Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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Labor Activism Brings Spotlight to Freedom of Speech

Daniel Huchla

Have you ever wondered how your food is made?  More specifically, have you ever wondered if your food is produced ethically? There is one approach that aims to promote compliant business.[i]  The second approach is to expose unethical business practices through investigative journalism. For attempting to expose allegedly unethical practices Andy Hall faced the prospect of up to seven years in prison on the basis of the Thai law of defamation. What about freedom of speech and the press? Using U.S. law as a model, Thailand should modify its law to eliminate the possibility of criminal liability for defamation.

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Photo Credit: Kevin Casper – Public Domain Pictures

 

Andy Hall, a British lawyer and academic, collaborated with Finnwatch, a Non-Governmental Organization based in Finland, as a researcher on labor standards in the Food Industry in Thailand.[ii]  This venture resulted in the 2013 publication “Cheap Has a High Price”, exposing immigration and labor issues related to specific producers of tuna and pineapple products in Thailand.[iii]  As a result, Natural Fruit Company Ltd. lost business and brought suit against Andy Hall in Thailand alleging defamation.[iv]  During the course of the multiyear litigation there was a degree of public outcry from elements of the international community on Andy Hall’s behalf.[v] On September 20, 2016, the Bangkok South Criminal Court found Andy Hall guilty of criminal defamation and cybercrimes.[vi]  Hall received a suspended three year sentence and a 150,000 baht ($4,300) fine.[vii]  But, civil liability still looms in the distance, especially if Thailand follows res judicata, by which Hall could be precluded from arguing his civil liability since he has already been found criminally liable, which presumably has a higher standard of proof.[viii]

 

As a  sovereign nation, Thailand has control over the laws and their application within its borders. The issue of domestic sovereignty echoes the common phrase “When in Rome do as the Romans do.”[ix] Under Thai law, defamation can result in criminal and civil liability.[x] Criminal defamation is defined as “imput[ing] anything to the other person before a third person in a manner likely to impair the reputation of such other person or to expose such other person to be hated or scorned.”[xi] Because Mr. Hall’s work was published online (albeit in Finnish), he was additionally subjected to liability under the Computer Penal Code, which has stiffer penalties.[xii]

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Photo Credit: MBogdan – Mary’s Rosaries

Thailand does allow defenses in actions for defamation. A defendant may prove the truth of his statement, or if the plaintiff is a “subject of public criticism” the defendant may assert the statement was a “fair comment” made in “good faith.”[xiii]  In the case of Andy Hall it is uncertain where the gap exists that the defense of truth was unsuccessful. But, there has been criticism regarding the limited sample size for interviews, leading one to believe that the facts may not be inherently false, but just overgeneralized.[xiv]  That this is sufficient to find liability is an unfortunate byproduct of a system that places the burden upon the defendant to prove truth.

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What if Andy Hall had investigated a company in the United States instead? Under United States law, the company as Plaintiff would have to show that a false statement was made.[xv]  Changing the burden of proof in this instance would have drastic effect. If the publication was just overgeneralized, it would be equally difficult to prove the statement was false in the United States as it was to prove that it was true in Thailand. Even if the company were able to prove the statement to be false there are further protections for speech in the United States. Depending on whether the company is considered private or public, they would additionally be required to show either negligence or knowing culpability (“actual malice”) on behalf of Mr. Hall.[xvi] With all these protections, Mr. Hall likely would not have been found civilly liable for defamation in the United States. Within the U.S., there are several states that allow for criminal liability for defamation; but, these laws are confined by the same robust protections as civil defamation.[xvii]

However, these protections have not always existed in the United States. The law of defamation has evolved massively over the past sixty years in the United States. Prior to 1964, defamation allowed for per se liability.[xviii] Under this system, falsity was the only thing that needed to be proved.[xix] We don’t have to look very far in United States history for some level of liability to be foreseeable. This change additionally reflects that legal reform is possible and valuable.

