Re: May American court appoint only Muslim arbitrators, pursuant toanarbitration agreement?
On Mon, Jan 3, 2011 at 9:35 PM, hamilto...@aol.com wrote: Point of clarification--So genital mutilation is culturally Islamic as opposed to theologically Islamic? FMG is not practiced by the vast majority of Muslims and there is nothing in traditional Islamic law that supports it. My understanding it is that it is a practice -- like honor killings -- that is confined to a specific ethnic group and is practiced despite its formal condemnation by Islamic scholars. It is basically an East African tradition, although I wouldn't be surprised if the Muslim East Africans who practice it see it as connected to their religion, despite the absence of anything about FMG in the classical fiqh. The term autonomy really does nothing to further discussions about law and religion. It is a code word with more hidden agendas than meanings No hidden agenda in my use of the term autonomy, or at least no more hidden agenda than in the use of any other label to refer to a body of theories and arguments. I was not offering it up as a theory of law and religion but as a theory of contract law. You asked why the state should enforce religious contracts. My answer is that the state should enforce such contracts for the same reason that it enforces any other contract. Why should religious contracts be treated differently? I see no reason that the kinds of arguments deployed by autonomy theorist of contract (or efficiency theorists for that matter) cannot be deployed when the contract has a religious content. Given how deeply embedded the idea of the law's agnosticism toward the substantive content of contracts is, it seems to me that the burden is on those seeking to single some contract out for special disapproval. (This is why public policy and unconscionability are defenses rather than formation requirements.) In the case of Islamic commercial arbitration, two Muslims are likely to invoke Islamic law -- if they are Muslim -- because they believe that western law allows undue exploitation of weak parties and the accumulation of wealth through immoral means -- e.g. the charging of interest. They wish to avoid direct complicity in such practices by having future disputes governed by what they regard as a more just set of rules. The state becomes involved in such arbitration proceedings when one side disputes the scope of the contract, alleging that the other has not complied with his or her obligations under it. The state's involvement at this point is predicated on the ordinary values associated with the enforcement of contracts. The state is not enforcing this contract because it subscribes to the inherent value of Islamic law any more than the state's enforcement of your lease covenants has anything to do with the inherent value of restricting dog ownership in your building. Rather, the contract is being enforced either to respect the autonomous choices of citizens in a liberal polity a la Charles Fried, Randy Barnett, Steven Smith, etc. advance the efficient allocation of resources a la Richard Crasswell, Richard Posner, Bob Scott, Alan Schwartz, etc. protect against ex post opprotunism and reliance a la Grant Gilmore, Patrick Atiyah, etc. And so on. My point is simply that there is nothing special about religious contracts and the fact that the argument obscures the very fact that they are religious is an attack on our current system of contract law rather than a truism of law and religion debates. ___ 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 toanarbitrat...
Those who engage in female genital mutilation in fact have explicitly linked their practices to their religious beliefs. So it is a subculture within the larger Islamic community. I think it important to publicly identify criminal and tortious behavior with the religious tradition on which it rests. Otherwise, we are catering to the American societal instinct to whitewash religion to protect it from its darker corners. Until very recently, when people learned the facts of clergy abuse in the Catholic Church, it was unthinkable that you would say publicly that a bishop or pope could be responsible for the abuse. Facts about abuse have overcome the taboo, though, and many suffering in religiously imposed silence have been freed at least to name their abusers and those abusers' enablers The Mormons have waged an aggressive public campaign to distinguish themselves from the Fundamentalist Mormons. That is salutary for everyone, because it contributes a nuance needed in the discourse to be able to protect the vulnerable. It also puts the mainstream Mormons in a position of having to hew to the law as part of their own self-identity. All good in my view. In the same vein, I think it absolutely imperative that Muslims publicly disavow those Muslims who are engaging in practices that are against their Muslim faith. It enriches the culture and the debate, and more importantly in my view, it is more likely to protect the vulnerable by depriving criminal and tortious acts from the mantle of good religion. At least under existing Establishment Clause doctrine, contracts that require religious interpretation (all contracts require interpretation) present special problems not present in any other contract. I think Jones v. Wolf is very helpful on these points. In that case, the Court says that neutral principles of law can apply in disputes between believers over property, but the Court warns religious organizations to enter into contracts that reflect their intent using those neutral principles. If the courts must be arbiters of belief, they may not resolve the property dispute. Same principles apply here. By keeping courts out of the business of interpreting (i.e., determining) religious doctrine, the ends you mention are not necessarily disserved. Rather, commercial contractors are required to translate their religious beliefs into neutral rules that are then incorporated into the contract. The interpretation of doctrine is therefore done by the individuals, not the courts, and the courts are enforcing neutral principles. The use of Sharia law is a shorthand, not a necessity. The defense that having to spell out the principles of Sharia law that the parties intend to incorporate requires more words or paper is hardly persuasive. Marci FMG is not practiced by the vast majority of Muslims and there is nothing in traditional Islamic law that supports it. My understanding it is that it is a practice -- like honor killings -- that is confined to a specific ethnic group and is practiced despite its formal condemnation by Islamic scholars. It is basically an East African tradition, although I wouldn't be surprised if the Muslim East Africans who practice it see it as connected to their religion, despite the absence of anything about FMG in the classical fiqh. The term autonomy really does nothing to further discussions about law and religion. It is a code word with more hidden agendas than meanings No hidden agenda in my use of the term autonomy, or at least no more hidden agenda than in the use of any other label to refer to a body of theories and arguments. I was not offering it up as a theory of law and religion but as a theory of contract law. You asked why the state should enforce religious contracts. My answer is that the state should enforce such contracts for the same reason that it enforces any other contract. Why should religious contracts be treated differently? I see no reason that the kinds of arguments deployed by autonomy theorist of contract (or efficiency theorists for that matter) cannot be deployed when the contract has a religious content. Given how deeply embedded the idea of the law's agnosticism toward the substantive content of contracts is, it seems to me that the burden is on those seeking to single some contract out for special disapproval. (This is why public policy and unconscionability are defenses rather than formation requirements.) In the case of Islamic commercial arbitration, two Muslims are likely to invoke Islamic law -- if they are Muslim -- because they believe that western law allows undue exploitation of weak parties and the accumulation of wealth through immoral means -- e.g. the charging of interest. They wish to avoid direct complicity in such practices by having future disputes governed
Re: May American court appoint only Muslim arbitrators, pursuant toanarbitrat...
