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Thursday, November 13, 2014

Religion's Private Law Turn II: No Sunday Arbitration

Yesterday I posted about what I've called religion's "private law turn," where questions at the intersection of law and religion increasingly hinge on applications of private law as opposed to public law.  I also promised examples so here's my first--one that I take up more fully in a forthcoming piece, Arbitration's Counter Narrative: The Religious Arbitration Paradigm, 124 Yale L. J. (forthcoming 2015).

Section 5 of New York's Judiciary Law reads as follows: "A court shall not be opened, or transact any business on Sunday."  Fair enough you say.  But in the past year or so, two New York courts (here and here) have applied this law to rabbinical court arbitrations--arbitrations addressing commercial disputes--by employing the following logic: (1) A judicial proceeding cannot take place on Sunday; (2) “Arbitration is a judicial proceeding and arbitrators perform a judicial function"; and (3) therefore, “the arbitration proceedings and award herein are void upon the ground that at least one hearing was held on a Sunday."  Based on this logic, both courts vacated arbitration awards where arbitration proceedings were conducted on Sunday.  Indeed, there's precedent for these decisions in New York going back nearly 200 years.

Now some have argued these decisions run afoul of the First Amendment.  Maybe it does (although I'm skeptical this claim wins given how the Supreme Court has treated Sunday closing laws generally).  But more than a constitutional problem, what this case misses is the way in which some forms of arbitration--specifically religious arbitration--are not equivalent to "judicial proceedings."  It may be true that much arbitration is functionally equivalent to litigation--albeit faster and cheaper--in that both are mechanisms to resolve disputes between parties (Daniel Markovits has referred to this view as the "displacement thesis" and it has been adopted by and large by courts and scholars).

But not all arbitrations are simply about resolving a dispute.  In particular, when religion and commerce meet under the rubric of religious arbitration, the parties have not selected the forum with the sole objective of identifying a more expedient and inexpensive version of litigation.  Religious arbitration entails submitting a dispute to religious authorities for resolution in accordance with religious law.  And a decision to select such a forum to resolve a dispute has much less to do with expedient dispute resolution and more to do with the shared commitments and values of the parties.  In this way, religious arbitration is often part commerce and part religion; and to simply conflate such arbitrations under the rubric of judicial proceedings fails to consider the unique objectives at stake in the context of religious arbitration.  

Indeed, in this way, these Sunday arbitration cases represent a classic mistake courts make when encountering religion's private law turn.  Instead of unpacking the unique dynamics at stake when religion and commerce overlap, courts reflectively invoke familiar categories--a mistake in this case not of constitutional law, but of a arbitration law.

Posted by Michael Helfand on November 13, 2014 at 12:25 AM in Judicial Process, Religion | Permalink


IMHo, this is a poor example. The disputes we are seeing now, and the major offensive line by the right, is whether people can use a claim of religious belief to screw people over.

Posted by: Barry | Nov 13, 2014 8:06:55 AM

There is reference to "two" New York courts that decided the matter. In one, a "reply affirmation" is cited to state the party agreed a Sunday would disqualify, but she challenged that it was a Sunday. The second ruling noted the Sunday concern as but one problem.

Anyway, if we are deciding a dispute here using a certain sort of dispute procedure that follows certain basic guidelines, it seems appropriate to include it under the rubric of "judicial." The fact it is "part commerce and part religion" etc. doesn't change that. Secular judicial proceedings are also a basis of using "shared commitments and values." It is a tad ironic that Jewish law, which has more of a judicial character than many things, is excepted here.

I don't agree with the first comment -- questions of religion and the law will raise a myriad of issues and it's fine to discuss things of this nature. I say this as someone who is probably sympathetic with Barry's views of individual disputes here, if perhaps not quite so bluntly.

Posted by: Joe | Nov 13, 2014 11:30:39 PM

Agudath Israel of America's amicus brief (linked from "Now SOME have argued . . . ") contains a message of thanks to two law students who researched the brief. That thanks is at the bottom of the cover page. Is either part of this (thanking law student researchers and making such thanks so prominent in the brief) common practice?

Posted by: SykesFive | Nov 14, 2014 9:43:22 AM

I should think that concerns of religion are tangential to this problem. Every question of arbitration---every single one---involves drawing a balance, or resolving a tension, between a model that sees arbitration (1) as an exercise in private governance and self-determination, and a model that sees it (2) as an adjudicative exercise proceeding through contradictory positions to a binding judgment. It's obviously both, which is why I speak of "resolving tensions." So: Can the parties entrust to their arbitrators the power to create a new contract between them, although courts won't enforce "agreements to agree"? (Yes). Can the parties choose arbitrators who are clearly partial to one of the parties, although courts have to maintain scrupulous neutrality? (Yes).

The problem with the New York cases is simply that they draw the balance in an ignorant and inept way. What possible justification is there here to interfere with party autonomy---what possible externalities exist to constrain party choice? That would appear to be the only question, not one of terminology. (If every statutory reference to "judicial proceedings" or "courts" was held to apply to arbitration, we wouldn't recognize what the arbitral process looks like.)

Posted by: Alan Rau | Nov 15, 2014 5:33:43 PM


Thanks so much for your comment and for weighing on this question. I think considering these cases requires first beginning from the assumption that there is some secular value in prohibiting certain dispute resolution conduct on Sunday--at least, that's the assumption of the NY Judiciary Law. In that way, it presumably functions like Sunday closing laws, which prohibit certain types of transactions on Sunday even if both parties are willing to enter into the transaction. The thought is that prohibiting parties' autonomy advances some legitimate secular value (I, to be sure, am skeptical of this claim in the Sunday closing law context, but that's how SCOTUS has justified the laws from a constitutional perspective and I presume the same logic would extend to NY's judiciary law).

Given that fact, the question is--as you put it--how to "resolve the tension" within arbitration. I think the standard narrative typically does so by evaluating arbitration as a single category and then tries to determine which facet of arbitration (i.e. private contract vs. adjudication) is most salient in a particular context. My claim here is that arbitration itself needs to be more properly calibrated depending on the values and objectives at stake in a particular form of arbitration; or, in your terminology, resolving the tension within arbitration might vary not just depending on the legal context, but also based on the nature of the specific form of arbitration. In this case, even if we take as given the state's secular interest in prohibiting certain forms of dispute resolution on Sunday, we might be less inclined to do so for the entire category of arbitration given that different forms of arbitration serve different objectives. Thus, the state's interest in prohibiting certain forms of dispute resolution on Sunday ("judicial proceedings") could be legitimately extended to some arbitrations--depending on how you define the scope of the state's secular interest here. But courts should be more sensitive to whether the form of arbitration is primarily about dispute resolution as opposed to other values.

Posted by: Michael Helfand | Nov 16, 2014 7:25:40 AM

"But courts should be more sensitive to whether the form of arbitration is primarily about dispute resolution as opposed to other values."

If they are, mere usage of religion shouldn't be the dividing line, both because some parties will still largely be concerned with dispute resolution (while using religious rules) while others won't be, but their concern would be philosophical or other values of a nonreligious nature.

I think the Sunday issue might be something of a "joker" here.

Posted by: Joe | Nov 16, 2014 11:12:15 AM

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