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Going forward, what should be the reform priorities on this issue in Thailand? Ideally, the burden of proof should be shifted from the Defendant to the Plaintiff. Placing the burden upon the defendant can have a chilling effect on speech. The burden of proof coupled with criminal responsibility for defamation is guaranteed to limit speech. In this regard, Andy Hall is just the tip of the iceberg; a Thai woman is facing similar criminal charges for attempting to bring light to the alleged graphic murder of her relative.[xx]

Daniel Huchla is a third year law student at the University of Baltimore and a graduate of Miami University with a Bachelor of Music. During his undergraduate studies, he performed in an International Opera Festival located in Brazil. He also serves as Associate Managing Editor for the University of Baltimore Law Review. Areas of interest include Administrative Law, International Humanitarian Law, International Criminal Law, and National Security Law. He is currently a Law Clerk with the Law Offices of McCabe, Weisberg & Conway.

[i] http://fairtradeusa.org/about-fair-trade-usa/mission

[ii] http://www.finnwatch.org/en/news/408-andy-hall-found-guilty-in-a-shock-ruling-by-bangkok-court

[iii] http://www.bbc.com/news/world-asia-37415590

[iv] Id.

[v] See e.g. https://www.walkfree.org/andy-hall/

[vi] BBC, supra note iv.

[vii] Id.

[viii]  Finnwatch, supra note iii; see e.g. Taylor v. Sturgell, 553 U.S. 880 (2008).

[ix] http://www.phrases.org.uk/meanings/when-in-rome-do-as-the-romans-do.html

[x] See Finnwatch, supra note iii.

[xi] https://www.samuiforsale.com/law-texts/thailand-penal-code.html#325

[xii] https://www.samuiforsale.com/law-texts/computer-crime-act.html

[xiii] http://kellywarnerlaw.com/thailand-defamation-laws/

[xiv] http://www.dw.com/en/rights-activist-andy-hall-sentenced-for-defaming-thailand-fruit-company/a-19562755

[xv] See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986); 1 Law of Defamation § 5:13 (2d ed.).

[xvi] 1 Law of Defamation § 1:34 (2d ed.)

[xvii] http://www.firstamendmentcenter.org/criminal-libel-statutes-state-by-state

[xviii] New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

[xix] Id.

[xx] http://www.prachatai.com/english/node/6590

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Governmental Media Regulation: U.S. vs. Bhutan

Raiven Taylor

As we all know, the media is used to spread the most recent news and current events. What many people do not know is that the media have rules and regulations they must follow in order to stay on TV and/or the radio. Many rules that regulate the media differ from country to country. Although the U.S. Constitution’s First Amendment guarantees the right to freedom of the press, usually with minimum regulations, other countries, such as Bhutan, which will be explored in this blog, do not have such freedom.

The U.S. gives most leeway to print media, such as newspapers, magazines, and flyers.[i] The only real regulation for print media is to deter defamation. [ii]  Defamation happens when untrue information is printed that may cause harm to someone.[iii] Defamation can be either written (libel) or communicated verbally (slander). Broadcasting media are a little more regulated than print.

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Broadcasting media are also regulated against defamation. In fact, broadcasters and their networks can be sued for slander.[iv] Broadcasting is also heavily regulated by the Federal Communications Commission (FCC).[v] The FCC polices the content of the airwaves and has the authority to fine or revoke broadcasting licenses for violating any of the following: broadcasting obscene programs at any time, broadcasting indecent programs during certain hours, or broadcasting profane language during certain hours.

Having regulations on the media could eventually spill into social media. However, to date, the U.S. has only come up with basic regulations on social media, such as the right of privacy, how one may create social media policies, and protocols for marketing on social media.[vi] Because social media is a growing media source, it has been very hard for the government to regulate.

