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

64 Duke Law Journal 769 (2015)
Pepperdine University Legal Studies Research Paper No. 2015/4
Duke Law School Public Law & Legal Theory Series

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, 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, co-religionist 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 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 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 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 many Establishment Clause doctrines, would allow courts to surmise parties’ intents and distinguish commercial from religious substance. Empowering the intent of co-religionist parties and limiting the doctrinal developments that threaten to undermine co-religionist commerce can secure marketplace dealings without intruding upon personal faith.

Number of Pages in PDF File: 54

Keywords: formalism, Establishment Clause, religion, contextualism, co-religionist commerce, neutral principles of law

JEL Classification: K12, K20, K30

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Date posted: March 3, 2014 ; Last revised: March 30, 2015

Suggested Citation

Helfand, Michael A. and Richman, Barak D., The Challenge of Co-Religionist Commerce (November 13, 2014). 64 Duke Law Journal 769 (2015); Pepperdine University Legal Studies Research Paper No. 2015/4; Duke Law School Public Law & Legal Theory Series. Available at SSRN: http://ssrn.com/abstract=2403877

Contact Information

Michael A. Helfand (Contact Author)
Pepperdine University School of Law ( email )
24255 Pacific Coast Highway
Malibu, CA 90263
United States
Barak D. Richman
Duke University - School of Law ( email )
210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7244 (Phone)
919-613-7231 (Fax)
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