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Articles 61 - 69 of 69
Full-Text Articles in Law
Rethinking The Constitutionality Of The Supreme Court's Preference For Binding Arbitration: A Fresh Assessment Of Jury Trial, Separation Of Powers, And Due Process Concerns, Jean R. Sternlight
Rethinking The Constitutionality Of The Supreme Court's Preference For Binding Arbitration: A Fresh Assessment Of Jury Trial, Separation Of Powers, And Due Process Concerns, Jean R. Sternlight
Scholarly Works
Courts and commentators have typically assumed that binding arbitration is both private and consensual, and that it therefore raises no constitutional concerns. This Article challenges both assumptions and goes on to consider arguments that arbitration agreements may unconstitutionally deprive persons of their right to a jury trial, to a judge, and to due process of law. The author argues first that courts' interpretation of seemingly private arbitration agreements may often give rise to "state action," particularly where courts have used a "preference favoring arbitration over litigation" to construe a contract in a non-neutral fashion. The author next draws on the …
Panacea Or Corporate Tool?: Debunking The Supreme Court's Preference For Binding Arbitration, Jean R. Sternlight
Panacea Or Corporate Tool?: Debunking The Supreme Court's Preference For Binding Arbitration, Jean R. Sternlight
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This article examines the increasing use of contracts of adhesion in which companies require consumers, employees, franchisees and other "little guys" to submit disputes with the company to binding arbitration. The article argues that the Supreme Court's current preference for such agreements is not statutorily well-founded. Specifically, it contends that the Federal Arbitration Act was not intended to make such agreements binding on unknowing consumers or employees. Turning next to policy analysis, the article asserts that the Supreme Court has erred in expressing a preference for binding arbitration in cases where such arbitration was not knowingly and voluntarily accepted by …
Bootstrapping And Slouching Toward Gomorrah: Arbitral Infatuation And The Decline Of Consent, Jeffrey W. Stempel
Bootstrapping And Slouching Toward Gomorrah: Arbitral Infatuation And The Decline Of Consent, Jeffrey W. Stempel
Scholarly Works
The Seventh Amendment to the Constitution preserves for litigants a right to a jury trial in actions at law. The right to a jury trial does not attach for equitable actions, but in cases presenting claims for both legal and equitable relief a right to a jury trial exists for common questions of fact. Although many modern statutes and claims did not exist in 1791, the Amendment has been interpreted to require a jury trial of statutory claims seeking monetary damages, the classic form of legal relief, so long as there is a relatively apt analogy between the modern statutory …
Predisposed With Integrity: The Elusive Quest For Justice In Tripartite Arbitrations, Deseriee A. Kennedy
Predisposed With Integrity: The Elusive Quest For Justice In Tripartite Arbitrations, Deseriee A. Kennedy
Scholarly Works
No abstract provided.
New Paradigm, Normal Science, Or Crumbling Construct? Trends In Adjudicatory Procedure And Litigation Reform, Jeffrey W. Stempel
New Paradigm, Normal Science, Or Crumbling Construct? Trends In Adjudicatory Procedure And Litigation Reform, Jeffrey W. Stempel
Scholarly Works
One aspect of a possible new era is the increasing ad hoc activity of various interest groups, including the bench and the organized bar, primarily pursued through official organizations such as the Judicial Conference, the Federal Judicial Center, the American Bar Association (“ABA”), and the American Law Institute. Traditionally, of course, judges and lawyers have lobbied Congress and state legislatures for litigation change, as demonstrated by the saga of the Rules Enabling Act (“Enabling Act” or “Act”). But, the legal profession's more recent “political” activity regarding litigation reform differs from the traditional model in several ways. First, the participation of …
A Primer On Resolving Disputes: Lessons From Alternative Dispute Resolution, Harold I. Abramson
A Primer On Resolving Disputes: Lessons From Alternative Dispute Resolution, Harold I. Abramson
Scholarly Works
No abstract provided.
Reconsidering The Employment Contract Exclusion In Section 1 Of The Federal Arbitration Act: Correcting The Judiciary's Failure Of Statutory Vision, Jeffrey W. Stempel
Reconsidering The Employment Contract Exclusion In Section 1 Of The Federal Arbitration Act: Correcting The Judiciary's Failure Of Statutory Vision, Jeffrey W. Stempel
Scholarly Works
The Federal Arbitration Act (the Act), seeks to eliminate centuries of perceived judicial hostility toward arbitration agreements. The Act made written arbitration agreements involving interstate commerce specifically enforceable. It also provided a procedural structure for enforcing awards, which were protected through deferential judicial review. The Act intended to have a wide reach, employing a broad definition of commerce that has presumably grown in breadth along with the expansion of judicial notions of commerce. Although courts applied the Act in tentative and cautious fashion until the 1960's, arbitration gained momentum during the 1970's and the 1980's. Despite growing judicial enthusiasm for …
A Better Approach To Arbitrability, Jeffrey W. Stempel
A Better Approach To Arbitrability, Jeffrey W. Stempel
Scholarly Works
Historically, Anglo-American courts refused to enforce arbitration agreements, jealously guarding their dispute resolution monopoly. During the early twentieth century, merchants and attorneys began seeking legislation requiring courts to defer to arbitration. The United States Abitration Act took effect January 1, 1926 and has remained essentially unchanged. It was written with the implicit assumption that it would be invoked by commercial actors having relatively equal bargaining power and emotive appeal to a jury. The Act says nothing to direct the court's inquiry concerning the quality of either party's assent to the arbitration clause other than requiring a written arbitration agreement and …
Pitfalls Of Public Policy: The Case Of Arbitration Agreements, Jeffrey W. Stempel
Pitfalls Of Public Policy: The Case Of Arbitration Agreements, Jeffrey W. Stempel
Scholarly Works
As the juxtaposition of these quotations suggests, judges have long held disparate views on the legitimacy and value of “public policy” considerations as a basis for legal decision making. The popular notion posits that Justice Holmes and legal realists carried the day, making public policy analysis an ordinary part of the adjudication process. The story, of course, is more complex than this legal version of Don Quixote. Many judges and lawyers, including Justice Holmes in other writings, continued to speak of adjudication in more formalist and positivist terms, with most laypersons in apparent agreement. Judge Burroughs' view of public policy …