The Challenge of Co-Religionist Commerce
Michael A. Helfand
Pepperdine University School of Law
Barak D. Richman
Duke University - School of Law
November 13, 2014
Duke Law Journal, Forthcoming
This Article addresses the rise of “coreligionist commerce” in the United States — that is, the explosion of commercial dealings that take place between coreligionists who intend their transactions to achieve both commercial and religious objectives. To remain viable, coreligionist commerce requires all the legal support necessary to sustain all other commercial relationships. Contracts must be enforced, parties must be protected against torts, and disputes must be reliably adjudicated.
Under current constitutional doctrine, coreligionist commercial agreements must be translated into secular terminology if they are to be judicially enforced. But many religious goods and services cannot be accurately translated without religious terms and structures. To address this translation problem, courts could make use of contextual tools of contract interpretation, thereby providing the necessary evidence to give meaning to coreligionist commercial agreements. However, contextual approaches to coreligionist commerce have been undermined by two current legal trends — one in constitutional law, the other in commercial law. The first is the New Formalism, which discourages courts from looking to customary norms and relational principles to interpret commercial instruments. The second is what we call Establishment Clause Creep, which describes a growing judicial reticence to adjudicate disputes situated within a religious context. Together, these two legal developments prevent courts from using context to interpret and enforce coreligionist commercial agreements.
This Article proposes that courts preserve coreligionist commerce with a limited embrace of contextualism. A thorough inquiry into context, which is discouraged by both New Formalist and many Establishment Clause doctrines, would allow courts to surmise parties’ intent and distinguish commercial from religious substance. Empowering the intent of coreligionist parties and limiting the doctrinal developments that threaten to undermine coreligionist commerce can secure marketplace dealings without intruding upon personal faith.
Number of Pages in PDF File: 57
Keywords: formalism, Establishment Clause, religion, contextualism, co-religionist commerce, neutral principles of law
JEL Classification: K12, K20, K30Accepted Paper Series
Date posted: March 3, 2014 ; Last revised: November 14, 2014
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