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Full-Text Articles in Law
Arbitration Case Law Update 2012, Jill I. Gross
Arbitration Case Law Update 2012, Jill I. Gross
Elisabeth Haub School of Law Faculty Publications
Parties to arbitration agreements sometimes invoke the judicial system to litigate collateral issues arising out of the arbitration process, such as arbitrability of some or all of the claims, arbitrator bias, and award enforcement or vacatur. When deciding these collateral issues arising out of securities arbitration, courts interpret and apply the Federal Arbitration Act (FAA). This chapter identifies recent decisions by the Supreme Court under the FAA, as well as selected lower court decisions that could have an impact on securities arbitration practice.
Disputing Arbitration Clauses In International Insurance Agreements: Problems With The Self-Execution Framework, Michael J. Ritter
Disputing Arbitration Clauses In International Insurance Agreements: Problems With The Self-Execution Framework, Michael J. Ritter
Pace International Law Review Online Companion
This Article argues that the self-execution framework that courts have adopted—and scholars have endorsed—in addressing whether McCarran-Ferguson enables states to reverse preempt the New York Convention is inadequate. First, the Article addresses the interpretive question: what is an “Act of Congress” under McCarran-Ferguson? By examining whether a treaty is self or non-self-executing, courts discard proper methods of statutory interpretation. Second, the Article argues that courts have failed to satisfactorily transpose the self-execution doctrine—which has been relevant only in determining whether a treaty confers a legally enforceable right in the U.S.—into the context of the conflict between McCarran-Ferguson and the New …
Investor Protection Meets The Federal Arbitration Act, Jill I. Gross
Investor Protection Meets The Federal Arbitration Act, Jill I. Gross
Elisabeth Haub School of Law Faculty Publications
In the past three decades, most recently in AT&T Mobility LLC v. Concepcion, the United States Supreme Court has advanced an aggressive pro-arbitration campaign, transforming the Federal Arbitration Act (FAA) into a powerful source of anti-consumer substantive arbitration law. In the aftermath of AT&T Mobility, which upheld a prohibition on class actions in a consumer contract despite state law that refused to enforce such provisions on unconscionability grounds, efforts have been made to prohibit investors from bringing class actions or joining claims, including claims under the Securities Exchange Act of 1934 (the Exchange Act). In the most egregious example to …
At&T Mobility And Faa Over-Preemption, Jill I. Gross
At&T Mobility And Faa Over-Preemption, Jill I. Gross
Elisabeth Haub School of Law Faculty Publications
The Supreme Court's recent arbitration law decisions reflect the Court's strong support for arbitration agreements, but also severely limit the states’ powers to police the fairness of arbitration. In particular, the Court’s decision in AT&T Mobility v. Concepcion, LLC expands the FAA preemption doctrine beyond its prior boundaries, signaling how far the Court is willing to go to support arbitration clauses at the expense of states’ rights and the values of federalism. This article explores the impact of AT&T Mobility on the preemption of state arbitration law, and the concomitant impact on the balance between state and federal power in …