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Snatching Policy from Hysteria: Sharia and the FAA

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3 Responses

  1. A.J. Sutter says:

    What about when religious law and state law are in conflict — shouldn’t there be a very clear public policy exception, so that review is available?

    Think of the New York get (Jewish divorce document that the husband must present to the wife) laws: the statute was enacted to permit a civil divorce where a husband refuses to grant a divorce under religious law. As I understand it, thanks to the statute the wife can now obtain a civil divorce even if the husband refuses to cooperate, but without a get there isn’t a religious divorce (so I assume she’d have a hard time finding a rabbi to officiate if she wants to re-marry, as long as husband #1 remains obstinate).

    If the parties now have a pre-nup with an arbitration clause that says the divorce will be governed by halachic law, does that mean the wife couldn’t even obtain a civil divorce? I’m not sure how things work in NY: under no-fault, would her ability to get the civil divorce normally be automatic after the lapse of time, as in CA? If so, could the husband challenge that in court by pointing to the arbitration clause?

    Another issue is what if there are local variants of religious law? Could the couple stipulate in a pre-nup to arbitration bound by the jurisprudence of the Shari’a court in the UAE that held that wife-beating is OK if no visible marks are made? (Well, we’d say it was dicta in the recent case, but assume for the sake of argument either that the distinction is immaterial or that it was a holding.) Maybe that wouldn’t impact enforcement of the criminal law against domestic violence, but what if the contract said that if the wife ever mentioned domestic violence to the police that she’d forfeit all rights to alimony and child support?

    I kind of doubt that a “subtle approach” to arbitration in these cases is really the right one — seems like either there should be some very clear limitations put onto arbitration governed by religious law, or else take the Canadian approach. Though in the loony death-spiral into which US politics seems recently to have swooned, I wonder if either of those alternatives has a prayer.

  2. Michael Helfand says:

    I definitely agree that a subtle approach is necessary to apply the Federal Arbitration Act to religious arbitration. I’m in the process of drafting an article on the topic, which I’m hoping to submit in the spring entitled “Submitting Disputes for Religious Adjudication: The Enforceability of Religious Arbitration Awards.” For those interested, an abstract is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=990029. It will also be the topic of conversation for Jewish Law Section’s panel at the annual AALS Conference, entitled “Rabbinical Courts in American Law,” where I’ll have the pleasure of speaking alongside Douglas Laycock and Michael Broyde.

  3. Lawrence Cunningham says:

    Michael Helfand has an interesting follow-up post at:

    http://lawreligionethics.net/2010/10/the-challenge-of-religious-arbitration/

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