me he'd rather lose $1 million than go back to live in Pakistan.
5.7.2008 10:54pm
A. Zarkov (mail):
"Because raising issues in a court is now a deportable crime? Clearly they are here legally."

I guess you didn't see my tongue firmly planted in my cheek.

Of course you assume that they're here legally. Incidentally why do you think a person must commit a crime to be deported? How about being just generally undesirable?
5.7.2008 11:08pm
Oren:
Zarkov, undesirability seems like a fine criterion for denying citizenship or permanent resident status but I think I'd reserve deportation for those duly convicted of non-trivial crimes.
5.7.2008 11:09pm
GV:
Does this site intend to do anything about the numerous far right-wing commentators (likely spoofs) who spam every single thread with nonsense about Barrack HUSSEIN Obama or whatever juvenile talking point they think would be funny to repeat? They make inflammatory comments. People are baited into responding. And anything interesting that might have evolved from the discussion is quickly squelched.

The signal to noise ratio has changed dramatically ever since many of the conspirators started to post things about the election. I know this is your blog and you can do what you please. But I suspect if you keep posting about politics and do nothing to moderate many of the spoof comments, you're going to find that people who would have normally made substantive comments have migrated to other blogs.

Frankly, if I wanted to read conservative political commentary on whether Obama is more anti-American because of his pastor or because of his association with Ayer, I'd go to redstate. If this blog continues to resemble redstate, I'd prefer to skip it entirely. Again, obviously, nothing is forcing me to read this blog or post here, so I can obviously vote with my feet -- or my mouse, as the case may be. But to the extent that you're interested in at least one loyal reader's views (who does occasionally veer off into making inappropriate comments), there they are. I'd like to keep reading this blog because its legal commentary is great. I just wish there was more legal commentary and less political crap.
5.7.2008 11:17pm
Vermando (mail) (www):
I'm also still trying to figure out what we are supposed to have found so compelling about the case. As noticed, the guy did several things that give him real problems, like wanting to stay in the country. I also think that his "I'll just go to my embassy &get it done there" way of getting around Maryland's substantive law is, while clever, not something that a court is going to find really compelling. I would be curious to know if there are any other instances where it is seen as legitimate to use your embassy as a place where you can get access to your country's laws without having to travel back there and while remaining a resident of the host country. Perhaps something from admiralty with the validity of certain types of contracts?

On the far more blood-stirring comments, I would just seek one piece of commentary from Ithaqa. When you said:
"As much as you hate to admit it, guys, character matters. Hitler rebuilt Germany's economy after the Weimar-era Depression, after all..."
Are you implying that, on the whole, Hitler's regime was substantively positive, and that the only flaws they had had to do with his character flaws? I would think that some other mistakes he made - you know, World War II, getting their butts firebombed, the whole Holocaust thing - would outweigh the positives, such as founding Volkswagen or getting inflation under control.

Likewise, while his poor relationship with various other people could have been one way to predict that he wouldn't do a great job, you also could have predicted it by, oh, reading his manifesto, or listening to his speeches, or really doing anything other than looking at, say, his paintings from his youth and trying to discern what, despite his clear public pronouncements, were his "true" plans.

Which I think is the point of the supporters of Senator Obama above - to the extent that the character issues are used as a distraction from someone who would would substantively do a great job, they can be of questionable value. I don't think that Hitler's record as Chancellor - ending as it did with various types of moral tragedy, a wrecked economy, and the country divided and under military occupation - is the best counter-factual to offer to this. Bill Clinton, perhaps, could be a good example of someone whose personal failings led to problems for his presidency. Or, various past governors of my great home state of Louisiana whose "character" could be described as "corrupt" could also apply, but Hitler...yeah, I think that, on the substance, he was a bad dude, and you don't need some view of 'hidden character as the driver of leadership' to explain what went wrong there.
5.7.2008 11:17pm
another anon:
You want a comment clusterf*ck? Post more gossip about BigLaw firing recently un-pregnant associates, as Lat does. =P
5.7.2008 11:37pm
Katl L (mail):
Countries that signed tha american convention on international private law, Bustamante Code , are allowed to refuse recognition of marriages and contracts tha violates "public order",then core values of a law order, every country in Latinamerica has provision in that sense
5.7.2008 11:50pm
Dave Hardy (mail) (www):
If Allah had willed it, there would have been more comments.
5.7.2008 11:56pm
Dave Hardy (mail) (www):
"Frankly, if I wanted to read conservative political commentary on whether Obama is more anti-American because of his pastor or because of his association with Ayer, I'd go to redstate."