Is contract law shorthand? Or should we spell out all provisions of the UCC and common law contract of the particular state? Or can we just say law of the state of North Carolina? If we can say law of North Carolina will govern, we can also say law of France or law of Saudi Arabia or law of the Vatican. And if one or more of those happen to be religious law, that is just what is going on and the court must interpret that law, whatever its source or external characterization just as it would any other law. Most legal systems do not require that ridiculous thing called consideration as part of the contract formation process. So what? From within any legal system one can determine the existence of non-existence of a contract (or judicially enforceable agreement if you prefer). It doesn't matter whether that is the sharia or civil law or any other legal system. There remain many points of contention about what the law is in the common law and even more about how to apply it in a given setting -- even in a mature area like contracts. Same is true in other legal systems. No big deal. For the commercial contract, the court can figure out what the law is and apply it --even if it includes principles analogous to unconscionability as part of the understanding of the contract law. It is not establishment. It is not interpreting doctrinal disputes among churches with legal consequences -- it is resolving a contract dispute using the choice of law of the parties. End of line. This is no more establishment than is applying any choice of law provision. Like all choice of law provisions, however, the forum state will always be able to ignore particular bits of the foreign law that are against public policy in the forum state. that is a universal part of choice of law standards, howsoever varied choice of law rules themselves are. Steve On Jan 4, 2011, at 9:04 AM, hamilto...@aol.com wrote: t least under existing Establishment Clause doctrine, contracts that require religious interpretation (all contracts require interpretation) present special problems not present in any other contract. I think Jones v. Wolf is very helpful on these points. In that case, the Court says that neutral principles of law can apply in disputes between believers over property, but the Court warns religious organizations to enter into contracts that reflect their intent using those neutral principles. If the courts must be arbiters of belief, they may not resolve the property dispute. Same principles apply here. By keeping courts out of the business of interpreting (i.e., determining) religious doctrine, the ends you mention are not necessarily disserved. Rather, commercial contractors are required to translate their religious beliefs into neutral rules that are then incorporated into the contract. The interpretation of doctrine is therefore done by the individuals, not the courts, and the courts are enforcing neutral principles. The use of Sharia law is a shorthand, not a necessity. The defense that having to spell out the principles of Sharia law that the parties intend to incorporate requires more words or paper is hardly persuasive. -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Our scientific power has outrun our spiritual power. We have guided missiles and misguided man. - Martin Luther King Jr., Strength to Love, 1963 ___ 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 toanarbitrat...
