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Wednesday, November 12, 2014

Religion's Private Law Turn

With the continued discussion of Hobby Lobby (for the latest, check out Elizabeth Sepper's response to Paul's Hobby Lobby Momement), it is hard not to notice an increasing focus on the importance of commerce--and in turn commercial law--when it comes to conflicts between law and religion.  Maybe one way to think about this is that for every Town of Greece v. Galloway, we have a Hosanna-Tabor v. EEOC, a Hobby Lobby v. Burwell, and now an EEOC v. Abercombie & Fitch.  The religion clauses continue, of course, to play a fundamental and central role in debates over religious accommodation and the like; but clashes between the aspirations of religion and the demands of law seem to increasingly spill into the commercial sphere.  And, as this trend continues, I see more and more of these clashes hinging on how various private law doctrines apply when religion and commerce collide.

As Paul has expressed, much of this seems to arise from a growing sense that the commercial sphere is not just about commerce.  In our forthcoming article "The Challenge of Co-Religionist Commerce," 64 Duke L.J. (2015), Barak Richman and I try to outline some of this dynamic under the rubric we term "co-religionist commerce," which we characterize as "commercial dealings that take place between co-religionists who intend their transactions to achieve both commercial and religious objectives" (and for a recent response to our article, check out Nate Oman's piece here).  The core, if unstated, intuition of our article is that some of the most significant challenges on the horizon--as religion and commerce continue to intersect--flow not from interpretation of constitutional doctrine, but from application of private law rules to conduct that is simultaneously religious and commercial.  This intuition applies in a wide range of contexts, from corporate law to contract law to arbitration law (to name some of my favorites).

In my next couple of posts, I'll try to provide some concrete examples of this dynamic--and some of the complex questions they raise--as I explore what I see as religion's growing turn to private law.

Posted by Michael Helfand on November 12, 2014 at 12:52 AM in Religion | Permalink

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