Law Commons^™

Are Arbitrators Above The Law? The "Manifest Disregard Of The Law" Standard, Michael Leroy

Michael H LeRoy

Arbitration is supposed to be final and binding. But federal and state laws, and judicial doctrines, allow courts to vacate arbitrator awards. This study contemplates the role of courts when they review awards that “manifestly disregard the law”— a term that means the arbitrator knew the law but chose to ignore it. Given the norm of arbitral finality, should courts vacate these rulings?

Hall Street Associates v. Mattel, Inc., 552 U.S. 576 (2008), failed to answer this question. The parties asked a court to review their award for errors of law. This standard is not in the Federal Arbitration Act …

The Extent To Which "Yellowstone Injunctions" Apply In Favor Of Residential Tenants: Who Will See Red, Who May Earn Green, And Who May Feel Blue?, Hon. Mark Dillon

Hon. Mark C. Dillon

Difficulties in the residential and commercial real estate markets have caused an influx of cases in the New York State courts by which banks seek the foreclosure of delinquent mortgages and landlords seek the eviction of tenants that are in default of rent payment obligations.

New York State has long recognized "Yellowstone injunctions" in the context of commercial leases, where tenants preemptively obtain court orders enjoining their landlords from terminating their breached leases. The concept is named after its case of origin, First Nat. Stores, Inc. v. Yellowstone Shopping Center, Inc., which was decided by the state's Court of Appeals …

The Rhetoric Of Originalism, David Finkelstein

David Finkelstein

Justice Stevens has recently observed that originalism "holds out objectivity and restraint as its cardinal and, it seems, only virtues." McDonald v. City of Chicago, Ill., 130 S.Ct. 3020, 3118 (2010) (Stevens, J., dissenting). This article critically examines the notion that non-originalist methods of interpretation invite subjectivity into the process and are therefore insufficient to constrain. I suggest that the originalist's dissatisfaction with ordinary methods of interpretation rests of bad philosophy of language, and that properly thought through, Wittgenstein's rule-following considerations point to a better way of thinking about meaning in general, and legal interpretation in particular.

Saying “I’M Sorry” Is Not So Simple: Embracing The Complexity Of The Apology With A New Evidentiary Rule, Amy Poyer

Amy Poyer

Apologies are everywhere. In day-to-day life, when a person apologizes, they must deal with a myriad of consequences for that apology. These may include vulnerability to the victim, embarrassment, a bruised ago, or even rejection of the apology by the victim. However, when the wrong one apologizes for turns into a lawsuit, the one apologizing has an additional penalty. Piled on to the emotional consequences that accompany any apology, a potential defendant must also worry about his apology’s use against him in court to prove that he is liable. Recently, a debate has developed over whether or not the law …

Limiting Legislative Courts: Protecting Article Iii From Congressional Evisceration, Kenneth G. Coffin

Kenneth G. Coffin

As with the notion of a unitary executive or a limited commerce clause, hope for a single federal judiciary has fallen by the wayside. Since 1828, the Supreme Court has recognized a separate class of “legislative courts.” Judges of these legislative, or Article I, courts fall outside the guarantees of Article III. Congress may therefore provide for limited terms of office, disparate methods of appointment and reduction of salaries. Currently there are over 2,000 Article I judges, including Bankruptcy, Magistrate, and Administrative Law judges, just to name a few. In contrast, only 829 United States judges can claim Article III …

In The Name Of Watergate -- Returning Ferpa To Its Original Design, Meg Penrose

Meg Penrose

The attached article, entitled "In the Name of Watergate: Returning FERPA to its Original Design" details the Watergate effect on federal privacy legislation, particularly the Family Educational Rights and Privacy Act (FERPA). Senator James L. Buckley, a one-term Senator from New York, served as the architect for what remains the most important education privacy law in existence. However, Senator Buckley recently discussed the reasons that this law should be "clarified" and returned to its original design. I wholeheartedly agree. In the digital era, we must zealously protect privacy with effective legislation that guards both the collection and release of personal …

The Partisan Dimensions Of Federal Preemption In The United States Courts Of Appeals, Bradley Joondeph

Bradley W. Joondeph

This paper explores some of these empirical uncertainties surrounding the political dimensions of preemption in the federal courts. More concretely, it presents a statistical study of every preemption decision rendered by the United States Courts of Appeals from January 1, 2005, to December 31, 2009, a total of 560 decisions and just over 1,700 judicial votes. And these data tell a story consisting of two distinct parts. The first part is that preemption disputes seem to produce a large measure of judicial consensus. In the full universe of cases, there is only a slight difference between Republican and Democratic appointees: …

Cleaning Up Bankruptcy: Limiting The Dischargeability Of Environmental Cleanup Costs, Sonali P. Chitre

Sonali P Chitre

This article reconciles the joint aims of environmental and bankruptcy law after Judge Posner’s myopic opinion in the Seventh Circuit’s resolution of U.S. v. Apex Oil. These two areas of law represent alternative means to the same end—the equitable distribution of limited resources—and share equity’s traditional emphasis of function over form. Ignoring these principles, Judge Posner ruled in Apex that a cleanup order constitutes a dischargeable “claim” when styled as a legal judgment but not when styled as an equitable injunction. This despite the fact that in either case the liability amounts to the same thing-payment must be made for …

