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Full-Text Articles in Law
Between Law And Religion: Procedural Challenges To Religious Arbitration Awards, Michael Helfand
Between Law And Religion: Procedural Challenges To Religious Arbitration Awards, Michael Helfand
Michael A Helfand
This Essay presented at the Sharia and Halakha in America Conference explores the unique status of religious law as a hybrid concept that simultaneously retains the characteristics of both law and religion. To do so, the Article considers as a case study how courts should evaluate procedural challenges to religious arbitration awards. To respond to such challenges, courts must treat religious law as law when defining the contractually adopted religious procedural rules and treat religious law as religion when reviewing precisely what the religious procedural rules require. On this account, constitutional and arbitration doctrine combine to insulate religious arbitration awards …
Arbitration's Counter-Narrative: The Religious Arbitration Paradigm, Michael Helfand
Arbitration's Counter-Narrative: The Religious Arbitration Paradigm, Michael Helfand
Michael A Helfand
Arbitration theory and doctrine is dominated by an overarching narrative that conceptualizes arbitration as an alternative to litigation. Litigation, one the one hand, is more procedurally rigorous, but takes longer and costs more; arbitration, on the other hand, is faster and cheaper, but provides fewer procedural safeguards. But notwithstanding these differences, both arbitration and litigation ultimately serve the same purpose: resolving disputes. Indeed, this narrative has been pervasive, becoming entrenched not only in recent Supreme Court decisions, but also garnering support from both arbitration critics and supporters alike.
This Article, however, contends that this exclusive focus on arbitration’s standard narrative …
Between Law And Religion: Procedural Challenges To Religious Arbitration Awards, Michael Helfand
Between Law And Religion: Procedural Challenges To Religious Arbitration Awards, Michael Helfand
Michael A Helfand
This Essay presented at the Sharia and Halakha in America Conference explores the unique status of religious law as a hybrid concept that simultaneously retains the characteristics of both law and religion. To do so, the Article considers as a case study how courts should evaluate procedural challenges to religious arbitration awards. To respond to such challenges, courts must treat religious law as law when defining the contractually adopted religious procedural rules and treat religious law as religion when reviewing precisely what the religious procedural rules require. On this account, constitutional and arbitration doctrine combine to insulate religious arbitration awards …
Beit Din's Gap-Filling Function: Using Beit Din To Protect Your Client, Michael A. Helfand
Beit Din's Gap-Filling Function: Using Beit Din To Protect Your Client, Michael A. Helfand
Michael A Helfand
This article considers how rabbinical courts play an important gap-filling role by providing parties with a forum to adjudicate a subset of religious disputes that could not be resolved in court. Under current constitutional doctrine, civil courts cannot adjudicate disputes that turn on religious doctrine and practice. By contrast, rabbinical courts can resolve such disputes--and the decisions of rabbinical courts can then be enforced by civil courts even as those same civil courts could not resolve the dispute in the first instance. In this way, rabbinical courts--like other religious arbitration tribunals--fill a void created by constitutional law, ensuring that parties …
Between Law And Religion: Procedural Challenges To Religious Arbitration Awards (Video), Michael Helfand
Between Law And Religion: Procedural Challenges To Religious Arbitration Awards (Video), Michael Helfand
Michael A Helfand
No abstract provided.
Speaker, “Between Law And Religion: Procedural Challenges To Religious Arbitration Awards”, Michael Helfand
Speaker, “Between Law And Religion: Procedural Challenges To Religious Arbitration Awards”, Michael Helfand
Michael A Helfand
No abstract provided.
Speaker, “Religion’S Footnote Four: Church Autonomy As Arbitration”, Michael Helfand
Speaker, “Religion’S Footnote Four: Church Autonomy As Arbitration”, Michael Helfand
Michael A Helfand
No abstract provided.
Religion's Footnote Four: Church Autonomy As Arbitration, Michael A. Helfand
Religion's Footnote Four: Church Autonomy As Arbitration, Michael A. Helfand
Michael A Helfand
While the Supreme Court’s decision in Hosanna-Tabor v. EEOC has been hailed as an unequivocal victory for religious liberty, the Court’s holding in footnote four – that the ministerial exception is an affirmative defense and not a jurisdictional bar – undermines decades of conventional thinking about the relationship between church and state. For some time, a wide range of scholars had conceptualized the relationship between religious institutions and civil courts as “jurisdictional” – that is, scholars converged on the view that the religion clauses deprived courts of subject-matter jurisdiction over religious claims. In turn, courts could not adjudicate religious disputes …
Litigating Religion, Michael A. Helfand
Litigating Religion, Michael A. Helfand
Michael A Helfand
This article considers how parties should resolve disputes that turn on religious doctrine and practice – that is, how people should litigate religion. Under current constitutional doctrine, litigating religion is generally the task of two types of religious institutions: first, religious arbitration tribunals, whose decisions are protected by arbitration doctrine, and religious courts, whose decision are protected by the religion clauses. Such institutions have been thrust into playing this role largely because the religion clauses are currently understood to prohibit courts from resolving religious questions – that is, the “religious question” doctrine is currently understood to prohibit courts from litigating …
Speaker, “Religion’S Footnote Four: Church Autonomy As Arbitration”, Michael Helfand
Speaker, “Religion’S Footnote Four: Church Autonomy As Arbitration”, Michael Helfand
Michael A Helfand
No abstract provided.
