Academic

Helfand on Religious Arbitration

By Lawrence Solum

Michael A. Helfand (Pepperdine University School of Law) has posted Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders (New York University Law Review, Vol. 86, 2011 (forthcoming)) on SSRN. Here is the abstract:

This Article considers a trend towards what I have termed the ?new multiculturalism,? where conflicts between law and religion are less about recognition and symbolism and more about conflicting legal orders. Nothing typifies this trend more than the increased visibility of religious arbitration, whereby religious groups use current arbitration doctrine to have their disputes adjudicated not in U.S. courts and under U.S. law, but before religious courts and under religious law. This dynamic has pushed the following question to the forefront of the multicultural agenda: under what circumstances should U.S. courts enforce arbitration awards issued by religious courts in accordance with religious law. Indeed, with growing skepticism regarding the oppressive potential of religious majorities, critics have questioned whether religious arbitration has any place in a regime dedicated to individual liberties. By contrast, this Article contends that current arbitration doctrine can meet the challenges of the new multiculturalism. To do so, this Article makes two concrete policy recommendations: (1) courts should redefine the scope of enforceability of religious arbitration awards by limiting the application of the public policy exception to vacate religious arbitration awards and (2) courts should expand the application of unconscionability to void religious arbitration agreements.

And from the paper:

The new multiculturalism puts governments in a difficult bind. While promoting cultural initiatives is often necessary to address the needs of various cultural groups, too strong an emphasis on promoting culture could lead to oppression of individual group members.235 Accordingly, the recognition and enforcement of religious law poses a threat to individual liberties primarily because it gives power to religious communities over their members.236 Power, under such circumstances, becomes a zero-sum game, where the more power government grants to religious jurisdictions, the more difficult it will be for an individual religionist to access secular jurisdiction. This presumption holds true because as a religious community becomes more powerful, individuals may have a more difficult time exiting the religious community. In a situation where an individual, by default, remains under the influence and power of a given religious community, such fears are well founded.

And from later in the article:

In order to address these competing interests and concerns, this Article recommends reconsidering the application of two doctrinal checks on arbitral power: public policy and unconscionability. Tailoring these doctrines to the religious arbitration context provides a blueprint for enforcing religious arbitration awards that pose challenges to standard conceptions of arbitral justice. Thus, the legal reform suggested in this article is two-fold. On the one hand, this Article contends that courts ought to consider enforcing the decisions of religious arbitration courts even when they violate public policy. In so doing, courts should employ a balancing approach to the various interests at stake in any particular arbitration, taking seriously the freedom-enhancing value of enforcing religious arbitration awards. On the other hand, courts should evaluate religious arbitration awards with an eye toward potential unconscionable rules that may have been employed during the arbitration proceedings. This concern stems from the possibility that religious arbitration courts, while having the advantage of employing mandatory procedural rules, may in fact apply procedural or substantive rules that are grossly unfair. Only by meeting these dual objectives can religious arbitration courts serve as a viable institution of the new multiculturalism.

Highly recommended!

Full post as published by Legal Theory Blog on March 04, 2011 (boomark / email).