I prefer Redstate Update, which has truly insightful commentary.
5.7.2008 11:57pm
wuzzagrunt (mail):
GV wrote:

Does this site intend to do anything about the numerous far right-wing commentators (likely spoofs) who spam every single thread with nonsense about Barrack HUSSEIN Obama or whatever juvenile talking point they think would be funny to repeat? They make inflammatory comments. People are baited into responding. And anything interesting that might have evolved from the discussion is quickly squelched.

I find your comments completely inappropriate for a libertarian blog.
5.8.2008 12:26am
alias:
It's late on a weekday, and when you post about a case, we commenters feel obligated to read the entire opinion carefully and think about the matter a bit before commenting. You're asking us to jump the gun.
5.8.2008 12:29am
Oren:
I find your comments completely inappropriate for a libertarian blog.
Stop suppressing his speech!
5.8.2008 12:29am
Fub:
OrinKerr wrote at 5.7.2008 9:45pm:
I alawys thought Eugene's favorite thing about the blog is the commenters who chime in just to speculate about the motives behind various posts.
I think you're just saying that because you want to start some... oh, uh, never mind.
5.8.2008 12:43am
Oren:
No, Fub, continue, please!
5.8.2008 12:46am
kimsch (mail) (www):
Obama surrogate on McCain's SCOTUS choices...

Barack Obama has always believed that our court should stand up for social and economic justice, and what's truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves.

Now, IANAL, but I would think that a lawyer - and one who taught Constitutional Law - would know that judges interpret law, not "stand up for social and economic justice". That's for the legislatures, of which Obama has been a member of two.
5.8.2008 1:12am
Oren:
Obama was also Constitutional Law Prof (Assistant Prof? Guest Lecturer? -- he held the same titles that Judge Posner does).
5.8.2008 1:13am
kimsch (mail) (www):
On the Maryland ruling. Good for them. Hubby wanted to get out of sharing with his ex by doing the old I divorce you, I divorce you, I divorce you.... Three times may make it true, but not legal in the state of Maryland, and hopefully, not legal in any state in these United States.
5.8.2008 1:14am
pmorem (mail):
Republicans know they cannot win policy debates. That is why in every election they dredge up things like the "Swift Boat Veterans for Truth" or "Willie Horton" or Reverend Wright. Basically, Republicans will do almost anything to avoid an election based on policy differences.

1) "Policy" always involves "Doing something". Governments are only really good at blowing things up. Anything else is going to be some approximation of blowing things up. See reference DoD, NASA, "no knock raids", Texas Polygamy, ......

2) It doesn't matter how perfect someone's words are if they're a pathological liar.

3) A lot of the President's job is selecting advisors and delegating authority. If someone can't judge whether or not a person is decent, that's pretty crippling.

Call me racist if you want, but I really don't think this country is ready to be led by someone who believes or pretends that he is a purple dinosaur.
5.8.2008 1:17am
Josh644:
Why aren't there more comments? Maybe because the decision was obvious and totally uncontroversial. I'm at a loss here. Maybe you think a lot of theocrats read this blog?
5.8.2008 1:51am
BGates:
Obama was also Constitutional Law Prof (Assistant Prof? Guest Lecturer? -- he held the same titles that Judge Posner does).
Like 'Judge'?
5.8.2008 3:20am
Oren:
BGates, sorry I wasn't pedantically clear.

Obama held the same position at the University of Chicago that Judge Posner does.
5.8.2008 4:10am
Oren:
I really don't think this country is ready to be led by someone who believes or pretends that he is a purple dinosaur.
As opposed to someone that carries: a lucky quarter, a lucky nickel, lucky penny, lucky rabbit's foot, a lucky feather, lucky 4-leaf clover and has his wife wear purple, his lucky color?

Seriously, where do we get these candidates?
5.8.2008 4:16am
Warmongering Lunatic:
You're right. Republicans can't win on policy issues. Because the media will not sustain conversation on substantive policy issues like Obama's statement that he was willing to invade a nuclear-armed long-time U.S. ally. A statement that showed that Obama has the strategic sense and foreign policy wisdom of a decapitated chicken.

Seriously, the fact that Obama's still considered a viable candidate for President is one of the most embarrassing things about the United States today. It's on a level with the fact that the only President to almost accidentally annihilate the United States became so revered that his brother won a seat in the Senate despite killing a woman.
5.8.2008 6:15am
b.:
so many wasted words and still no discussion of the court's refusal to apply renvoi in a case so squarely within the doctrine's domain (i.e. a case involving the validity of a divorce decree).

can the public policy exception be suffered to swallow every rule in conflict of laws cases?
5.8.2008 7:36am
Eugene Volokh (www):
Wow, renvoi! I've always wanted to see comments that discuss renvoi.
5.8.2008 10:04am
wuzzagrunt (mail):
Warmongering Lunatic wrote:

You're right. Republicans can't win on policy issues. Because the media will not sustain conversation on substantive policy issues like Obama's statement that he was willing to invade a nuclear-armed long-time U.S. ally. A statement that showed that Obama has the strategic sense and foreign policy wisdom of a decapitated chicken.

