Between Law and Religion: Procedural Challenges to Religious Arbitration Awards

23 Pages Posted: 19 May 2014 Last revised: 11 Feb 2015

Date Written: May 12, 2014

Abstract

This Essay presented at the Sharia and Halakha in America Conference explores the unique status of religious law as a hybrid concept that simultaneously retains the characteristics of both law and religion. To do so, the Article considers as a case study how courts should evaluate procedural challenges to religious arbitration awards. To respond to such challenges, courts must treat religious law as law when defining the contractually adopted religious procedural rules and treat religious law as religion when reviewing precisely what the religious procedural rules require. On this account, constitutional and arbitration doctrine combine to insulate religious arbitration awards from judicial even on procedural grounds, leaving courts to confirm religious arbitration awards without knowing whether the arbitrators complied with the contractually required procedural safeguards. This outcome - emblematic of the Janus-faced nature of religious law - gives us good reason to reevaluate how U.S. law treats religious law, encouraging us to de-mystify religious law by seeing it more like law and less like religion.

Keywords: religious arbitration, religious law, process

JEL Classification: K12, K40, K41

Suggested Citation

Helfand, Michael A., Between Law and Religion: Procedural Challenges to Religious Arbitration Awards (May 12, 2014). 90 Chicago-Kent Law Review 141 (2015); Pepperdine University Legal Studies Research Paper No. 2014/15. Available at SSRN: https://ssrn.com/abstract=2435998

Michael A. Helfand (Contact Author)

Pepperdine University School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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