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On the other hand, Bhutan has more restrictions on media outlets. Even though Bhutan claims to have a Constitution allowing free speech and opinion, Bhutan has an Act that prohibits criticism of the king as well as anything that may undermine or attempt to undermine the security and sovereignty of Bhutan.[vii] The government even restricts and censors topics that involve Nepali-speaking residents having to leave Bhutan.[viii] Many of the media outlets hesitate to push the limits of the regulations because the media depends on the government for funding and support.[ix]

Bhutan is a country that is far behind the times on Internet and television, both of which arrived in 1999.[x]  Even though Bhutan was behind the times, almost 10% of their population is on social media.[xi] Social media gives the Bhutanese an outlet to express their own opinions and views and changed the idea of criticizing the government, giving the younger generation an opportunity to have an opinion. [xii] However, due to the growth of social media and the presence of the population on social media in Bhutan, the government decided in 2014 to draft policy on the use of social media.[xiii]

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The government agreed that a huge benefit of having a social media policy would be for the government to engage its citizens and officials in the use of social media to share government information as a developmental tool for social, economic, and political change.[xiv] Discussions concerning social media use in Bhutan have even led to the idea of incorporating curriculum in the schools to have a social media component.[xv] Even though the Bhutanese government may appear to support the idea of social media and is not trying to regulate social media, the government has created guidelines one must follow when using social media. These include the requirement to be accurate, to never post anything malicious or misleading, to respect the Constitution and all laws, and to act in good judgment.[xvi] These are many things that young people do not think of when posting their opinions.

Given an option between the United States and Bhutan, I would choose to use social media in the U.S. The U.S. may regulate TV, radio, and print, but it does not regulate it in a way that would affect one’s rights. The U.S. can write, state, or show on TV what’s going on in the government, even if they disagree with what the government is doing. On the other hand, Bhutan regulates its media outlets in a way that only shines light on the government’s positive aspects instead of the negative. The Bhutanese government does not allow its citizens to share their opinions if they disagree with what the government is doing. While beneficial to maintaining the status quo in Bhutan, this restriction of rights affects the rights of the media and Bhutanese citizens alike.

Raiven Taylor is third year law student at the University of Baltimiore School of Law and is completing her concentration in International Law. She has an undergraduate degree in Political Science from Bowie State University. She has studied abroad in London, England and Clermond-Ferrand, France. She is an Senior Staff Editor for the Journal for International Law as well as Secretary for the International Law Society. Additionally, Raiven is a Rule 16 student attorney in the Immigrant Rights Clinic. Her passion and interest in international law is human trafficking and international human rights law.

[i] http://study.com/academy/lesson/rules-governing-the-media-definition-examples.html

[ii] Id.

[iii] Id.

[iv] Id.

[v] Id.

[vi] http://blogs.forrester.com/nick_hayes/13-07-31-five_common_legal_regulatory_challenges_with_social_media

[vii] https://freedomhouse.org/report/freedom-press/2013/bhutan

[viii] id.

[ix] Id.

[x] http://www.bbc.com/news/world-asia-25314578

[xi] Id.

[xii] Id.

[xiii] http://www.undp.org/content/bhutan/en/home/presscenter/articles/2015/01/14/bhutan-forms-its-first-social-media-policy.html

[xiv] Id.

[xv] Id.

[xvi] http://www.gnhc.gov.bt/wp-content/uploads/2011/05/RGoB-Draft-Social-Media-Policy.pdf


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Disenfranchisement: A Comparative Look at the Right of the Prisoner to Vote

Ali Rickart

Disenfranchisement, simply put, is “the taking away [of] the right to vote in public elections from a citizen or class of citizens.”[1] Throughout the world, people who have committed crimes that carry the weight of jail time or felony convictions are disposed of their right and ability to freely vote. Different levels of disenfranchisement occur, including 1) only during prison time, 2) during prison and parole, 3) during prison, parole and probation, and 4) prison, parole, probation, and post-sentence (which also has its own variations ranging from only after the second offense, to a 5 year waiting period, or full disenfranchisement after a felony conviction).