I think it important to publicly identify criminal and tortious behavior with the religious tradition on which it rests. Otherwise, we are catering to the American societal instinct to whitewash religion to protect it from its darker corners. I agree with you in the abstract. You will notice that I did not deny the FMG is in some sense Islamic, only that it is compelled by Islamic law as that term is generally understood. I have no doubt that Muslim East Africans who practice FMG see it as a way of avoiding zina (sexual immorality) even if classical Muslim ulamas have never made this argument and the claim is denied by many modern Islamic jurists. It seems to me that there are two dangers with your preferred strategy. First, doing it well requires a fairly nuanced understanding of a religious tradition and this is not something that one often sees in public discussions of religion. The widespread belief -- which I take it that you shared -- that FMG is part of Islamic law and is a widespread Muslim practice is a case in point. I agree with you that there is a dangerous intellectual poverty in a discussion of religion that insists that it can never have any darker manifestations. On the other hand, there is a real risk of perpetuating ignorant stereotypes and this risk rises the more foreign the religion seems, where in functional terms in American society foreigness is defined in terms of one's distance from mainstream Protestantism. The second danger is the ease of assuming religious causation. For example, one might argue that Islam causes FMG. Here the issues get even more complicated. Clearly Islam does not cause FMG in any absolute sense. FMG is practiced by only a tiny minority of the world's billion or so Muslims. Also, my understanding is that FMG cuts across religious lines in East Africa, and is practiced by Muslims, Christians, and animists. At the same time, you are likely to see uniquely Islamic manifestations of the practice, manifestations that are going to be embedded in Islamic narratives about zina, etc. etc. A public pose of honestly calling a spade a spade etc. etc., especially when it is based on only a cursory understanding of the religious dynamics is likely to simply wash away such nuances and replace it with a linear story of religion X causes evil Y. This is especially true where religion X seems exotic and where there are groups such as the media and the plaintiffs bar that have powerful financial incentives to propagate simplistic stories. At least under existing Establishment Clause doctrine, contracts that require religious interpretation (all contracts require interpretation) present special problems not present in any other contract. I think Jones v. Wolf is very helpful on these points. In that case, the Court says that neutral principles of law can apply in disputes between believers over property, but the Court warns religious organizations to enter into contracts that reflect their intent using those neutral principles. If the courts must be arbiters of belief, they may not resolve the property dispute. Same principles apply here. By keeping courts out of the business of interpreting (i.e., determining) religious doctrine, the ends you mention are not necessarily disserved. Rather, commercial contractors are required to translate their religious beliefs into neutral rules that are then incorporated into the contract. The interpretation of doctrine is therefore done by the individuals, not the courts, and the courts are enforcing neutral principles. The use of Sharia law is a shorthand, not a necessity. The defense that having to spell out the principles of Sharia law that the parties intend to incorporate requires more words or paper is hardly persuasive. I don't have a quarrel with the basic approach in Jones v. Wolf, but I do think that your approach to contract drafting and interpretation runs counter to more than a century of development in contract theory and contract doctrine. I think that it is fairly widely accepted that in contract interpretation one of the chief functions of the courts is to assist the parties in resolving their dispute by seeking to give effect to their agreed upon terms. We do this all the time in other contexts, even when doing so requires that we make inquiries into the the shared meaning of apparently vague or ambiguous terms. This is the whole point behind the modern relaxation of the parole evidence rule or the mirror image rule under UCC 2-207. This approach in effect amounts to an ex post subsidy of contract drafting via the courts. The alternative is to simply refuse to interpret terms that aren't crystal clear on their face and require the parties to bear the costs of increased contract drafting ex ante. My point is simply that there is no reason to impose on religious contractors a greater burden in ex ante drafting than we impose on any other contracting party. This
Re: May American court appoint only Muslim arbitrators, pursuant toanarbitrat...
I agree with what Steven says here, but with some additions. First, generally foreign law is treated as a question of fact rather than a question of law. This means that the courts don't make their own independent judgment about the content of UK law or the like but are supposed to take evidence from experts etc. This means that the question of religious law must be a question of fact not of religious doctrine. To give a concrete example from Islamic law, it is a question of fact whether the Hanbali school of Islamic jurisprudence allows mut'a marriages (temporary marriages for a fixed term). It is NOT a question of fact (or at least a question of fact that a court can inquire into) whether mut'a marriage is truly Islamic. (Shias generally say yes; Sunnis generally say no). It seems to me that courts should be free to pass judgment on the first question but ought to be constitutionally prohibited from passing judgment on the second question. Whether a contract referencing Islamic law is asking the first sort of question or the second sort of question is a matter of interpretation that depends on the facts of the transaction. There are, however, good reasons for supposing that it is pretty unlikely that a commercial contract involving the application of Saudi law is asking the second sort of question rather than the first sort of question. 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 Tue, Jan 4, 2011 at 9:44 AM, Steven Jamar stevenja...