Lies About Harold Koh Are Always in Fashion

Mr. Weigel:

Why do you say the claim is “slander”?

Sharia law is Islamic law. Does one slander another by saying the other follow's Islam? (Oh, I am not a Muslim, but an atheist of East-Europe Jewish and Magyar/Greek-Orthodix heritage.)

More important:

In several prominent nations, Sharia law constitutes part of the national law. Suppose a litigation set in a U.S. federal court and involving citizens or firms of two nations, the U.S. and an Islamic state, like Saudi Arabia or Dubai, having pertinent legal rules that include Sharia law principles. Most litigation-material events occurred in the Islamic state, “Nation M,” whose policy-interests and other legal interests predominate the case.

Concerning a certain material issue, the federal court must use the “choice-of-law” rules of the (U.S.) state of its location, and that state's “choice-of-law” rules seem to require application of a Sharia-law rule of Nation M. So, the federal court applies the Nation M Sharia-law rule.

That choice-of-law scenario is not un-American, but rather blandly quotidian in American law. And a perfectly conservative, normal, Wall Street attorney would press for choice of the Sharia-law rule if it would further his major U.S. corporate-client's interest. So, why the big stink because somebody asserted that Koh would use Sharia law?

So, why the big stink because somebody asserted that Koh would use Sharia law?

Perhaps because it's not true?

“A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”

So, “strangely enough,” according to your very over-broad, hence false, statement of the law (really a statement of quasi-legal lore, rather than a legal rule), if I called Newt Gingrich a Black (“African American”), I would be uttering a slander.

Once, an early 20th century (Jim Crow) Kentucky high court held that if one calls a White woman Black, one commits “slander per se.”

But a pleasant fact is: That holding does not remain law in the U.S., even in Kentucky.

Your legal view is the kind that would earn a “D” (perhaps even an “F”) from me were you my law student. (Oh, but the good news is that I retired on 31 December 1997.)

Oh, a law professor! How impressive. We are all so in awe.

Argumentum ad verecundiam with a strong dash of trite pedantry. Nice.