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Law and Contemporary Problems

2004

Civil procedure

Articles 1 - 5 of 5

Full-Text Articles in Law

The Revocability Of Contract Provisions Controlling Resolution Of Future Disputes Between The Parties, Paul D. Carrington, Paul Y. Castle Apr 2004

The Revocability Of Contract Provisions Controlling Resolution Of Future Disputes Between The Parties, Paul D. Carrington, Paul Y. Castle

Law and Contemporary Problems

The Supreme Court has vastly expanded the applicability of arbitration legislation, making it applicable to many types of contracts to which the application of the revocability doctrine would make better sense. This article corrects the misunderstanding of the policies served by the common law rule and suggests the rule's revival for application to many of the contracts to which the Supreme Court has expanded the application of the Federal Arbitration Act.


Correcting Federalism Mistakes In Statutory Interpretation: The Supreme Court And The Federal Arbitration Act, David S. Schwartz Apr 2004

Correcting Federalism Mistakes In Statutory Interpretation: The Supreme Court And The Federal Arbitration Act, David S. Schwartz

Law and Contemporary Problems

The current judicial treatment of the Federal Arbitration Act is an embarrassment to a Supreme Court whose majority is supposed to be leading a federalism revival, if not a federalism revolution. In 1984, in Southland Corp. v. Keating, the Court held that the FAA is substantive federal law that preempts state laws regulating arbitration agreements. The Court thereby transformed a quaint, 60-year-old procedural statute into "a permanent, unauthorized eviction of state-court power to adjudicate a potentially large class of disputes," as well as an eviction of state lawmaking power over the traditional state domain of contract law. Even worse, Southland …


The High Cost Of Mandatory Consumer Arbitration, Mark E. Budnitz Apr 2004

The High Cost Of Mandatory Consumer Arbitration, Mark E. Budnitz

Law and Contemporary Problems

This article critically examines a sampling of arbitration agreements and the rules of the major arbitration service providers and concludes that the cost of arbitration is often prohibitively high, either because consumers simply cannot afford the fees attendant to filing and prosecuting a claim or because the costs of bringing a claim outweigh the benefits of any potential remedies.


Control Over Dispute-System Design And Mandatory Commercial Arbitration, Lisa B. Bingham Apr 2004

Control Over Dispute-System Design And Mandatory Commercial Arbitration, Lisa B. Bingham

Law and Contemporary Problems

This article argues that mandatory arbitration is not itself the problem. The problem is instead that in some instances, one party to the dispute has exclusive control of the design of the dispute-resolution system. Consequently, research on mandatory arbitration should concentrate on who is structuring it, how they structure it, why this is so and how these choices affect dispute outcomes.


Contracting With Tortfeasors: Mandatory Arbitration Clauses And Personal Injury Claims, Elizabeth G. Thornburg Apr 2004

Contracting With Tortfeasors: Mandatory Arbitration Clauses And Personal Injury Claims, Elizabeth G. Thornburg

Law and Contemporary Problems

This article examines some of the cases in which courts have enforced arbitration clauses in personal injury litigation and considers why courts have reached the outcomes they have. It evaluates the ways that arbitration can disturb the traditional values of procedural justice, contractual fairness and the enforcement of tort-based duties. It suggests changes in the law regarding mandatory arbitration of personal injury claims and explores the extent to which change is possible.