Author ORCID Identifier

Michael Broyde 0000-0001-9960-7256

Document Type

Article

Publication Date

2023

Keywords

Alternative dispute resolution, Federal Arbitration Act, LGBTQ+, Religious arbitration tribunals, Unconscionability, Enforcement of contracts

Abstract

The first section of this Article will outline the ways in which communities—religious and other groups, including the LGBTQ+ community—have used and continue to use private law to achieve meaningful dispute resolution. By diminishing the role of civil courts to review arbitrations, parties may tailor their resolutions to prioritize community values that may be misaligned with secular society. Outside of historical religious usage, private law offers a field ripe for jurisprudential growth. Through alternative dispute resolution, affinity-based minority groups can pave an avenue towards justice which accurately reflects the unique values of their lived experiences.

The second section will provide a direct examination of two legal doctrines proffered by opponents of religious arbitration: the Bixler religious exit right to contract and the expansion of the state action doctrine through the Reverse Entanglement principle. Both solutions are meant to protect against the unwitting waiver of state and federal rights of weaker parties to contract, but both would effectively abolish religious dispute resolution within the United States. Such rights waivers exist in the commercial arbitration context generally and also involve relationships with inherent power imbalances: consumer and company, employee and employer, etc. There are serious problems with abuse under arbitration law, but we argue that the solutions to those problems reside outside constitutional First Amendment jurisprudence. Furthermore, allowing exit from contracts on First Amendment grounds is a radical change in contract law with countless implications outside of arbitration.

Instead, we propose that unconscionability be used more frequently against abusive arbitration clauses, be they secular or religious in nature. This doctrine is the workhorse of contract law’s defenses and offers a thoroughly faith-neutral way of determining bargaining naughtiness. Further, we propose expanding unconscionability through the state action doctrine. There should be a lower standard of unconscionability based on the old doctrine of privity, where arbitration clauses impact non-parties to an agreement.

The Bixler religious exit right and the proposed Reverse-Entanglement principle represent a conflation between secular traditions: it proposes a French laïcité solution (which aims to keep religion out of public life) to an American religion pluralist problem (which allows religion to participate on the same terms as all other customs). To us, establishment of secularism is another form of religious establishment, and prohibiting the blossoming use of contract law within faith-based minority communities will not solve the culture wars or bolster contract defenses. We propose allowing both secularism and religion access to the public sphere, and we believe that faith-based extrajudicial tribunals create the path for true American pluralism.

First Page

17

Publication Title

New York University Annual Survey of American Law

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