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Articles 1 - 8 of 8
Full-Text Articles in Law
Religion's Wise Embrace Of Commerce, Michael Helfand
Religion's Wise Embrace Of Commerce, Michael Helfand
Michael A Helfand
No abstract provided.
A Liberalism Of Sincerity: The Role Of Religion In The Public Square, Michael Helfand
A Liberalism Of Sincerity: The Role Of Religion In The Public Square, Michael Helfand
Michael A Helfand
This article considers the extent to which the liberal nation-state ought to accommodate religious practices that contravene state law and to incorporate religious discourse into public debate. To address these questions, the article develops a liberalism of sincerity based on John Locke’s theory of toleration. On such an account, liberalism imposes a duty of sincerity to prevent individuals from consenting to a regime that exercises control over matters of core concern such as faith, religion, and conscience. Liberal theory grounds the legitimacy of the state in the consent of the governed, but consenting to an intolerant regime is illegitimate because …
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 …
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 …
Confirming Piskei Din In Secular Court, Michael Helfand
Confirming Piskei Din In Secular Court, Michael Helfand
Michael A Helfand
No abstract provided.
How The Diversity Rationale Lays The Groundwork For New Discrimination: Examining The Trajectory Of Equal Protection Doctrine, Michael Helfand
How The Diversity Rationale Lays The Groundwork For New Discrimination: Examining The Trajectory Of Equal Protection Doctrine, Michael Helfand
Michael A Helfand
This Article advocates differentiating between two distinct categories of equal protection cases. The first-what I have termed indicator cases-are instances where courts consider whether there are sufficient factual indications to demonstrate the existence of aprimafacie equal protection violation. The second-violation casesare instances where courts consider, having already determined the existence of an equal protection violation, whether there is a good enough justification for a prima facie equal protection violation. Unfortunately, the Supreme Court has not differentiated between these two different types of cases. This has led to a string of decisions where the Supreme Court has erroneously looked for justifications …