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Article 25 of the International Covenant on Civil and Political Rights (ICCPR), which is considered customary international law[2], “Every citizen shall have the right and the opportunity…(b) to vote…”[3] Even the United Nations Human Rights Committee has noted that article 25 of the ICCPR “lies at the core of democratic government based on the consent of the people” and if there must be a restriction on the right to vote, this must only occur in consideration that such restrictions are “objective and reasonable.”[4] The Committee further goes on to say that if a country decides, “conviction for an offence is a basis for suspending the right to vote” the suspension must be “proportionate to the offence and the sentence” and that those persons who may be “deprived of liberty but… not convicted should not be excluded from exercising the right to vote.”[5]

Yet, in the United States alone, 5.85 million are denied the right to vote due to felony disenfranchisement laws. Each state has the ability to direct and control the voter rights’ laws that allow for disenfranchisement, intentionally restricting the voter rights of those who have been convicted of felonies, which bars prisoners from voting in both state and federal elections. Out of the fifty states, however, only three states permanently disenfranchise felons – Iowa, Florida and Kentucky, alternatively, two states allow for everyone to vote, despite criminal records – Maine and Vermont.[6]

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In a study conducted of over 45 countries, accounting for the major countries in Europe, North America, Asia, South America, and Australia, almost half of the countries allow for felons to vote despite their prison conviction.[7] The restrictions imposed by countries are vast. For example, the majority of Eastern Europe allows for either full voting rights or impose selective restrictions [Bosnia (selective restrictions), Croatia, Czech Republic, Macedonia, Poland (selective restrictions), Romania (selective restrictions), Serbia, Slovenia, and Ukraine]. Other Eastern European countries such as Bulgaria, Hungary, and Russia only have a voting ban on felons during their prison time. The only one that had a full ban on voting rights for felons during prison and post-conviction was Armenia. Given many of these countries human rights records in other areas, this is a surprising right that is guaranteed.

In contrast, the United Kingdom continues to incorporate prisoner disenfranchisement into its laws, despite a ruling by the European Court of Human Rights in Hirst v. United Kingdom (No. 2), stating that the blanket ban on prisoner voting was unreasonable.[8] However, the United Kingdom does allow those who are only civil prisoners or on remand un-sentenced to vote. There was a bill introduced in 2012 and put into law in 2014, the Convicted Prisoners Voting Bill that limits the scope of disenfranchisement to those who are serving a custodial sentence.[9]

Other countries that allowed a full vote included Canada, Austria, Denmark, Finland, Ireland, Israel, Latvia, Lithuania, Norway, Spain, South Africa, Sweden and Switzerland. Countries that follow selective restriction on voting rights include Germany (which only takes away rights on rare, court-mandated instances), Iceland (if the felony is for a prison term longer than four years), Australia, France, Greece, Italy, Luxembourg, Malta, and Portugal. The only countries that have full disenfranchisement laws for post-conviction felons include Belgium (if a sentence is longer than seven years), Armenia, Chile and in some instances, the United States (on a state-by-state basis).

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Some groups such as the American Civil Liberties Union and The Sentencing Project have started movements in places such as the United States, to recognize that all people should have a right to vote under both domestic law and international law as evidenced by the Constitution and treaties such as the ICCPR.

Prison was created not only as a punishment, but also as a way to rehabilitate those who have broken the law. In the case of rehabilitation, we should work towards the idea that we want those who have broken the law to not only learn from their mistakes and move forward but also to one day reintegrate themselves into society as productive citizens. When stripping them of such a simple, inherent right to be a part of the democratic process that governs them, how do we expect them to reach this goal?

Former prisoner in the United Kingdom, Caspar Walsh, writes about how disenfranchisement inhibits the ability of prisoners to rehabilitate and causes a disconnect between those behind bars and politicians creating the laws that control everyone’s lives.[10] The Sentencing Project published a debate over the topic, “Should Ex-felons be Allowed to Vote?” between Roger Clegg and Marc Mauer. Mauer cites an Israeli Supreme Court case, discussing the right of felons to vote because “society must ‘separate contempt for his act from respect for his right’.”[11] With the amount of people in prisons worldwide, the disenfranchised could have serious effects on elections if they were able to freely vote despite their imprisoned status.

To view further debate on whether or not prisoners should be allowed to vote, more information can be found at 1) Duel: Should Prisoners be able to vote? or 2) Why Can’t Felons Vote?[12]

[1] DISENFRANCHISEMENT, Black’s Law Dictionary (9th ed. 2009)

[2] Statute of the International Court of Justice, art. 38, para. 1 (defines the customary international law as “general practice accepted as law”); International Convention on Civil and Political Rights, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) (168 countries are parties to the Covenant, evidencing a general practice accepted as law) [hereinafter ICCPR].

