Perhaps the Post should have a lawyer write their story criticizing Yale Law Dean's legal theories...

Post writer Meghan Clyne attacks Obama's nominee for State Department Counsel, Yale Law Dean Harold Koh. Clyne offers a spurious story (which has since been picked up as daily shrieking points for Glenn Beck and Co.) that Koh wants to have Sharia law applied in the US:

A New York lawyer, Steven Stein, says that, in addressing the Yale Club of Greenwich in 2007, Koh claimed that "in an appropriate case, he didn't see any reason why sharia law would not be applied to govern a case in the United States."

A spokeswoman for Koh said she couldn't confirm the incident, responding: "I had heard that some guy . . . had asked a question about sharia law, and that Dean Koh had said something about that while there are obvious differences among the many different legal systems, they also share some common legal concepts."

Score one for America's enemies and hostile international bureaucrats, zero for American democracy.

Huh? So an uncomfirmed claim that appears to completely misrepresent Koh's position is a score for America's enemies? Is it really completely out of bounds to say that Sharia law and US law share some common concepts? I'm not an expert on Sharia, but I'd imagine that it's got some basic "don't steal" principles in their somewhere that match up to American law.

The other charge against Koh is that he wants to abrogate US sovereignty by having US courts look to foreign law. As far as I can tell, he's looking to do it in the same way that many other mainstream jurists and scholars do- in the realm of the 8th amendment. The 8th amendment forbids "cruel and unusual punishment." The word "unusual" needs to be defined in some manner, and as it is a compararatory adjective, you have to compare a punishment regime with those of other states or nations. It's not at all unreasonable for the courts to take notice of the fact that the US is one of the only countries that allows the execution of minors... because the Constitutional term "unusual" demands a comparison with other systems.

Of course Clyne is a writer for conservative hack publications like National Review and the Weekly Standard, and not a lawyer, so I wouldn't expect her to know the intricacies of 8th amendment jurisprudence. On the other hand, perhaps that also means that she's unqualified to offer a lengthy article about the problems with Koh's jurisprudential theories.