I have not seen the question litigated, and because the arbitral
parties are the only parties likely to raise the witness's rights, the
absence of litigation is not surprising. But racially based witness
disabilities were a badge or incident of servitude, and therefore
within the reach of congressional legislative power under the
thirteenth amendment, and the textual expansion of section 1981 in the
Civil Rights Act of 1991 to private conduct would seem to reach
judicial enforcement of such agreements.
Although race is broadly construed under section 1981, the rationale
for the broad construction is that historically, animus based
discrimination arises from the discriminator's and society's treatment
of ethnicity as equivalent to race. Whether that rationale requires
treatment of religiously based discrimination as ethnic and racial
discrimination if its roots are not based on animus but rather on
religious doctrine is also an interesting question; I don't think
Shaare Tefila v. Cobb answers that question.
In any event, I think section 1981 (a) and (c) do make the argument
for non-enforcement easier when the exclusion is race rather than sex
based.
Michael R. Masinter 3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu 954.262.3835 (fax)
Quoting "Volokh, Eugene" <vol...@law.ucla.edu>:
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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