The Challenge of Co-Religionist Commerce
Michael A. Helfand
Pepperdine University School of Law
Barak D. Richman
Duke University - School of Law
March 3, 2014
Duke Law Journal, Forthcoming
This Article addresses the rise of “co-religionist commerce” in the United States — that is, the explosion of commercial dealings that take place between co-religionists who intend their transactions to achieve both commercial and religious objectives. To remain viable, co-religionist 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, co-religionist commercial agreements must be translated into secular terminology if they are to be judicially enforced. However, religious goods and services often 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 co-religionist commercial agreements. However, contextual approaches to co-religionist 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 Establishment Clause Creep, which refers to the increasing judicial reticence to adjudicate disputes situated within a religious context. Together, these two legal developments prevent courts from using context to interpret and enforce co-religionist commercial agreements.
This Article proposes that courts preserve co-religionist commerce with a limited embrace of contextualism. A thorough inquiry into context, which is discouraged by both New Formalist and Establishment Clause doctrines, would allow courts to devise parties’ intent and distinguish commercial from religious substance. Liberating the intent of co-religionist parties and limiting the doctrinal developments that can undermine co-religionist commerce can secure marketplace dealings without intruding upon personal faith.
Number of Pages in PDF File: 52
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: June 10, 2014
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