Arbitration's Counter-Narrative: The Religious Arbitration Paradigm

59 Pages Posted: 17 Oct 2014 Last revised: 10 Jul 2015

See all articles by Michael A. Helfand

Michael A. Helfand

Pepperdine University - Rick J. Caruso School of Law

Date Written: March 10, 2015

Abstract

Arbitration theory and doctrine is dominated by an overarching narrative that conceptualizes arbitration as an alternative to litigation. Litigation, on the one hand, is more procedurally rigorous, but takes longer and costs more; arbitration, on the other hand, is faster and cheaper, but provides fewer procedural safeguards. But notwithstanding these differences, both arbitration and litigation ultimately serve the same purpose: resolving disputes. Indeed, this narrative has been pervasive, becoming entrenched not only in recent Supreme Court decisions, but also garnering support from both arbitration critics and supporters alike.

This Article, however, contends that this exclusive focus on arbitration’s standard narrative has left unexplored a competing arbitral narrative — a counter-narrative of sorts — that examines the contexts in which arbitration differs from adjudication because it aims to promote an alternative set of values beyond simply resolving disputes. And this failure has prevented legal doctrine from accounting for contexts where arbitration has jurisgenerative aspirations and thereby seeks to amplify the autonomy of parties to pursue shared values in the context of binding dispute resolution.

In response, this Article considers a paradigmatic example of arbitration’s counter-narrative: religious arbitration. When parties agree to religious forms of arbitration, they select religious authorities to resolve disputes in accordance with religious law. And, as a result, these forms of arbitration are embraced not solely as a utilitarian mechanism to resolve a dispute, but because they enable parties to resolve a dispute in accordance with shared religious principles and values. In turn, if successfully incorporated into current legal doctrine, this arbitral counter-narrative holds the hope of unlocking the transformative potential of arbitration, enabling parties to employ arbitration not simply as an expedient venue for resolving disputes, but as an alternative forum that can breathe life into mutually shared values.

Keywords: arbitration, litigation, arbitral narrative, adjudication, dispute, religious arbitration, values, religious law

Suggested Citation

Helfand, Michael A., Arbitration's Counter-Narrative: The Religious Arbitration Paradigm (March 10, 2015). Yale Law Journal, Vol. 124, Pepperdine University Legal Studies Research Paper No. 2014/25, Available at SSRN: https://ssrn.com/abstract=2510447

Michael A. Helfand (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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