@gmail.com wrote: Is contract law shorthand? Or should we spell out all provisions of the UCC and common law contract of the particular state? Or can we just say law of the state of North Carolina? If we can say law of North Carolina will govern, we can also say law of France or law of Saudi Arabia or law of the Vatican. And if one or more of those happen to be religious law, that is just what is going on and the court must interpret that law, whatever its source or external characterization just as it would any other law. Most legal systems do not require that ridiculous thing called consideration as part of the contract formation process. So what? From within any legal system one can determine the existence of non-existence of a contract (or judicially enforceable agreement if you prefer). It doesn't matter whether that is the sharia or civil law or any other legal system. There remain many points of contention about what the law is in the common law and even more about how to apply it in a given setting -- even in a mature area like contracts. Same is true in other legal systems. No big deal. For the commercial contract, the court can figure out what the law is and apply it --even if it includes principles analogous to unconscionability as part of the understanding of the contract law. It is not establishment. It is not interpreting doctrinal disputes among churches with legal consequences -- it is resolving a contract dispute using the choice of law of the parties. End of line. This is no more establishment than is applying any choice of law provision. Like all choice of law provisions, however, the forum state will always be able to ignore particular bits of the foreign law that are against public policy in the forum state. that is a universal part of choice of law standards, howsoever varied choice of law rules themselves are. Steve On Jan 4, 2011, at 9:04 AM, hamilto...@aol.com wrote: t least under existing Establishment Clause doctrine, contracts that require religious interpretation (all contracts require interpretation) present special problems not present in any other contract. I think Jones v. Wolf is very helpful on these points. In that case, the Court says that neutral principles of law can apply in disputes between believers over property, but the Court warns religious organizations to enter into contracts that reflect their intent using those neutral principles. If the courts must be arbiters of belief, they may not resolve the property dispute. Same principles apply here. By keeping courts out of the business of interpreting (i.e., determining) religious doctrine, the ends you mention are not necessarily disserved. Rather, commercial contractors are required to translate their religious beliefs into neutral rules that are then incorporated into the contract. The interpretation of doctrine is therefore done by the individuals, not the courts, and the courts are enforcing neutral principles. The use of Sharia law is a shorthand, not a necessity. The defense that having to spell out the principles of Sharia law that the parties intend to incorporate requires more words or paper is hardly persuasive. -- Prof. Steven D. Jamar vox: 202-806-8017 Associate
RE:
I had taken Eugene to be saying that even in the absence of a dispute over whether a particular arbitrator was Muslim or not, a civil court could not, acting as an arbitral authority, carry out an arbitral provision appointing a Muslim as an arbitrator because that would violate the rule against entanglement. Leaving to one side Eugene's separate objection about discrimination, it sounds like from the response below that we are actually in agreement on the following points re entanglement: (1) if there is a dispute over whether a particular arbitrator is Muslim or not, then the court cannot act (i.e. it cannot appoint an arbitrator over one party's objection) because that would force it to decide a religious question; and (2) if there is no dispute over whether a particular arbitrator is a Muslim, the civil court may enforce the Muslim arbitrator provision because it does not have to decide a religious question to do so. Please correct me if I am wrong about this. Perhaps the misunderstanding was rooted in what it means to enforce a contract. I would view a court as enforcing a contract when it orders performance, even in the absence of any dispute between the parties over how it is to be performed. I take Eugene's comment below to mean that what he means by enforce is what I would call enforce against. The other possible reason for the confusion is the extremely unusual (perhaps unique) circumstance of a court allowing itself to be appointed a supervising arbitral authority pursuant to a private agreement. That means that the court is actually wearing two hats: the civil court enforcing the contract, and the arbitral authority working within the rules of the private arbitral agreement. Those are two different kinds of enforcement. (And as Mark's and Steve's comments have intimated, whatever one thinks about the underlying principles, using this particular case as a guide to setting public policy would be wrongheaded, since very few courts are going to allow themselves to be dragooned into arbitration work based on a provision in a private contract.) What remains is Eugene's separate argument that it is discrimination violating the First Amendment and the Equal Protection Clause to say to a potential arbitrator, you aren't Muslim so I am not appointing you arbitrator, in accordance with the parties' agreement (expressed either via contract or stipulation). First, I think this fact scenario is pretty unlikely, as it requires several layers of hypothetical to reach it. But even if it did come to pass, I don't think this is a very strong point because the government actor is merely carrying out the wishes of the private parties who are in complete agreement. Government actors are allowed to (and routinely do) make distinctions among religious groups in accordance with private citizens' undisputed wishes, not just with respect to chaplains, but also with respect to prisoner religious requests, religious corporate activity, recognition of religious holidays like Christmas or Diwali, child custody arrangements, etc. Government actors need not deny the anthropological/sociological truth that citizens have religious worldviews in order to interact with them. It is where those citizens are in a religious dispute that the government must tread more carefully. I would still be interested in Eugene's responses to my hypotheticals. What about enforcing the parties' choice to appoint the Pope as an arbitrator? Both the parties and the court know the Pope to be Catholic. Discrimination? Invidious discrimination? Discrimination that violates the First Amendment? What about enforcing a contract provision that the parties arbitrate before a beis din or a Christian arbitration service? Specifying a specific religious arbitration service would seem to be just as discriminatory as the Muslim arbitrator provision at issue here. What about a corporation sole? Is it discrimination to recognize Cardinal Mahony as the head of the corporation sole the Archdiocese of LA? What if the government ran a free arbitration/mediation service along the lines of the AAA? Would it be discrimination by a government actor to enforce any of the provisions described? I don't think any of these things earn the ambiguous and generally pejorative term discrimination, but if they do it is not constitutionally-barred discrimination but constitutionally-protected discrimination. Eric From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Tuesday, January 04, 2011 12:22 AM To: Law Religion issues for Law Academics Subject: I’m not sure I quite understand Eric’s point. If the contract says that Muslim arbitrators are to be chosen, but there’s a dispute about who’s a Muslim, and the result is that the court “can’t act,” then that’s another way of
RE: May American court appoint only Muslim arbitrators, pursuant toanarbitrat...