I'm pretty sure it has been officially declared "racist" and Going negative" to point out that statement. Besides, blurting out something that outrageously dumb, without thinking, doesn't really count. They're "just words".
5.8.2008 12:10pm
HipposGoBerserk (mail):
This may be too late, but since you asked so nicely ;)

EV - I can't agree with your position that a US court shouldn't be able to set aside a marriage contract executed by an 18 yo woman in Pakistan on the basis that she's an adult and community pressure, etc., doesn't excuse her voluntary act.

There is extensive evidence of the practice of "honor killings" in Pakistan. A court would be justified in taking notice of the practice and, acting within its broad discretion, find that no 18 yo woman in Pakistan in fact has choice as to matters of sex and marriage, making the terms of the contract void.

HGB
5.8.2008 12:40pm
PatHMV (mail) (www):
b... The "court" which should have practiced renvoi was the Pakistani council or adminstrator who granted a divorce under Pakistani law to a couple living in America for the past 20 years while divorce litigation was already pending.

Had the husband gotten the Pakistani divorce first and THEN the wife filed in Maryland courts, then maybe your argument would have some merit. Certainly if the couple had gotten a Pakistani divorce while living in Pakistan, renvoi would have a place. But under these circumstances? I don't think so.
5.8.2008 1:05pm
PDXLawyer (mail):
The opinion strikes me as an example of an opinion best left unpublished. Clearly, the result is right, but the reasoning is just embarrassing.

First, the husband claimed that as an employee of the World Bank he was entitled to be treated as a diplomat (therefore, presumably, that he and his wife were not domiciled in Maryland, despite their long presence in the state). My guess is that this was BS, but the court never bothers to address the claim. Surely if he were, for example, a long-serving aide to the ambassador the result would be different. He also may have waived this as a matter of pleading, though the court never actually says so.

Second, as a general matter, marriage in the US is not viewed as a contractual relationship, but as a status relationship. The rules regarding the relationship thus change as the married couple move from jurisdiction to jurisdication. For example if you marry in California (a community property state) and then move to Oregon (not a community property state) assets acquired after the move are not community property. Similarly, if you marry in New York (a state which allows divorce only for cause) and move to Oregon (which allows no-fault divorce), you don't need cause to get a divorce.

Thus, if the parties' marital domicile was Maryland, Pakistani divorce law is simply irrelevant. Deciding whether it is consistent with Maryland public policy is unnecessary. Worse, to the extent we are dealing with religious law, deciding whether religious law conflicts with state public policy raises serious religious establishment and free exercise concerns. What next? Are Maryland courts going to decide that Orthodox Jewish marriage law is OK by Maryland, but Sharia (or FLDS "law") isn't?

Right result, bad opinion, IMHO.
5.8.2008 3:04pm
anonthu:
Because Republicans can't win elections on the merits of their policies.

hmmm... some of my preferences:
1. low taxes
2. government as small as possible
3. no pork
4. no nationalized healthcare (less government, please)
5. armed citizenry
6. pro-life/anti-abortion
7. iraq: sucks, but need to see it through
8. free trade
9. build nuclear plants
10. government as small as possible (needs repeating)

so clearly, I will be voting for Obama.
5.8.2008 3:48pm
Crunchy Frog:
A Zarkov: You forgot to mention BHO's statement that he intends to raise capital gains taxes, even though he acknowledges that revenues will go down as a result, just so it would be more "fair". As if everyone's 401K wouldn't be pummelled in the process.

Pure socialism. We can't have some folks rich and some folks poor, so let's make everyone poor instead.
5.8.2008 4:53pm
kimsch (mail) (www):
Crunchy, except, of course, for the elites who know what's best for the rest of us. They must have all the resources they want, big houses, summer homes, winter homes, servants, cars, private jets, access to the all the best of everything, etc. because they have such a big job telling us what's best for us....
5.8.2008 5:40pm
Patrick McKenzie (mail):
You know how sometimes, despite there being something big in the news, you just don't post on it? (I think the explanation for why has been on the blog three times.) Sometimes, despite there being something big on the blog, we just don't comment on it.
5.9.2008 1:25am
Haberdash:
Obama was also Constitutional Law Prof (Assistant Prof?

Guest Lecturer? -- he held the same titles that Judge Posner does).


Except Obama never published a single piece of legal scholarship as a student or a "law professor," while Posner is probably the most prolific legal scholar/author alive. Other than that, they are like totally the same.
5.9.2008 4:37am