Any thoughts on whether, under current arbitration law, secular courts
asked to enforce arbitration agreements may (or must) set aside the arbitration
if it took place under procedural rules that call for some degree of sex
discrimination? I have in mind some understandings of Orthodox Jewish rules
that mandate the exclusion of the testimony of women in some (though not all)
situations, and some understandings of Sharia rules that place a lower weight
on the testimony of women.
Relatedly, may arbitral rulings be set aside on the grounds that the
arbitrators were chosen from a pool in which women are deliberately not
included?
I should say that I've in the past defended the propriety of religious
arbitration, see http://volokh.com/posts/1202446904.shtml; and I myself would
likely accept, on freedom of contract grounds, agreed-to arbitrations that
apply rules that are known to the parties to be sex-discriminatory. (I realize
that religious group social pressure may often push people into agreeing to
arbitration agreements -- and lots of other things -- that they might in some
sense not prefer, but I don't think that should be a basis for generally
rejecting such agreements.) At the same time, I'm not at all sure that
arbitration law shares my freedom-of-contract perspective when it comes to
discriminatory rules. So I'd love to hear what others who know more than I do
about this (and I'm not at all an arbitration expert) think.
Eugene
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
> Sent: Thursday, November 11, 2010 8:07 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: TRO against Oklahoma "no use of Sharia Law"
>
> The quoted language may mean no more than that parties can't agree to
> bound by religious law and then ask a court to determine (in violation of the
> First Am.) what that religious law requires.
>
> Mark Scarberry
> Pepperdine
>
>
>
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
> Sent: Thursday, November 11, 2010 7:31 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: TRO against Oklahoma "no use of Sharia Law"
>
> Interesting quote re the Oklahoma ban and religious arbitration:
>
> http://articles.latimes.com/2010/nov/10/opinion/la-oe-helfand-oklahoma-
> 20101110
>
> Rex Duncan, a Republican state representative in Oklahoma and a sponsor
> of the amendment, has explained that part of its purpose is to ban religious
> forms of arbitration: "Parties would come to the courts and say we want to
> be bound by Islamic law and then ask the courts to enforce those
> agreements. That is a backdoor way to get Sharia law into courts. There ...
> have been some efforts, I believe, to explore bringing that to America, and
> it's dangerous."
>
>
> ________________________________________
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
> [vol...@law.ucla.edu]
> Sent: Wednesday, November 10, 2010 2:09 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: TRO against Oklahoma "no use of Sharia Law"
>
> (1) Yes, there's a 1982 case finding no standing with regard to that
> Arkansas law.
>
> (2) The Oklahoma law is indeed awful, not just because of the
> prohibition on the use of Sharia law but chiefly because of the prohibition
> on the use of foreign law. See http://volokh.com/2010/03/19/oklahoma-
> house-of-representatives-proposes-ban-on-use-of-foreign-law-in-oklahoma-
> courts/, where I describe the various contract, tort, and family law
> controversies that would be completely screwed up by this amendment. (I
> don't think there'll be a problem with enforcing arbitral awards, but there
> would be a problem in the other contexts.)
>
> > -----Original Message-----
> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> > boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
> > Sent: Wednesday, November 10, 2010 10:42 AM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: TRO against Oklahoma "no use of Sharia Law"
> >
> > One interesting parallel are blasphemy laws still on the books in several
> > states but unenforceable under Torcaso v. Watkins. For example, the
> > Arkansas Constitution disqualifies atheists from serving in certain public
> > capacities:
> >
> > http://www.becketfund.org/index.php/article/958.html
> >
> > Presumably these provisions create harms identical to the ones created by
> > the OK provision, and suffer from the same standing/ripeness issues that
> the
> > Oklahoma law does, precisely because they are so clearly unenforceable.
> >
> > However, one interesting question that arises from the text of the
> Oklahoma
> > provision (set out below) is that it says that Oklahoma state courts "shall
> not
> > consider international or Sharia Law." Would the word "consider" prevent
> an
> > Oklahoma state court from enforcing an arbitral award conducted in
> > accordance with Sharia? What about an arbitration conducted in
> > accordance with English law? (Many international agreements provide for
> > arbitration under English law.) What about interpreting a contract with a
> > choice of law provision specifying English, Canadian, or French law?
> >
> >
> > The Courts provided for in subsection A of this section, when exercising
> their
> > judicial authority, shall uphold and adhere to the law as provided in the
> > United States Constitution, the Oklahoma
> > Constitution</wiki/index.php/Oklahoma_Constitution>, the United States
> > Code, federal regulations promulgated pursuant thereto, established
> > common law, the Oklahoma Statutes and rules promulgated pursuant
> > thereto, and if necessary the law of another state of the United States
> > provided the law of the other state does not include Sharia Law, in making
> > judicial decisions. The courts shall not look to the legal precepts of other
> > nations or cultures. Specifically, the courts shall not consider
> > international
> or
> > Sharia Law. The provisions of this subsection shall apply to all cases
> > before
> > the respective courts including, but not limited to, cases of first
> impression.
> >
> >
> > ________________________________
> > From: religionlaw-boun...@lists.ucla.edu [religionlaw-
> > boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
> > [vol...@law.ucla.edu]
> > Sent: Tuesday, November 09, 2010 5:41 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: TRO against Oklahoma "no use of Sharia Law"
> >
> > Perhaps I'm missing something here, but I thought that Flast
> > was
> > limited to taxpayer lawsuits based on the spending of money pursuant to
> a
> > legislative authorization. See especially Hein, but also Valley Forge.