As I think Prof. Oman has already mentioned, in most cases it is pretty obvious from the context what specific variant of Sharia is meant. The contract in the ARAMCO case means Saudi Sharia, e.g.: Should there be several arbitrators, the Chairman must know the Shari’a, commercial laws and the customs in force in the Kingdom. As Prof. Oman points out below, religious law is basically just another kind of foreign law except where civil courts would be forced to decide disputed religious questions and therefore have to abstain. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan Oman [nate.o...@gmail.com] Sent: Tuesday, January 04, 2011 11:44 AM To: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant toanarbitrat... I agree with what Steven says here, but with some additions. First, generally foreign law is treated as a question of fact rather than a question of law. This means that the courts don't make their own independent judgment about the content of UK law or the like but are supposed to take evidence from experts etc. This means that the question of religious law must be a question of fact not of religious doctrine. To give a concrete example from Islamic law, it is a question of fact whether the Hanbali school of Islamic jurisprudence allows mut'a marriages (temporary marriages for a fixed term). It is NOT a question of fact (or at least a question of fact that a court can inquire into) whether mut'a marriage is truly Islamic. (Shias generally say yes; Sunnis generally say no). It seems to me that courts should be free to pass judgment on the first question but ought to be constitutionally prohibited from passing judgment on the second question. Whether a contract referencing Islamic law is asking the first sort of question or the second sort of question is a matter of interpretation that depends on the facts of the transaction. There are, however, good reasons for supposing that it is pretty unlikely that a commercial contract involving the application of Saudi law is asking the second sort of question rather than the first sort of question. 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 Tue, Jan 4, 2011 at 9:44 AM, Steven Jamar stevenja...@gmail.commailto:stevenja...@gmail.com wrote: Is contract law shorthand? Or should we spell out all provisions of the UCC and common law contract of the particular state? Or can we just say law of the state of North Carolina? If we can say law of North Carolina will govern, we can also say law of France or law of Saudi Arabia or law of the Vatican. And if one or more of those happen to be religious law, that is just what is going on and the court must interpret that law, whatever its source or external characterization just as it would any other law. Most legal systems do not require that ridiculous thing called consideration as part of the contract formation process. So what? From within any legal system one can determine the existence of non-existence of a contract (or judicially enforceable agreement if you prefer). It doesn't matter whether that is the sharia or civil law or any other legal system. There remain many points of contention about what the law is in the common law and even more about how to apply it in a given setting -- even in a mature area like contracts. Same is true in other legal systems. No big deal. For the commercial contract, the court can figure out what the law is and apply it --even if it includes principles analogous to unconscionability as part of the understanding of the contract law. It is not establishment. It is not interpreting doctrinal disputes among churches with legal consequences -- it is resolving a contract dispute using the choice of law of the parties. End of line. This is no more establishment than is applying any choice of law provision. Like all choice of law provisions, however, the forum state will always be able to ignore particular bits of the foreign law that are against public policy in the forum state. that is a universal part of choice of law standards, howsoever varied choice of law rules themselves are. Steve On Jan 4, 2011, at 9:04 AM, hamilto...@aol.commailto:hamilto...@aol.com wrote: t least under existing Establishment Clause doctrine, contracts that require religious interpretation (all contracts require interpretation) present special problems not present in any other contract. I think Jones v. Wolf is very helpful on these points. In that case, the Court says that neutral principles of law can apply in disputes between believers over property, but the Court warns
Muslim arbitrator contracts, entanglement, and discrimination
Let me deal in this post with Eric's query about the entanglement issues raised by contracts that call for judges to appoint Muslim arbitrators. I think the matter is complex, and involves an interaction between First Amendment no-entanglement doctrine and First Amendment no-discrimination doctrine. But since I'm more familiar with disputes about who is a Christian (or who is a Jew) than about who is a Muslim, let me discuss this in the context of a hypothetical contract that calls on courts to appoint arbitrators who are Christian; and let me refer specifically to what I understand is a dispute among Christians about whether Mormons are Christian. Let me also assume that we have a typical plaintiff vs. defendant lawsuit in which an impasse, or unenforceability, is favorable to the defendant. I agree that if the court chooses arbitrators from among those submitted by parties, and both parties submit only arbitrators who both parties agree are Christian, there would probably be no entanglement problem. But say that the plaintiff proposes a Mormon, and the defendant objects on the grounds that the Mormon isn't a Christian. The court can't decide whether the Mormon is a Christian. What happens then? 1. One possibility is that the court will say the appoint-only-Christian-arbitrators provision is unenforceable, and the court will therefore select arbitrators without regard to their Christianity. I assume this means that such provisions will become generally unenforceable, so long as the plaintiff wants to force such a decision by proposing a Mormon (or a similarly contested person that it suspects the defendant will challenge). The parties could still ensure arbitration only by Christians, just by providing only Christian names to the court (which won't be a problem in my view), so long as that's what the parties continue to want to do. But this would be because of each party's independent choice, not because of enforcement of the arbitrators who are Christian provision. 