Speaker, “Religion’S Footnote Four: Church Autonomy As Arbitration”, Michael Helfand
Speaker, “Religion’S Footnote Four: Church Autonomy As Arbitration”, Michael Helfand
Michael A Helfand
No abstract provided.
Speaker, “Church Autonomy And Religious Arbitration: Two Models Of Legal Pluralism”, Michael Helfand
Speaker, “Church Autonomy And Religious Arbitration: Two Models Of Legal Pluralism”, Michael Helfand
Michael A Helfand
No abstract provided.
Speaker, “Church Autonomy And Religious Arbitration: Two Models Of Legal Pluralism”, Michael Helfand
Speaker, “Church Autonomy And Religious Arbitration: Two Models Of Legal Pluralism”, Michael Helfand
Michael A Helfand
No abstract provided.
Purpose, Precedent, And Politics: Why Concepcion Covers Less Than You Think (Video), Michael Helfand
Purpose, Precedent, And Politics: Why Concepcion Covers Less Than You Think (Video), Michael Helfand
Michael A Helfand
No abstract provided.
Purpose, Precedent, And Politics: Why Concepcion Covers Less Than You Think, Michael A. Helfand
Purpose, Precedent, And Politics: Why Concepcion Covers Less Than You Think, Michael A. Helfand
Michael A Helfand
This article sketches some possible limitations on the impact AT&T Mobility v. Concepcion will have going forward. While many have seen the Supreme Court’s decision as simultaneously signaling an end to the viability of class action lawsuits and undermining principles of federalism, there may be reasons to believe that it will not have implications quite so far reaching. Specifically, this article proposes three reasons why Concepcion’s impact may be limited. First, the decision lends itself to a more narrow reading, which simply demands that courts take the entire of an arbitration agreement into account before deploying common law defenses to …
Religious Arbitration And The New Multiculturalism: Negotiating Conflicting Legal Orders, Michael A. Helfand
Religious Arbitration And The New Multiculturalism: Negotiating Conflicting Legal Orders, Michael A. Helfand
Michael A Helfand
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 …
Fighting For The Debtor's Soul: Regulating Religious Commercial Conduct, Michael A. Helfand
Fighting For The Debtor's Soul: Regulating Religious Commercial Conduct, Michael A. Helfand
Michael A Helfand
Although courts often think of religion in terms of faith, prayer, and conscience, many religious groups are increasingly looking to religion as a source of law, commerce, and contract. As a result, courts are being called upon to regulate conduct that is simultaneously religious and commercial. In addressing such cases, some courts minimize the religious features of the case and simply focus on its secular elements while others over-exaggerate the religious features of the case and thereby refuse to adjudicate the dispute on Establishment Clause grounds. As an example of this dynamic, I explore the constitutionality of imposing sanctions for …
Speaker, “Religious Arbitration And The New Multiculturalism: Negotiating Conflicting Legal Orders”, Michael Helfand
Speaker, “Religious Arbitration And The New Multiculturalism: Negotiating Conflicting Legal Orders”, Michael Helfand
Michael A Helfand
No abstract provided.
Speaker, “Religious Arbitration And The New Multiculturalism: Negotiating Conflicting Legal Orders”, Michael Helfand
Speaker, “Religious Arbitration And The New Multiculturalism: Negotiating Conflicting Legal Orders”, Michael Helfand
Michael A Helfand
No abstract provided.
Panelist, “Rabbinical Arbitration In The 21st Century: Contemporary Issues And Challenges”, Michael Helfand
Panelist, “Rabbinical Arbitration In The 21st Century: Contemporary Issues And Challenges”, Michael Helfand
Michael A Helfand
No abstract provided.
Confirming Piskei Din In Secular Court, Michael Helfand
Confirming Piskei Din In Secular Court, Michael Helfand
Michael A Helfand
No abstract provided.
Speaker, “Fighting For The Debtor’S Soul: Church Autonomy, Religious Arbitration And Bankruptcy’S Automatic Stay”, Michael Helfand
Speaker, “Fighting For The Debtor’S Soul: Church Autonomy, Religious Arbitration And Bankruptcy’S Automatic Stay”, Michael Helfand
Michael A Helfand
No abstract provided.
Speaker, “Process And Pitfalls Of Confirming Piskei Din As Arbitration Awards”, Michael Helfand
Speaker, “Process And Pitfalls Of Confirming Piskei Din As Arbitration Awards”, Michael Helfand
Michael A Helfand
No abstract provided.