[3] ICCPR art. 25.

[4] General Comment Adopted by the Human Rights Committee under Article 40, Paragraph 4, of the ICCPR, CCPR/C/21/Rev.1/Add.7, August 27, 1996, Annex V, para. 4 (examples of “objective and reasonable” include setting age limits for voting or denying the right due to established mental incapacity).

[5] Id. at para. 14.

[6] Map of State Criminal Disenfranchisement Laws, ACLU, https://www.aclu.org/maps/map-state-criminal-disfranchisement-laws

[7] International Comparison of Felon Voting Laws, ProCon.org (May 27, 2014), http://felonvoting.procon.org/view.resource.php?resourceID=289.

[8] Convicts ‘will not all get vote’, BBC News, Oct. 6, 2005, http://news.bbc.co.uk/2/hi/uk_news/4315348.stm; Mark Tran, UK Prisoners Denied the Vote Should not be Compensated, ECHR Rules, The Guardian, Aug. 12, 2014, http://www.theguardian.com/politics/2014/aug/12/uk-prisoners-denied-vote-no-compensation-european-court-of-human-rights.

[9] Convicted Prisoners Voting Bill, 2014-5, H.C. Bill 50 (U.K.), available at http://www.publications.parliament.uk/pa/bills/cbill/2014-2015/0050/15050.pdf.

[10] Caspar Walsh, Why Prisoners Should be Given the Right to Vote, The Guardian, June 5, 2012, http://www.theguardian.com/society/2012/jun/05/prisoners-right-to-vote.

[11] Roger Clegg & Marc Mauer, Should Ex-Felons be Allowed to Vote?, Sentencing Project, Nov. 1, 2004 available at http://www.sentencingproject.org/doc/File/FVR/fd_legalaffairsdebate.pdf.

[12] Shami Chakrabarti & Dominic Raab, Duel: Should Prisoners be able to vote?, Prospect, Aug. 20, 2014, http://www.prospectmagazine.co.uk/regulars/duel-should-prisoners-be-able-to-vote; Reynolds Holding, Why can’t Felons vote?, Time, Nov. 1, 2006, http://content.time.com/time/nation/article/0,8599,1553510,00.html.


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Sweet Home Alabama: How “Amendment One” Will Cause Problems for Alabama Courts

Justin Tepe

On November 4, 2014, Alabama voters passed an amendment to their state constitution that prohibits “the application of foreign law in violation of rights guaranteed natural citizens by the United States and Alabama Constitutions, and the statutes, laws, and public policy thereof, but without application to business entities.”[1] This amendment is problematic though, as it not only will potentially be struck down as unconstitutional but also has the potential to affect international dealings between residents of Alabama.

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The bill proposing the amendment was sponsored by Alabama State Senator Gerald Allen. In 2011, Senator Allen sponsored a similar bill, but it was withdrawn prior to being placed on the ballot. The prior bill, titled the Sharia Law Amendment, suggested that Alabama courts should not be permitted to apply Sharia (Islamic law) in particular.[2] Perhaps significant in the Senator’s decision to withdraw the bill was the fact that in November of 2010, the United States District Court for the Western District of Oklahoma held that a similar state statute that forbade state courts from applying Sharia law was unconstitutional under the Free Exercise and Establishment Clauses of the First Amendment.[3] This time, however, the Senator’s bill excludes any mention of a particular sect, cultural group, religion, or set of specific laws that the amendment proposes to exclude from judicial consideration.