Serious Disagreement: Same-Sex Marriage, Judicial Review, And The Quality Of Debate, Rob Goodman

Rob Goodman

Both defenders and critics of strong judicial review have relied on claims about the quality of debate in courts: the former, such as Ronald Dworkin, have characterized it as more principled than legislative debate, while the later, such as Jeremy Waldron, have called it overly-focused on text and precedent, to the detriment of substantive moral argument. The question can and should be studied empirically. To begin to do so, I compare American legislative and judicial debates, on the federal and state levels, on same-sex marriage. While legislatures and courts often heard similar arguments, the marriage debate in the courts took …

Polarized Circuits: Party Affiliation Of Appointing Presidents, Ideology And Circuit Court Voting In Race And Gender Civil Rights Cases, Christopher R. Smith

Christopher R Smith

ABSTRACT Polarized Circuits: Party Affiliation of Appointing Presidents, Ideology and Circuit Court Voting in Race and Gender Civil Rights Cases This article seeks to examine the impact of Presidential party affiliation on the ideological voting patterns of Circuit Court judicial appointments within the context of race and gender civil rights cases. The article assesses two hypotheses regarding Circuit Court judicial voting patterns in race and gender civil rights cases: 1) That the ideological voting gap between Democratic appointed Circuit Court judges and Republican appointed Circuit Court judges has widened over time within the context of race and gender civil rights …

Sugarcoating The Eighth Amendment, Christopher J. Declue

Christopher J DeClue

This Article demonstrates that Eighth Amendment gross disproportionality review is virtually identical to the Fourteenth Amendment rational-basis test. Under the Fourteenth Amendment rational-basis test, a law is upheld so long as it furthers a conceivable government purpose. Case law illustrates a similar standard is applied in the face of an Eighth Amendment challenge to the length of a prison sentence. Under gross disproportionality review, the length of a sentence is upheld so long as the sentence furthers a conceivable penological purpose. Moreover, under this standard, the length of a sentence violates the Eighth Amendment only on the rare occasion that …

A Good Score?: Examining 20 Years Of Drug Courts In The United States And Abroad, Kimberly Y.W. Holst

Kimberly Y.W. Holst

In 2009, we saw the passing of the twentieth anniversary of drug courts in the United States, this timing presents an opportune moment to review the state of drug courts in the United States and the development of drug courts internationally. While the United States has served as a model and a leader in the creation and development of drug courts, countries all over the world have tweaked the United States’ model and have altered the landscape in the structure and development of drug courts. Section II of this article briefly discusses the development and current status of drug courts …

Because The Cart Situates The Horse: Unrecognized Movements Underlying The Indian Supreme Court’S Internalization Of International Environmental Law, Saptarishi Bandopadhyay

Saptarishi Bandopadhyay

The text that follows is intended to serve as an examination of the approaches and methods employed by the Indian Supreme Court in its effort to integrate international environmental norms such as the principle of Sustainable Development, the Precautionary Principle and the Polluter Pays Principle as part of the existing body of binding, municipal rules in India. Virtually all of Indian legal jurisprudence that speaks to this subject has been developed by the Supreme Court. Likewise, in no small part for this contribution, the Court has developed a reputation for being an activist institution that has since the mid 1980s …

The Supreme Appointment: Visionaries Need Not Apply, Charles W. Rhodes

Charles W Rhodes

The recent announcement of Justice John Paul Stevens that he would retire at the end of the October 2009 Term has instigated the typical media frenzy of shortlists and speculation regarding the identity of the next nominee to the United States Supreme Court. Will President Barack Obama make a bold nomination of a liberal judicial visionary to battle Justices Scalia and Thomas? Will he nominate a political officeholder who will bring a new perspective on the role of the Court? Or will he follow the recent tradition of nominating a sitting federal appellate court judge with a prestigious academic and …

Changing The Rules Of The Game: Deriving New Rules And Practices From Caperton V. A.T. Massey Coal Co., Aman L. Mcleod

Aman L McLeod

In 2009, the United States Supreme Court decided the case of Caperton v. A.T. Massey Coal Co., in which it ruled that judges must recuse themselves in cases involving those who have provided a disproportionate amount of financial support to their campaigns. This decision has forced states to reconsider their campaign finance laws and their judicial recusal rules. This article proposes practical and modest reforms that states could adopt that would effectively respond to the Caperton decision.

Simplify, Simplify, Simplify – An Analysis Of Two Decades Of Judicial Review In The Veterans Benefits Adjudication System, Rory E. Riley

Rory E. Riley

Prior to the Veterans' Judicial Review Act, the Department of Veterans Affairs existed in "splendid isolation" - meaning that the department was insulated from judicial review by statute. After the due process revolution of the 1960's and pressure from various veterans’ organizations after the Vietnam war, Congress passed the Veterans' Judicial Review Act in 1988. The Act created the U.S. Court of Appeals for Veterans Claims, an article I court with exclusive jurisdiction over decisions by the Board of Veterans' Appeals. This article argues that 20 years after the Veterans' Judicial Review Act was implemented, the system has become more …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisionmaking, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …

Growing Pains: Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated on the merits even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the Arbitration Fairness Act. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions …