Law Commons^™

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

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

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 …

Between Law And Religion: Procedural Challenges To Religious Arbitration Awards (Video), Michael Helfand

Michael A Helfand

No abstract provided.

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

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

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

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 …

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

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

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

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

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

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 …

The Usual Suspect Classifications: Criminals, Aliens And The Future Of Same-Sex Marriage, Michael A. Helfand

Michael A Helfand

In this Article, I argue for a new understanding of the immutability factor employed by courts in determining which classifications ought to receive suspect status under the Equal Protection Clause. Drawing on the process-based foundations of the Equal Protection Clause, this new understanding defines immutable traits not as traits that cannot be changed, but as traits that are in the words of the Supreme Court in Frontiero v. Richardson, mere "accident[s] of birth." In contrast, courts and scholars typically center the immutability inquiry on an individual’s technical ability to exit a particular class, which has led to inconsistencies in …

When Religious Practices Become Legal Obligations: Extending The Foreign Compulsion Defense, Michael A. Helfand

Michael A Helfand

The purpose of this article is to fashion a religious compulsion defense as an outgrowth of the legally recognized foreign compulsion defense. Contra the rationale advanced in Employment Division v. Smith, the article argues that the rationale behind the foreign compulsion defense - to protect individuals from conflicting legal norms of competing legal systems - should also apply to situations where religious law and United States law collide. In adopting the criteria of the foreign compulsion defense, a religious compulsion defense would extract individuals from conflicts of law, protecting individuals in the throes of the most intractable of dilemmas.