The Israelite religious centre of Kuntillet Ajrud, Sinai

Kuntillet 'Ajrud, on the Negev-Sinai border, is a religious centre or a way-side shrine from about 800 B.C. The site contains a main rectangular building with a white plastered Bench-room, in which most of the finds were made. The most important of these are inscriptions and drawings on pottery vessels, on wall plaster and stones. The motifs of the drawings are closely connected with the inscriptions and other finds which clearly have a religious character. They too have, in our view, a cultic meaning.peer-reviewe

The Judicial Grassroots of the Arbitration Revolution

The “arbitration revolution”—the meteoric rise in the use of arbitration in the United States—is commonly imputed to the Supreme Court’s unilateral and ideologically driven expansion of the Federal Arbitration Act (FAA). The portrayal of the FAA’s evolution as a campaign launched by a Supreme Court that is out of touch with society and with the judicial system over which it presides usefully serves to delegitimize both this one-hundred year-old statute and arbitration more generally. This Article argues that the popular description of the Supreme Court as the sole instigator of the “arbitration revolution” is misleading because it conveniently ignores a critically important player in the FAA’s judicial development—the lower courts. This Article offers a novel, alternative account of the judicial evolution of the FAA. It demonstrates that, contrary to conventional wisdom, the current judicial understanding of the FAA was not created by the Supreme Court out of whole cloth. Rather, some of the most fundamental, and controversial, arbitration principles set out by the Supreme Court were in fact rooted in the lower courts’ interpretation of the FAA and these courts’ own policy preferences regarding arbitration, rather than in the Supreme Court’s unilateral rewriting of arbitration law. This Article revisits five fundamental arbitration principles set out in Supreme Court decisions rendered between 1967 and 2001—the separability principle, the principle that the FAA reflects a federal policy favoring arbitration, the principle that the FAA preempts state law in state courts, the principle that statutory claims are arbitrable under the FAA, and the principle that employment disputes are arbitrable under the FAA. These five principles seem revolutionary and have been criticized as such. However, this Article shows that in establishing all of them the Supreme Court adopted an interpretation of the FAA that had already been accepted by at least some, and at times by the majority, of the Circuit Courts of Appeals as well as by other lower federal and state courts. Therefore, the Court was simply reacting to jurisprudential development already taking place in the lower courts. Accusing the Supreme Court of single-handedly producing the woes associated with modern arbitration does little more than fuel a counterproductive anti-arbitration movement that operates to delegitimize arbitration rather than to improve it

Artificial Waterways in International Water Law: An American Perspective

Freshwater is a fleeting natural resource that can never be fully harnessed or appropriated by humans. Nonetheless, under both domestic and international law, freshwater is a regulated resource and legal principles have developed to govern its allocation and use. But what of freshwater that, rather than flowing naturally, has been made to so flow by human intervention? Should artificial waterways be subject to the same legal principles that govern the ownership and use of waterways that are naturally occurring? This Article takes a first step toward clarifying when and how international water law principles applicable to natural transboundary waterways should be applied to artificial transboundary waterways. While the Article focuses on artificial waterways in the international context, it approaches these questions from a domestic water law lens. The Article suggests that general insights may be drawn from the experience of domestic courts in solving water-related problems that exist also at the international level but that international law does not currently address. Specifically, the Article examines the treatment of artificial waterways in American water law as a case study. The Article first discusses artificial waterways in the international context, examining international court decisions, treaties, and other cross-border regimes relevant to the regulation of transboundary artificial waterways. It concludes that there is no uniform approach in international water law to the treatment of transboundary artificial waterways. The Article then turns to American water law, examines the legal definition of artificial waterways, and identifies two basic principles that have guided American courts in determining the legal status of such waterways: the physical attributes of the artificial waterway and whether it has legally become a natural watercourse. The Article suggests that these two principles could also inform the regulation of transboundary artificial waterways and the resolution of disputes arising from their use, and applies them to the Silala case currently before the International Court of Justice (ICJ)

Environmental Justice in the United States: The Human Right to Water

Many low-income communities, communities of color, and indigenous communities in the United States are suffering from unequal access to safe and affordable water. This is partially the result of an ineffective and fragmented legal framework governing water issues in the country. In addition, the notion of a human right to water and sanitation, accepted internationally to reinforce and protect human needs related to water, has yet to be meaningfully recognized in the United States. This article sets out, first, to examine the legal framework governing access to freshwater in the United States and the concerns underlying the reluctance of the federal government and most states to acknowledge the human right to water and sanitation as a legal right. The article then assesses the potential of such recognition to promote laws and policies that would ensure water justice for vulnerable or disadvantaged communities across the United States

