Why isn't Shelley v. Kramer at least relevant, even if it can be distinguished, and even if it's most extreme implications-that all judicial enforcement of private activity is state action- would be problematic to many albeit not always in the same cases?
Marc D. Stern Associate General Counsel for Legal Advocacy ste...@ajc.org 212.891.1480 646.287.2606 (cell) <http://www.ajc.org/> NOTICE This email may contain confidential and/or privileged material and is intended for the sole use of the intended recipient(s). If you are not the intended recipient, please be advised that you have received this email in error and that any use, disclosure, copying, distribution or other transmission is prohibited, improper and may be unlawful. If you have received this email in error, you must destroy this email and kindly notify the sender by reply email. If this email contains the word CONFIDENTIAL in its Subject line, then even a valid recipient must hold it in confidence and not distribute or disclose it. In such case ONLY the author of the email has permission to forward or otherwise distribute it or disclose its contents to others. _____ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan Oman Sent: Monday, January 03, 2011 10:28 To: Law & Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement? It seems difficult to find an equal protection violation if the Court is merely enforcing the contract. It seems to me that a more likely constitutional objection would be that the contract cannot be enforced without running afoul of the neutral principles doctrine. Can a court make a decision about who is or is not a Muslim without making theological choices? Would a shia muslim be acceptable? A member of the nation of Islam? ~~~~~~~~~~~~~~~~~~~~~~~~ Nathan B. Oman Associate Professor William & Mary Law School P.O. Box 8795 Williamsburg, VA 23187 (757) 221-3919 "I beseech you, in the bowels of Christ, think it possible you may be mistaken." -Oliver Cromwell On Mon, Jan 3, 2011 at 10:06 AM, Volokh, Eugene <vol...@law.ucla.edu> wrote: That's the issue lurking in <http://scholar.google.com/scholar_case?case=11521915190435651264> In re Aramco Servs. Co., now on appeal to the Texas Supreme Court. DynCorp and Aramco Services (both of which were at the time Delaware corporations headquartered in Houston, though Aramco Services is a subsidiary of Saudi Aramco <https://www.aramcoservices.com/about/> , the Saudi government's oil company) signed an agreement under which DynCorp was to create a computer system (in the U.S.) and install it at Aramco's Saudi facilities. The contract provided that it was to be interpreted under Saudi law, and arbitrated under Saudi arbitration rules and regulations. Those rules and regulations apparently call for the arbitrators to be Muslim Saudi citizens. The trial court, however, appointed a three-arbitrator panel consisting of a Muslim (apparently a Saudi) and two non-Muslim non-Saudis. Aramco appealed, arguing that (1) under the contract the arbitrators were not supposed to be appointed by a court, and, (2) in the alternative, that the court erred in appointing non-Muslim non-Saudis. The Texas Court of Appeals agreed with Aramco on item 1, and therefore didn't reach item 2. But there is an interesting constitutional issue lurking in the background: If a contract does call for a court to appoint arbitrators, and provides that the arbitrators must be Muslims (or Jews or Catholics or what have you), may a court implement that provision, or does the First Amendment or the Equal Protection Clause bar the court - a government entity - from discriminating based on religion this way, even pursuant to a party agreement? Any thoughts on this? Eugene _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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