Law Commons^™

A Muddy Mess: The Supreme Court’S Jurisprudence On Jurisdiction For Arbitration Matters, Kristen M. Blankley

University of Miami Law Review

The Supreme Court’s 2022 Badgerow v. Waters decision at- tempts to create a bright-line rule regarding access to federal courts to hear arbitration matters. On its face, the Badgerow majority opinion reads like a straightforward exercise in textualism. Badgerow interpreted the judicial test for jurisdiction under the Federal Arbitration Act (“FAA”) provision regarding vacatur differently than it interpreted the jurisdictional test for a motion to compel under a different part of the statute. However, Badgerow leaves courts, which were already struggling to decipher the Supreme Court’s 2009 decision of Vaden v. Discover Bank, with a significant number of outstanding questions. …

The Power Of Two Words To Split Circuits, Natalie Whitacre

University of Miami Law Review

28 U.S.C. § 1782 authorizes federal judges to grant assistance to a “foreign or international tribunal” for discovery proceedings. The meaning of the term “foreign or international tribunal” has been the subject of much dispute. In 2019 the Sixth Circuit became the first court of appeals to extend the purview of the statute to private commercial arbitration, creating a circuit split. However, the use of 28 U.S.C. § 1782 in arbitral proceedings raises a number of questions about whether U.S. style discovery would impede the efficiency of arbitration and whether the practice could be extended to international tribunals located within …

Interpretation Of Article V Of The New York Convention In The Eleventh Circuit: Industrial Risk Insurers, Juan C. Garcia, Ivan Bracho Gonzalez

University of Miami Law Review

The widespread use and growing preference for international arbitration over cross-border litigation is primarily due to the existence of a clear and straightforward regime for the enforcement of arbitration agreements and awards. Even though this was not always the case, through the appearance of the New York Convention and the United Nations Commission on International Trade Law (“UNCITRAL”) Model Law on International Commercial Arbitration, the treatment and acceptance of international arbitration in different legal regimes has undergone a harmonization process which has served to develop consistency. That harmonization process, however, has not been completed. Several jurisdictions, even within their own …

A Cure For Every Ill? Remedies For “Pathological” Arbitration Clauses, Harout J. Samra, Ramya Ramachanderan

University of Miami Law Review

Defective arbitration and dispute resolution clauses—widely called “pathological clauses”—may undermine parties’ intent to seek recourse to arbitration rather than the courts. Questions concerning the existence and validity of arbitration clauses are subject to state contract law despite the wide sweep of the Federal Arbitration Act. This Article examines selected common “pathologies” and reviews recent court decisions, including from the Eleventh Circuit Court of Appeals and its constituent federal district courts, concerning the enforcement of such clauses.

Deflategate Pumped Up: Analyzing The Second Circuit’S Decision And The Nfl Commissioner’S Authority, Josh Mandel

University of Miami Law Review

Deflategate was one of the most controversial scandals in NFL history, and while many became fascinated due to their love of football, Deflategate was ultimately rooted in law. NFL Commissioner Roger Goodell suspended Tom Brady, the legendary quarterback for the New England Patriots, for four games for engaging in “conduct detrimental to the integrity of and public confidence in the game of professional football.” More specifically, Goodell suspended Brady because he was generally aware of Patriots staff deflating footballs prior to the 2015 AFC Championship game, and because he failed to cooperate with the investigation into the deflated footballs.

Commissioner …