While it is surely not the intention of any legislator or proponent of this bill to discriminate against any foreign law or religion, this amendment warrants a closer look…just to make sure. Birmingham attorney Eric Johnston drafted the bill for Senator Allen, and stated that his goal was to “’just do something legal, not political.’”[4] But in the same breath, Mr. Johnston stated that “‘Women’s rights are compromised by Sharia rights if a lawyer in a custody case says, ‘Islam requires you to do this.’”[5] I’ll discuss more of the legal implications below, but this has hints of the same discrimination that was deemed unconstitutional in Awad v. Ziriax. Despite the fact that this amendment does not explicitly state that Islamic law will be banned from state courts, the decision in Awad hinged on the fact that by disallowing a party’s choice of law (namely, Sharia law), the individual is subject to “official condemnation [which] will result in a stigma attaching to his person, relegating him to an ineffectual position within the political community, and causing him injury.”[6] The court in Awad went on to say that the harm that the plaintiff would have suffered was not merely produced by “observation of conduct with which one disagrees”, but was “produced by government condemnation of one’s own religion or endorsement of another’s in one’s own community….”[7]

Sharia-law-Billboard

Amendment One would seem to accomplish the same thing; by condemning and excluding a person’s choice of law, there is a stigma attached to the individual of inferiority. To be clear, the ability to apply Sharia law in United States courts does not apply to criminal matters, but rather civil ones. For example, if a person were to seek to have their will probated under Sharia law, this would not be allowed in Alabama.[8] Additionally, if two parties in a private matter were to contract that any arbitration would be done through an imam, Alabama would say not allow it in their courts.[9]

The drafters of Amendment One may have intended to get around the unconstitutionality of their provision under Awad by stating that the foreign law would not be applicable only if it “violates the rights” of United States or Alabama citizens.[10] Eric Johnston claims that the Amendment “does not affect [foreign marriages and adoptions] at all…[t]hat was a red herring to scare people away.”[11] But what if a couple is married in a country with different divorce laws than the United States and sign a prenuptial agreement? If that prenuptial agreement is governed by law other than the United States and the couple wants a divorce in Alabama, the prenuptial will not be considered by the court. If one of the Alabamian party seeks to have the foreign prenuptial enforced, but the other Alabamian does not, the prenuptial that should be binding on the parties would be excluded from Alabama courts. The foreign governed agreement could be viewed as violating the rights of the Alabama citizen seeking its exclusion.

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The Amendment seems to be a veiled attempt to skirt the holding in Awad, and the statements of the drafters themselves indicates a desire to exclude Sharia law in particular from Alabama. Alabama citizens will only be harmed by this Amendment, and it would not be surprising to see the Amendment to fall the way of the provision that was struck down in Awad.

Justin Tepe is a third-year student at the University of Baltimore School of Law. Justin earned a bachelor’s degree in Political Science with a minor in Philosophy from St. Mary’s College of Maryland. While studying Political Science, Justin developed a passion for foreign politics and international relations. As Editor-in-Chief of the University of Baltimore Journal of International Law, Justin has had the opportunity to build on his passion for international law and help grow the Journal’s impact on the UB community. Justin has worked as a paralegal and law clerk in civil litigation firms over the last three years.

[1] Alabama Foreign Laws in Court, S. 4, 2013 Reg. Sess. (Al. 2013).

[2] Amanda Taub, Alabama’s new anti-Sharia law is discriminatory, unnecessary, and could cause real problems, Vox, http://www.vox.com/2014/11/5/7160303/alabama-sharia-ban-problem (Nov. 5, 2014).

[3] See generally, Awad v. Ziriax, 754 F.Supp. 2d 1298 (2010).

[4] Greg Garrison, Amendment banning ‘foreign law’ in Alabama courts passes; will be added to Alabama Constitution, Al.com, http://www.al.com/news/index.ssf/2014/11/amendment_banning_foreign_law.html (Nov. 4, 2014).

[5] Id.

[6] Awad, 754 F.Supp. 2d at 1303.

[7] Id. (internal citations omitted).

[8] Id. at 1304.

[9] Liz Farmer, Alabama Joins Wave of States Banning Foreign Laws, Governing, http://www.governing.com/topics/elections/gov-alabama-foreign-law-courts-amendment.html (Nov. 4, 2014).

[10] Alabama Foreign Laws in Court, S. 4, 2013 Reg. Sess. (Al. 2013).

[11] Garrison, supra note 4.