I'm not sure whether 42 USC 1981 would apply to arbitral tribunals'
decisions about which witnesses to consider; but if it does, I wonder how it
would apply to Beth Dins. As I understand it, certain kinds of witnesses
before those tribunals must be adult, male, Sabbath observing Jews. That is an
age, sex, and religion classification, but also, I take it, an ethnic
classification: A Sabbath-observing child of a Jewish mother would qualify,
but a Sabbath-observing child of a non-Jewish mother would not qualify, unless
he had converted in a way that the tribunal accepts -- and this is so even if
the actual religious beliefs of the two people were identical. And as I
understand it "race" in 42 USC 1981 & 1982 has been interpreted (consistently
with late 1800s practice) to include ethnicity.
Eugene
Michael Masinter writes:
> The question seems as likely to arise when one party to the agreement
> seeks a judicial rather than an arbitral forum, the other party moves
> to compel arbitration, and the suing party opposes enforcement of the
> arbitration clause on the ground that the arbitral procedure, as
> structured, is unconscionable or otherwise unenforceable. See the
> briefs and argument in AT&T Mobility, LLC v. Concepcion, recently
> argued in SCOTUS for a discussion of whether courts may on
> unconscionability grounds refuse to enforce arbitration agreements.
> http://www.scotusblog.com/case-files/cases/att-mobility-v-concepcion/
>
> I think the more interesting question is whether a court must decline
> to enforce the agreement, since the answer would seem to have a great
> deal to do with the state action doctrine in its application to the
> equal protection rights of excluded witnesses. Were the witness
> exclusion racially based, 42 USC 1981 (a) likely would make it
> judicially unenforceable without regard to the resolution of the state
> action question, but although race is broadly construed under section
> 1981, its provisions have never been construed to reach sex
> discrimination.
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