Faith-Based Private Arbitration as a Model for Preserving Rights and Values in a Pluralistic Society

This article discusses private arbitration in religious and values-oriented communities. Using contract law as the foundation for arbitration law, religious arbitration panels can function almost like courts so long as the government can assure basic fairness and proper procedures, while allowing the parties to resolve their private dispute as the parties wish. This article explains that to be enforced, these private courts must meet the procedural requirements set by the Federal Arbitration Act, but American arbitration law is not generally concerned with the substantive law used by these tribunals, although this article recommends practices that religious tribunals ought to adopt as best practices. Consensual arbitration under religious auspices of private disputes ought to be allowed to flourish, as it is consistent with the historic policies of religious freedom in the United States

Multicultural ADR and Family Law: A Brief Introduction to the Complexities of Religious Arbitration

Recent polls indicate that the U.S. population is getting less religious and more secular. This seems to mirror the nation’s— and its laws’—movement away from reflecting certain traditional values. While these movements have left some members of the religious population in a precarious situation, surrounded by a society whose values are changing before their eyes, it has also caused the religious to cling tighter to their respective faiths and become more entrenched in the values they assert. As the government has, slowly but surely, aligned itself with the popular shift away from traditional religious values, the pleas of the religious to keep their principles interlaced with the laws that govern the country have fallen on deaf ears. Therefore, instead of looking to the government to continue weaving religion into society or proselytizing to recruit external followers, religions and their faithful have begun to look inward for ways to bridge the gap between what they believe and what society believes. Indeed, over the last sixty years, the substance of American law has come to reflect secular principles, rather than the religious values upon which it was historically based. The law has grown increasingly secular, with a sharper focus on the religiously neutral principles of equality and fairness, rather than the historical commitment to traditional values. This development coincides with significant demographic changes: there is no longer a majority religion in the United States. While most Americans still identify as Christians, no denomination or sect predominates, and most Christians or Jews no longer look to their faith for their basic values. Moreover, since the mid-twentieth century, the United States has become more of a multicultural society. It is increasingly comfortable with multiple expressions of individual and sub-group identity coexisting in the public sphere. In sociological terms, the metaphor of the ‘melting pot’ has been replaced by a salad bowl. So while the culture wars still sometimes flare, religious communities have begun to realize that they are all minority groups. Secular law is no longer broadly reflective of traditional values, nor will this change in the foreseeable future. Whether this has become apparent to everyone or not, it is motivating religious communities to step outside the framework of secular law into the realm of private dispute resolution in order to preserve their communities. Even more importantly, the common social fabric has shifted to a secular model—gay marriage is just the most public crier of this change—which predominates in every value-driven public discussion, leaving traditional religious communities feeling less and less comfortable with general social mores and, at the same time, increasingly disconnected from common public discourse or law. Although religious groups may not be able to influence secular law as much as they once did, they have changed their approach, focusing on developing their own internal legal bodies. This follows key developments in the U.S. legal system

Faith-Based Private Arbitration as a Model for Preserving Rights and Values in a Pluralistic Society

This article discusses private arbitration in religious and values-oriented communities. Using contract law as the foundation for arbitration law, religious arbitration panels can function almost like courts so long as the government can assure basic fairness and proper procedures, while allowing the parties to resolve their private dispute as the parties wish. This article explains that to be enforced, these private courts must meet the procedural requirements set by the Federal Arbitration Act, but American arbitration law is not generally concerned with the substantive law used by these tribunals, although this article recommends practices that religious tribunals ought to adopt as best practices. Consensual arbitration under religious auspices of private disputes ought to be allowed to flourish, as it is consistent with the historic policies of religious freedom in the United States

The Hidden Influence of Jewish Law on the Common Law Tradition: One Lost Example

Professor Berman is undoubtedly correct that the surviving literature shows little such influence of Jewish jurisprudence. Over the course of numerous conversations I had with Professor Berman at Emory, we discussed another possibility, namely that the Jewish tradition indeed had a distinct influence on the common law; however, due to the general lack of enthusiasm for the Jewish legal tradition throughout the medieval Christian world, even when Jewish sources were consulted, they were not cited. I wish to show what I think is one such example --the enigmatic origins of the common law rule that the holder of lost property might be a bailee for hire and not a gratuitous bailee

Cloning People: A Jewish Law Analysis of the Issues

This Article is an attempt to create a preliminary and tentative analysis of the technology of cloning from a Jewish law perspective. Like all preliminary analyses, it is designed not to advance a rule that represents itself as definitive normative Jewish law, but rather an attempt to outline some of the issues in the hope that others will focus on the problems and analysis found in this Article and will sharpen or correct that analysis. Such is the way that Jewish law seeks truth. In the case of cloning-as with all advances in reproductive technology- the Jewish tradition is betwixt and between two obligations. On one side is the general Jewish obligation to help those who are in need, and particularly compounded by the specific obligation to reproduce, thus inclining one to permit advances in reproductive technologies that allows those unable to reproduce to, in fact, reproduce. On the other side is the general inherent moral conservatism associated with the Jewish tradition\u27s insistence that there is an objective morality, and that not everything that humanity wants or can do is proper. This specifically manifests in the areas of sexuality where the Jewish tradition recognizes a number of doctrines which restrict sexual activity. In addition, the Jewish tradition advises one to pause before one permits that which can lead down a variety of slippery slopes whose consequences one does not fully understand, and whose results we cannot predict. It is the balance between these various needs that drives the Jewish law discussion of all assisted reproductive technology, and it is in that spirit that this is intended to be a preliminary analysis of the problems of cloning. This Article argues that while there are a variety of technical issues related to cloning that have to be addressed, fundamentally cloning is a form of assisted reproduction-no different from artificial insemination or surrogate motherhood-which, when technologically feasible, should be made available to those individuals in need of assisted reproduction

A Jewish Law View of World Law

This paper will explore two basic Jewish law questions which reflect on the technical issues related to Professor Berman\u27s world law proposal. The first question asks how Jewish law views public international law and whether public international law can be incorporated into the corpus of Jewish law. The second question asks how Jewish law generally incorporates domestic (municipal) law into Jewish law and if this classical paradigm of integration assists in formulating a Jewish law view of world law. To the best of my knowledge, the first matter is a question of nearly first impression in the Jewish law literature

The Return of Lost Property According to Jewish & Common Law: A Comparison

This article compares the legal rules and jurisprudence of the American common law and Jewish law in the area of finding and returning lost or abandoned property, illustrating the interplay between the purely legal and ethical components of the respective legal systems. Surprisingly enough, the differences between the two systems are not usually significant; they follow the same basic legal principles, and typically lead to the same results. There are, however, two major exceptions: Jewish law imposes a duty to rescue the lost property of one\u27s neighbor, while the common law does not require that one initiate the process by retrieving the article. Thus according to Jewish law, when one happens to stumble across lost property, one must intervene to retrieve it; according to the common law one need not. Second, Jewish law imposes ethical duties as part of its legal mandate, a practice the common law does not follow. This article approaches the issues raised in returning lost property in the order they are encountered as property is lost or found. The first two sections discuss the issue of defining lost property ; the next four sections discuss the obligations of the finder; the subsequent two sections discuss the legal relationship between the finder and the original owner; and the last section discusses miscellaneous issues related to lost property