RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement?
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. image001.jpg___ 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.
Re: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement?
Nathan is correct in that I would think judicial enforcement of contracts requiring religious arbitrators has plenty of opportunities to threaten the liberal state. First, I assume as a matter of contract law that any obligations arising out of such agreements that involve otherwise illegal conduct are void. So genital mutilation, trading of girls as wives (or simply for procreation), aiding polygamy, covering up child abuse when it is required to be reported, and the settling of debts through indentured servitude are out of the picture. Second, does commercial arbitration ever involve real property? If so, we are right back in Shelley v Kraemer territory, no? One of the reasons in my view justifying the Shelley result is that such contracts shut out minorities for generations to come. The time lag of the deal is troubling Third, I see little difference between this and Bob Jones or Shelley, so I think the racial category is likely to cause courts great trouble Finally, why isn't a liberal society better served by enforcement of such agreements within their own universes, which would leave the civil courts out? Religious cultures have plenty of ways to penalize their members including excommunication or shunning. Why are civil courts needed exceopt to shore up the power of the religion? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Nathan Oman nate.o...@gmail.com Sender: religionlaw-boun...@lists.ucla.edu Date: Mon, 3 Jan 2011 16:55:34 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? ___ 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. ___ 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.
Re: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement?
First, I assume as a matter of contract law that any obligations arising out of such agreements that involve otherwise illegal conduct are void. So genital mutilation, trading of girls as wives (or simply for procreation), aiding polygamy, covering up child abuse when it is required to be reported, and the settling of debts through indentured servitude are out of the picture. This is true regardless of the religious content of the contract, and would be true regardless of the content of constitutional law. (Also, it is worth pointing out that female genital mutilation is not condoned by Islamic law and is condemned by ulama of the classical fiqh.) Second, does commercial arbitration ever involve real property? If so, we are right back in Shelley v Kraemer territory, no? One of the reasons in my view justifying the Shelley result is that such contracts shut out minorities for generations to come. The time lag of the deal is troubling Two points. First, in most of the commercial arbitrations involving Islamic law any real estate is located in a foreign country. Furthermore, the main point at which these arbitrations are likely to diverge significantly from western law is in the application of the prohibition on riba, which is basically usury. The reality is that this is not going to be a dramatic show down over FMG or the stoning of adulterers. It is going to be a dispute about whether a sale and lease back transaction contains an implied usurious interest rate or the like. Second, while I think that there is some truth to concerns about the long lasting effects of real estate, I don't think that is ultimately what makes the outcome in Shelly v. Kramer justifiable is that it involved real rather than personal property. Rather, I think that it had everything to do with the history of racial subordination in this country and the way in which real estate covenants perpetuated that system of racial subordination. It makes not sense to me to try to understand the outcomes in cases like Shelly v. Kramer as applying some universal principle rather than as a reaction to the particular history of slavery and its aftermath in the United States. The normative question, it seems to me, is whether, in light of American history and our present circumstances, Islamic arbitration of commercial disputes between two large corporations that have agreed to the application of Islamic law to their dispute arising out of a transaction occurring in Saudi Arabia raises some similar systemic threat to liberal democracy in the United States. Frankly, I just don't see it as being remotely analogous to the way in which Jim Crow undermined the liberal order in the United States. Indeed, attempts to equate the two strike me as bizarrely implausible. Finally, why isn't a liberal society better served by enforcement of such agreements within their own universes, which would leave the civil courts out? Religious cultures have plenty of ways to penalize their members including excommunication or shunning. Why are civil courts needed exceopt to shore up the power of the religion? I actually think that this makes a great deal of sense, and as I read the contract at issue in the Texas case it is not at all clear to me that it actually did contemplate an American court -- as opposed to a Saudi court -- appointing the arbiter. Hence, as a prudential matter, I think that religious communities would be best served not trying to heavily enlist the state in their dispute resolution processes. That said, it seems to me that one can involve the state in such contracts on exactly the same basis that the state is involved in all contracts, namely respecting the independent choices of its citizens to order their legal affairs as they see fit. Such an autonomy justification for contract is essentially agnostic as to the substantive content of contracts, so long as they do not stray into illegality or unconscionability. What matter is not what the parties choose but that they chose it. Nate Oman ___ 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.
RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement?
I think the 1983 New York Court of Appeals decision in Avitzur v. Avitzur, 446 NE2d 136 is relevant to this discussion. There a court enforced the so-called Lieberman clause in a Jewish marriage contract (Ketubah) which bound the parties to appear before a Jewish religious court so the wife could obtain a religious divorce once the parties were divorced civilly. The New York court enforced the agreement over Establishment Clause objections, saying: In short, the relief sought by plaintiff in this action is simply to compel defendant to perform a secular obligation to which he contractually bound himself. In this regard, no doctrinal issue need be passed upon, no implementation of a religious duty is contemplated, and no interference with religious authority will result. Certainly nothing the Beth Din can do would in any way affect the civil divorce. To the extent that an enforceable promise can be found by the application of neutral principles of contract law, plaintiff will have demonstrated entitlement to the relief sought. Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan Sent: Mon 1/3/2011 6:29 PM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement? Eugene writes, By the way, what do you think about a state university administering a privately funded scholarship for Christian students? Just to clarify your point, Eugene - Is the distinction you are drawing one that distinguishes between government resources being allocated by private decision makers on the basis of religion and a government actor allocating private resources on the basis of religion. So for example - if to avoid overcrowding in the courts, the government financed arbitration panels to resolve contract disputes and the parties agreed to select arbitrators of a particular faith to hear their dispute, that would not be a problem. But if a judge chooses arbitrators based on religious belief who will be paid by the parties (according to the terms of the arbitration clause in their contract), that would create a constitutional problem. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Monday, January 03, 2011 2:29 PM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I wrote: I'm no great fan of the more expansive readings of Shelly. But when a government actor is deciding who gets a particular (lucrative) position based on that person's religion, it seems to me that state action is eminently present, or more specifically that the government actor is discriminating based on religion in presumptive violation of the Free Exercise Clause and the First Amendment. To be sure, the government actor isn't motivated by religious animus; it's just trying to enforce a contract. But it is still deliberately treating people different from other people based on whether they are Muslims or not. (When the court just enforces an arbitration conducted by a private party, there is not such discrimination by a government entity, even if the private party discriminates based on religion or sex in selecting the arbitrators.) Nathan Oman writes: Why say that the government is discriminating on the basis of religion if it is simply apply neutral principles of contract law. I understand that there is a question as to whether the contract can be enforced using merely neutral principles, but that isn't your argument here. Rather, I take it that your objection rests on a non-discrimination principle. Where is the discriminatory legal principle at issue? I don't see a discriminatory legal principle at issue here. But I see a discriminatory decision by a judge: I will not appoint Joe Schmoe as an arbitrator, because he is not Muslim. To be sure, the judge is just enforcing a contract. But he is still a government actor, allocating a particular post based on religion. That he is just doing that in enforcing a contract does not, I think, prevent his discriminatory conduct from being state action. By the way, what do you think about a state university administering a privately funded scholarship for Christian students? 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.
