2019 Wis. L. Rev. 531 (2019)
The Case for American Muslim Arbitration

handle is hein.journals/wlr2019 and id is 543 raw text is: 









   THE CASE FOR AMERICAN MUSLIM ARBITRATION

                              RABEA   BENHALIM*

           This Article advocates for the creation of Muslim arbitral tribunals in
      the United States. These tribunals would better meet the needs of American
      Muslims, who  currently bring their religious disputes to informal forums
      that lack transparency. Particularly problematic, these existing forums often
      apply legal precedent developed in majority-Muslim nations, without taking
      into consideration the changed circumstances of Muslim living as minorities
      in the United  States. These  interpretations of Islamic law can  have
      especially negative impacts on  women.   American   Muslim  arbitration
      tribunals offer the potential to correct these inadequacies. Furthermore, a
      new arbitral system could better meet the needs of sophisticated parties, like
      commercial entities, by supplying arbitrators able to navigate the intricacies
      of both Islamic and American law.
           To  be sure, a new arbitral system would not be a perfect solution.
      Like other forms of religious arbitration, and like commercial arbitration,
      the new system would provide benefits, but also create potential drawbacks.
      The benefits would  include promoting freedom  of contract and  subject
      matter specialization and reducing the burden on civil courts. The potential
      drawbacks  include imbalances  of  power  between  contracting parties,
      adhesion contracts, and  disenfranchisement of vulnerable  populations.
      Taking these benefits and concerns into consideration, American Muslim
      arbitration needs to be structured with various internal safeguards to protect
      vulnerable populations and ensure the decision to arbitrate is voluntary,
      especially in family law cases.
           The Article makes one further claim: Muslim arbitration in the United
      States would provide a positive influence on the development of Islamic
      law. At a minimum, the creation of these tribunals should not be dismissed
      based on preconceived, Islamophobic notions of how Islamic law might be
      enforced in the United States, which are likely founded on misperceptions.
      But what  is more, by moderating  precedents developed in other, more
      unequal cultural settings, the new tribunals could aid the development of
      21st century Islamic law.

Introduction                              ......................................532
I.      American   Muslim Arbitration in Context.....         ............539
        A.   Past Controversies.           ..........................539
        B.   Multiculturalism   Theories   on Legal  Pluralism.............. 542
        C.   The  Muslim   Arbitration  Tribunal  ................ 543
        D.   American   Muslims-A Unique Demographic ..............546
        E.   The  Development of Islamic Institutions as a Path to
             Dual  System   Fluency                    ...................   549


      *      William H.  Hastie Fellow, University of Wisconsin  Law  School. For
helpful comments  and conversations, I thank Asifa Quraishi-Landes, Miriam Seifter,
Keith Findley, Gwendolyn Leachman,  Ciro Faienza, Tasnim Benhalim, and Sarah Hall.
I am also grateful to the University of Wisconsin Law Faculty for sharing their time
and thoughts during a faculty workshop. Any errors are mine.

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