> > Does
> it
> > really stand for the broader proposition that any citizen of a state has
> > standing to sue based on the very existence of a statute that endorses or
> > disapproves of religion? I would have thought not, but I'd love to hear
> what
> > others have to say - again, about what standing law currently is, not what
> it
> > should be.
> >
> > Eugene
> >
> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> > boun...@lists.ucla.edu] On Behalf Of Steven Jamar
> > Sent: Tuesday, November 09, 2010 2:32 PM
> > To: Law & Religion issues for Law Academics
> > Subject: Re: TRO against Oklahoma "no use of Sharia Law"
> >
> > Flast v Cohen.
> > State taxpayer standing is different from federal--broader. Crampton v
> > Zabriskie
> > This law is the epitome of one where broad standing should be allowed
> > because of the obvious establishment issues raised and the clear
> > discrimination against some law on a religious basis. It is not merely "in
> god
> > we trust" on money.
> >
> > But perhaps I was a bit flippant in my response. It should be the simplest
> > standing case for injury by someone in the state. But, since it is not
> > taxing
> > and spending, it might not be so simple for this court.
> >
> > It is not a monument case. Nor is it like money cases and so on. It is
> > targeting a specific religion for negative treatment. But, as I noted in my
> > prior post, their is a possibility of someone actually having standing in
> > the
> > more traditional sense of particularized individual injury by application of
> > the law, and the court could (to its discredit) allow the state to enact and
> > have on its books such a law unchallenged and unchallengeable for
> decades
> > until exactly the right case comes along.
> >
> > Steve
> >
> >
> > On Nov 9, 2010, at 5:11 PM, Volokh, Eugene wrote:
> >
> >
> > I'm not sure whether Prof. Jamar is making a point about what
> > standing law should be, or what it is now. But as to the latter, as best I
> can
> > tell, the Court has never held that anyone has standing to challenge a law
> > just because the law itself endorses or disapproves of a religion. And
> > Newdow v. Levefre (9th Cir. 2010),
> > http://scholar.google.com/scholar_case?case=753698042392989497, seems
> > to hold that there is no standing in such cases:
> >
> > Newdow lacks standing to challenge 36 U.S.C. § 302, which merely
> recognizes
> > "In God We Trust" is the national motto. Unlike §§ 5112(d)(1) and 5114(b)
> > [which provide for the placement of the motto on currency], § 302 does
> not
> > authorize or require the inscription of the motto on any object. Without
> §§
> > 5112 and 5114, the motto would not appear on coins and currency, and
> > Newdow would lack the "unwelcome direct contact" with the motto that
> > gives rise to his injury-in-fact. Although Newdow alleges the national
> motto
> > turns Atheists into political outsiders and inflicts a stigmatic injury upon
> > them, an "abstract stigmatic injury" resulting from such outsider status is
> > insufficient to confer standing.
> >
> > Other lower court cases recognizing standing to challenge monuments, city
> > seals, and the like have likewise all stressed the objectors' "frequent
> regular
> > contact" with the offending inscriptions and symbols. Or am I missing
> > something here?
> >
> >
> > Eugene
> >
> > From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-
> > boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On
> > Behalf Of Steven Jamar
> > Sent: Tuesday, November 09, 2010 2:04 PM
> > To: Law & Religion issues for Law Academics
> > Subject: Re: TRO against Oklahoma "no use of Sharia Law"
> >
> > Simplest establishment standing case ever. Disfavoring one religion is an
> > establishment violation -- that gives anyone standing. Of course the
> current
> > court could change the rules and restrict standing in this area as they have
> in
> > others. Since it is at least theoretically possible that someone in
> > Oklahoma
> > could suffer actual harm from this provision (enforcement of an
> > internationally valid Will which is compliant with Hanafi or Shafai or
> Wahabi
> > or other schools of Islamic jurisprudence, for example), the court could use
> > this to trim establishment claim standing.
> >
> >
> > On Nov 9, 2010, at 4:47 PM, Volokh, Eugene wrote:
> >
> >
> >
> > I thought I'd ask list members what they thought about this. Here's my
> post
> > on the subject, in case it's of interest - I'd love to hear whether others
> > on
> > the list agree.
> >
> >
> > http://volokh.com/2010/11/09/district-court-temporarily-enjoins-
> oklahoma-
> > no-use-of-shariah-law-in-court-constitutional-amendment
> >
> >
> >
> >
> > --
> > 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/
> >
> >
> >
> > "Never doubt that the work of a small group of thoughtful, committed
> > citizens can change the world. Indeed, it's the only thing that ever has."
> >
> > Margaret Meade
> >
> >
> >
> >
> >
> > _______________________________________________
> > To post, send message to
> > Religionlaw@lists.ucla.edu<mailto: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.
> >
> >
> >
> > --
> > 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/
> >
> >
> >
> > "Years ago my mother used to say to me... 'In this world Elwood' ... She
> > always used to call me Elwood... 'In this world Elwood, you must be Oh So
> > Smart, or Oh So Pleasant.' Well for years I was smart -- I recommend
> > pleasant. You may quote me." --Elwood P. Dowd
> >
> >
> >
> > - Mary Chase, "Harvey", 1950
> >
> >
> >
> >
> > _______________________________________________
> > 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
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>
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> can read the Web archives; and list members can (rightly or wrongly) forward
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>
>
> _______________________________________________
> 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
>
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> can read the Web archives; and list members can (rightly or wrongly) forward
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>
>
> _______________________________________________
> 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.
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> can read the Web archives; and list members can (rightly or wrongly) forward
> the messages to others.
>
_______________________________________________
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