2. Another possibility is that the court will say the case can't proceed. This means the defendant will de facto win, because an impasse is in its favor. And this in turn means that plaintiffs will have a strong incentive *not* to propose Mormon arbitrators. The arbitrators who are Christian provision will thus in effect become an arbitrators who are Christian and not Mormon provision, because of the court's willingness to declare an impasse when there's a dispute. That strikes me as improper, both on no-religious-decisions grounds, and on no-discrimination grounds. Am I mistaken? 3. Yet I take it that a court would rarely allow there to be a total impasse that keeps a case from proceeding because of one party's objection to an arbitrator. What might the court do to avoid the impasse? Well, it might reject the plaintiff's proposal of a Mormon arbitrator, or make it clear to the plaintiff that the court will retaliate in various ways -- either through formal sanctions or through more informal attempts to punish perceived obstructionism -- if the plaintiff continues with the proposal. Yet this would mean that the court is discriminating against Mormon arbitrators, even though the contract could plausibly be read to allow them. 4. Alternatively, the court might reject the defendant's objections to the Mormon, or make it clear to the defendant that the court will retaliate against it if the objections persist. Yet this would mean that the court is effectively deciding that Mormons are Christians, which violates the no-religious-decisions principle. What course of action, or justification for one of these courses of action, am I missing here? Eugene Eric Rassbach writes: I had taken Eugene to be saying that even in the absence of a dispute over whether a particular arbitrator was Muslim or not, a civil court could not, acting as an arbitral authority, carry out an arbitral provision appointing a Muslim as an arbitrator because that would violate the rule against entanglement. Leaving to one side Eugene's separate objection about discrimination, it sounds like from the response below that we are actually in agreement on the following points re entanglement: (1) if there is a dispute over whether a particular arbitrator is Muslim or not, then the court cannot act (i.e. it cannot appoint an arbitrator over one party's objection) because that would force it to decide a religious question; and (2) if there is no dispute over whether a particular arbitrator is a Muslim, the civil court may enforce the Muslim arbitrator provision because it does not have to decide a religious question to do so. Please correct me if I am wrong about this. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get
Muslim arbitrator provisions and religious peremptory strikes
I have one more response to Eric's points, though this is one on which my views are especially tentative, because it relies on a line of cases -- the Court's peremptory challenge decisions -- the scope of which is uncertain. The Court has made clear that courts may not allow peremptory strikes based on the prospective jurors' race or sex, even when the strikes are exercised by nongovernmental litigants. As I understand it, most lower cases that have considered whether this principle applies to religion-based strikes have said that it does apply. I take it that this would extend even to consensual strikes, for instance when both the plaintiff and the defendant agree that they will want only Christian jurors. (I realize that the ease of concealing one's reasons for a peremptory challenge means that parties would usually do this quietly, and generally won't be noticed, but let's assume that everyone is being entirely candid.) So if a judge recognizes that there is such an agreement, he must forbid such peremptory strikes -- even though acceding to these strikes would simply involve doing nothing while the parties go along with their agreement, and would thus not involve any invidious discrimination on the judge's part. If that's so, then how it can be permissible for the judge *himself* to select arbitrators based on the arbitrator's religion, even when that is done pursuant to the agreement? I recognize that the jury is a state actor, in a way that the arbitrator is not. But the *judge* is a state actor. Why may he select Christian arbitrators when he must affirmatively block attempts to select Christian jurors? Eugene Eric Rassbach writes: I had taken Eugene to be saying that even in the absence of a dispute over whether a particular arbitrator was Muslim or not, a civil court could not, acting as an arbitral authority, carry out an arbitral provision appointing a Muslim as an arbitrator because that would violate the rule against entanglement. Leaving to one side Eugene's separate objection about discrimination, it sounds like from the response below that we are actually in agreement on the following points re entanglement: (1) if there is a dispute over whether a particular arbitrator is Muslim or not, then the court cannot act (i.e. it cannot appoint an arbitrator over one party's objection) because that would force it to decide a religious question; and (2) if there is no dispute over whether a particular arbitrator is a Muslim, the civil court may enforce the Muslim arbitrator provision because it does not have to decide a religious question to do so. Please correct me if I am wrong about this. Perhaps the misunderstanding was rooted in what it means to enforce a contract. I would view a court as enforcing a contract when it orders performance, even in the absence of any dispute between the parties over how it is to be performed. I take Eugene's comment below to mean that what he means by enforce is what I would call enforce against. The other possible reason for the confusion is the extremely unusual (perhaps unique) circumstance of a court allowing itself to be appointed a supervising arbitral authority pursuant to a private agreement. That means that the court is actually wearing two hats: the civil court enforcing the contract, and the arbitral authority working within the rules of the private arbitral agreement. Those are two different kinds of enforcement. (And as Mark's and Steve's comments have intimated, whatever one thinks about the underlying principles, using this particular case as a guide to setting public policy would be wrongheaded, since very few courts are going to allow themselves to be dragooned into arbitration work based on a provision in a private contract.) What remains is Eugene's separate argument that it is discrimination violating the First Amendment and the Equal Protection Clause to say to a potential arbitrator, you aren't Muslim so I am not appointing you arbitrator, in accordance with the parties' agreement (expressed either via contract or stipulation). First, I think this fact scenario is pretty unlikely, as it requires several layers of hypothetical to reach it. But even if it did come to pass, I don't think this is a very strong point because the government actor is merely carrying out the wishes of the private parties who are in complete agreement. Government actors are allowed to (and routinely do) make distinctions among religious groups in accordance with private citizens' undisputed wishes, not just with respect to chaplains, but also with respect to prisoner religious requests, religious corporate activity, recognition of religious holidays like Christmas or Diwali, child custody arrangements, etc. Government actors need not deny the anthropological/sociological truth that citizens have religious