In Defense of Moses

(Excerpt) In 1925, Congress enacted a short statute to make arbitration agreements in maritime transactions and interstate commerce “valid, irrevocable, and enforceable.” Yet the Federal Arbitration Act’s (FAA) simple objective of facilitating the resolution of disputes outside of the courtroom has proven much easier to declare than to implement in practice. In the century since its enactment, the FAA has become a frequently litigated statute and the subject of 59 opinions of the Supreme Court, the majority of which have reversed lower courts’ interpretations of the Act. The Supreme Court’s FAA jurisprudence has not only been abundant but also controversial. For instance, the Court’s holdings that the Act applies in both federal and state courts and in employment disputes, and that it preempts contradictory state law, are frequently accused of being overly expansive and prejudicial to weaker individuals such as employees and consumers, prompting initiatives for legislative amendments of the FAA. In this article I intend neither to sanction nor to dispel these accusations. Instead, on the occasion of its 40th anniversary, I revisit the Supreme Court’s seminal decision in Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp. (hereinafter Moses). A renewed examination of this decision is timely and necessary given growing calls for its reconsideration. In Moses, the Supreme Court held that § 2 of the FAA, which mandates that arbitration agreements “shall be valid, irrevocable, and enforceable,” manifests “a congressional declaration of a liberal federal policy favoring arbitration agreements.” This federal policy, according to the Court, in turn gives rise to what has become known as the “presumption . . . in favor of arbitration” (Presumption). According to the Moses Presumption, “as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration . . . .” Hundreds of lower court decisions have applied the Presumption in FAA cases since Moses. At the same time, the Presumption has also been accused of elevating arbitration agreements above other contracts without any basis for doing so in the FAA, and of “divert[ing] courts from the best reading of the text at the first hint of uncertainty, and thereby work[ing] a massive alteration of written contracts in America.” In the face of growing calls for the Moses Presumption to be reconsidered, it is likely that litigants will attempt, sooner or later, to challenge it before the Supreme Court. This is the first article to defend the Presumption

The PAGA Saga

Employees routinely enter into employment contracts that contain arbitration ‎agreements and prohibit ‎them from bringing class and/or representative actions. These employees may therefore only bring claims against their ‎employers, ‎whether contractual or statutory, in arbitration on an individual basis. Such arbitration agreements and the class/representative action waivers that they contain are enforced nationwide pursuant to the Federal Arbitration Act (FAA). In California, however, a judge-made rule (the Iskanian rule) prohibits the enforcement of representative action waivers found in arbitration agreements with respect to employees’ claims of Labor Code violations under California’s Private Attorney General Act (PAGA). A judicial battle is currently raging between the state and the federal courts in California concerning the tension between the FAA and PAGA created by the Iskanian rule. This PAGA saga—the split between the courts in California—is now before the United States Supreme Court. This Article examines the state and federal courts’ respective interpretations of the Iskanian rule and discusses the weaknesses in their approaches. The Article argues that unless the Supreme Court reverses its long-standing course, the Court’s current precedent leads to the invalidation of the Iskanian rule under both the state and the federal judicial approaches because the rule is preempted by the FAA. The impact of the Supreme Court’s decision with respect to PAGA will likely be felt far beyond California. The decision will be relevant to the interpretation and application of the FAA more generally, as well as to other private attorney general statutes that might intersect with the FAA

Mobile-Based Transportation Companies, Mandatory Arbitration, and the Americans with Disabilities Act

Uber, Lyft, DoorDash and similar mobile-based transportation network companies (TNCs) have been involved in numerous legal battles in multiple jurisdictions. One contested issue concerns whether TNC drivers are employees or independent contractors. Uber recently lost this battle to some extent in the UK, but won it in California. Another issue concerns the TNCs’ use of mandatory (pre-dispute) arbitration clauses in their standard form service agreements with both drivers and passengers. These arbitration clauses purport to obligate such future plaintiffs to resolve any dispute with the defendant TNC outside of court and, typically, on an individual rather than a class basis. TNCs have had mixed success enforcing arbitration clauses contained in service agreements with their drivers under the Federal Arbitration Act (FAA). As for passengers, TNCs have been increasingly litigating disability-based discrimination claims brought against them and/or their drivers pursuant to the Americans with Disabilities Act (ADA). These claims have largely arisen in two situations