Law Commons^™

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 …

Congressional Control Over Federal Court Jurisdiction: A Defense Of The Traditional View, Julian Velasco

Journal Articles

The extent of Congress's authority to control the jurisdiction of the federal courts has been the subject of unending academic debate. The orthodox view long has been that Congress possesses nearly plenary authority to restrict federal court jurisdiction. There has been no shortage, however, of commentators who have taken exception to that view. The heart of the debate lies in whether Congress is authorized to remove specific subjects from the jurisdiction of federal courts when motivated by hostility to their substantive decisions. According to the traditional view, Congress is free to use its power in this manner. While most traditionalists …

The Res Judicata Effect Of Bankruptcy Court Judgments: The Procedural And Constitutional Concerns, George A. Martinez

Faculty Journal Articles and Book Chapters

This article seeks to resolve the conflict in the circuits and argues that bankruptcy court judgments should not bar the assertion of non-core claims because to do so violates the basic principles of res judicata and threatens to undermine fundamental Article III values or create judicial inefficiencies in an effort to preserve such values.

Part II of the article provides the relevant Article III background, and identifies the key Article III cases: Northern Pipeline Construction Company v. Marathon Pipe Line Company and Commodity Futures Trading Commission v. Schor. This section explores the impact of Northern Pipeline which held that the …