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The Lost Controversy Limitation Of The Federal Arbitration Act, Stephen Friedman
The Lost Controversy Limitation Of The Federal Arbitration Act, Stephen Friedman
Stephen E Friedman
Despite Congress’s deliberate limitation of the Federal Arbitration Act (the “FAA”) to disputes arising out of a contract containing an arbitration provision, broader arbitration provisions are ubiquitous. Courts invariably enforce such provisions under the FAA. Notably, the Supreme Court has almost entirely disregarded the relevant language of the FAA and has ignored the conflict between the FAA’s narrow language and the broad language typically found in arbitration provisions. In so doing, the Court has quietly and inappropriately elevated the language of private agreements above the language of the statute. In this article, Professor Friedman first identifies the origin of the …
Purpose, Precedent, And Politics: Why Concepcion Covers Less Than You Think, Michael A. Helfand
Purpose, Precedent, And Politics: Why Concepcion Covers Less Than You Think, Michael A. Helfand
Michael A Helfand
This article sketches some possible limitations on the impact AT&T Mobility v. Concepcion will have going forward. While many have seen the Supreme Court’s decision as simultaneously signaling an end to the viability of class action lawsuits and undermining principles of federalism, there may be reasons to believe that it will not have implications quite so far reaching. Specifically, this article proposes three reasons why Concepcion’s impact may be limited. First, the decision lends itself to a more narrow reading, which simply demands that courts take the entire of an arbitration agreement into account before deploying common law defenses to …
Better To Have Tried And Failed Than Never To Have Tried Mediation At All: Implications Of Mandatory Mediation In Fisher V. Ge Medical Systems, Adam Epstein
Adam Epstein
A discussion of the 2003 case, Fisher v. GE Medical Systems that helped to shape the issue of whether or not mandatory mediation clauses in employment handbooks constitute “arbitration” under the Federal Arbitration Act (FAA). Several courts in different jurisdictions have interpreted arbitration and mediation as the same, especially in circumstances involving the Fair Labor Standards Act (FLSA).
Employer's Exclusive Control Over Selection Of Arbitrators Held Invalid, Adam Epstein
Employer's Exclusive Control Over Selection Of Arbitrators Held Invalid, Adam Epstein
Adam Epstein
Discussion of the 2003 Sixth Circuit Court of Appeals case McMullen v. Meijer, Inc. While alternative forms of dispute resolution such as arbitration and mediation are now commonplace and are effectively utilized to avoid litigation and resolve disputes between employers and employees, the procedure in the arbitration process must be fair. Upon the hire, employers often provide their employees with an employment handbook that specifically discusses procedures involving termination. Often the employee handbook, if one exists, is viewed as a contract and is often a first step in determining the proper method of dispute resolution and procedure. In this case, …