Judges asked to choose Muslim arbitrators, universities asked to choose Christian scholarship recipients
Let me try to respond to Eric's arguments, in several parts. I'll discuss the entanglement who-is-a-Muslim? Issue in a separate e-mail, and try to focus on the discrimination issue here. 1. To begin with, it's not that unlikely to say to a potential arbitrator, you aren't Muslim so I am not appointing you arbitrator, if contracts providing for arbitration by court-appointed Muslim arbitrators can have that arbitration provision enforced. In fact, this is precisely one of the arguments that Aramco is making in this very case (in the alternative); the court appointed two non-Muslims arbitrators, and Aramco is saying this is wrong (though it's also arguing, in the alternative, that the court shouldn't have appointed arbitrators itself at all). 2. And if this is done, it still seems to me discrimination by the government -- the government is treating a person differently because of his membership in a particular religious group. That this merely involves carrying out the wishes of a private party may mean the government isn't motivated by hostility to a particular religion, but it is still discriminating based on religion. This returns me to the Christian scholarship hypothetical -- Eric, do you think that a public university may administer a scholarship created by a private party for Christian students, by itself giving the money to those students that it identifies as Christian? (I set aside such a scholarship being administered by a purely private entity, and focus on a scholarship that is being administered by the university, albeit distributing private money pursuant to the private donor's decision.) 3. I don't think it's at all routine for the government to discriminate this way against individuals based on their religious affiliations. I don't know, for instance, of how the government does this with regard to religious corporate activity. I don't think it does this as to holidays such as Christmas, the governmental observance of which generally does not involve discrimination against individuals based on their religious affiliations. Child custody arrangements is too broad a category to speak about in any unified way, so I'd like to hear about a specific example that would be analogous to the court's appointing a Muslim arbitrator pursuant to a contract. As to prisoner religious requests, my sense is that prisoners -- unlike the rest of us -- are indeed required to announce their religious affiliations if they are to benefit from a particular accommodation, but that is very much an exception to the general religious accommodation rule: That general rule is tha! t people who feel a religious obligation to do something (or not do something) are equally entitled to accommodation regardless of what group they belong to, and religion-specific accommodations (as opposed to practice-specific accommodations) are generally unconstitutional. 4. As to Eric's hypotheticals, I don't think there's any problem with a court's appointing a contractually specified person (the Pope, a particular Bishop) or a contractually specified entity (some particular organization that provides Christian or Jewish arbitration), just as there wouldn't be any problem with a court's appointing a contractually specified nonreligious figure or a contractually specified nonreligious entity. That does not involve a court's saying You're Muslim, you get this, you're not Muslim, you don't; it is that selection by a court -- or a public university -- that is generally unconstitutional. Eugene Eric Rassbach writes: What remains is Eugene's separate argument that it is discrimination violating the First Amendment and the Equal Protection Clause to say to a potential arbitrator, you aren't Muslim so I am not appointing you arbitrator, in accordance with the parties' agreement (expressed either via contract or stipulation). First, I think this fact scenario is pretty unlikely, as it requires several layers of hypothetical to reach it. But even if it did come to pass, I don't think this is a very strong point because the government actor is merely carrying out the wishes of the private parties who are in complete agreement. Government actors are allowed to (and routinely do) make distinctions among religious groups in accordance with private citizens' undisputed wishes, not just with respect to chaplains, but also with respect to prisoner religious requests, religious corporate activity, recognition of religious holidays like Christmas or Diwali, child custody arrangements, etc. Government actors need not deny the anthropological/sociological truth that citizens have religious worldviews in order to interact with them. It is where those citizens are in a religious dispute that the government must tread more carefully. I would still be interested in Eugene's responses to my hypotheticals. What about
RE:
Eric writes, What if the government ran a free arbitration/mediation service along the lines of the AAA? Would it be discrimination by a government actor to enforce any of the provisions described? I don't think any of these things earn the ambiguous and generally pejorative term discrimination, but if they do it is not constitutionally-barred discrimination but constitutionally-protected discrimination. Unless I misunderstand Eric's point here, I think this example provides much more support to Eugene's position than it does to Eric's argument. If the government administered an arbitration/mediation service in which the arbitration services were paid with public funds, I would think it is unconstitutional for the state administrator to comply with the clients' demand that he appoint only Muslim arbitrators to resolve a specific dispute. If the government administered a state funded tutorial service for children, I don't believe that it could comply with parental demands that it provide them a tutor of a particular faith. I think a similar argument could be raised with regard to court appointed counsel. If the government contracts with private actors to provide public services to beneficiaries, the fact that the beneficiaries may prefer to receive services from a person of one faith or another does not permit the government to discriminate on the basis of religion in complying with that request. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach [erassb...@becketfund.org] Sent: Tuesday, January 04, 2011 11:20 AM To: Law Religion issues for Law Academics Subject: RE: I had taken Eugene to be saying that even in the absence of a dispute over whether a particular arbitrator was Muslim or not, a civil court could not, acting as an arbitral authority, carry out an arbitral provision appointing a Muslim as an arbitrator because that would violate the rule against entanglement. Leaving to one side Eugene's separate objection about discrimination, it sounds like from the response below that we are actually in agreement on the following points re entanglement: (1) if there is a dispute over whether a particular arbitrator is Muslim or not, then the court cannot act (i.e. it cannot appoint an arbitrator over one party's objection) because that would force it to decide a religious question; and (2) if there is no dispute over whether a particular arbitrator is a Muslim, the civil court may enforce the Muslim arbitrator provision because it does not have to decide a religious question to do so. Please correct me if I am wrong about this. Perhaps the misunderstanding was rooted in what it means to enforce a contract. I would view a court as enforcing a contract when it orders performance, even in the absence of any dispute between the parties over how it is to be performed. I take Eugene's comment below to mean that what he means by enforce is what I would call enforce against. The other possible reason for the confusion is the extremely unusual (perhaps unique) circumstance of a court allowing itself to be appointed a supervising arbitral authority pursuant to a private agreement. That means that the court is actually wearing two hats: the civil court enforcing the contract, and the arbitral authority working within the rules of the private arbitral agreement. Those are two different kinds of enforcement. (And as Mark's and Steve's comments have intimated, whatever one thinks about the underlying principles, using this particular case as a guide to setting public policy would be wrongheaded, since very few courts are going to allow themselves to be dragooned into arbitration work based on a provision in a private contract.) What remains is Eugene's separate argument that it is discrimination violating the First Amendment and the Equal Protection Clause to say to a potential arbitrator, you aren't Muslim so I am not appointing you arbitrator, in accordance with the parties' agreement (expressed either via contract or stipulation). First, I think this fact scenario is pretty unlikely, as it requires several layers of hypothetical to reach it. But even if it did come to pass, I don't think this is a very strong point because the government actor is merely carrying out the wishes of the private parties who are in complete agreement. Government actors are allowed to (and routinely do) make distinctions among religious groups in accordance with private citizens' undisputed wishes, not just with respect to chaplains, but also with respect to prisoner religious requests, religious corporate activity, recognition of religious holidays like Christmas or Diwali, child custody arrangements, etc. Government actors need not deny the anthropological/sociological truth that citizens have religious worldviews in order to interact with them. It is where
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement
It seems there are a number of discrete issues involved. 1. Can an arbitration agreement require that sharia be applied under a choice of law provision -- it would seem so to me. Some seem to see entanglement. 2. Can an arbitration agreement require that arbitrators be knowledgeable about the underlying law, in this instance, sharia. Again, it seems so to me -- some have problems with it that I don't fully understand. 3. Can an arbitration agreement require the appointment of people of a certain faith to arbitrate the dispute under the contract within that faith? Again, I see no problem, but I do understand the equal protection and establishment concerns, though they seem to not be significant to me under a contract which the parties agree is to be arbitrated according to a set of rules and they want to have certain qualifications (including religious ones) for the arbitration. 4. Can an arbitration agreement which were to be drafted in the U.S. as part of a U.S. commercial transaction or consumer transaction include a provision that requires the arbitrators to be of a certain faith in arbitrating an ordinary commercial or consumer dispute where both parties want those particular characteristics for the arbitrators (we're not talking contracts of adhesion here or regulated industries or commercial banks, etc.). Why not? 5. Can the Bank of America or a securities firm or VISA cc or any such impose such a condition -- the arbitrators must be of a certain faith? No. Because these are contracts of adhesion and affect too many people and are too standard, etc. In this circumstance the public interest in non-discrimination on the basis of religion would trump. 6. Can the same sort of companies as in 5 enter into contracts with negotiated arbitration agreements under which the consumer or borrower or investor is the one who insists on the custom arbitration clause and the sharia law interpreted by Saudi Muslims? Why not? Where is the societal interest in not treating these contracts as enforceable? The court is not getting into any religious issues or religious laws. It is just following the contract in terms of the qualifications of the arbitrators as agreed upon by the parties -- and there is nothing insidious or invidious about it. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ For all men of good will May 17, 1954, came as a joyous daybreak to end the long night of enforced segregation. . . . It served to transform the fatigue of despair into the buoyancy of hope. Martin Luther King, Jr., in 1960 on Brown v. Board of Education ___ 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.
