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Process Purity And Innovation In Dispute Resolution: A Response To Professors Stempel, Cole, And Drahozal, Richard C. Reuben
Process Purity And Innovation In Dispute Resolution: A Response To Professors Stempel, Cole, And Drahozal, Richard C. Reuben
Faculty Publications
This article uses a "process characteristics and values" approach to make the case against displacing arbitration finality with substantive judicial review. It responds to a trio of articles in a forthcoming Nevada Law Review symposium on whether and how the Federal Arbitration Act should be amended. In one article, Nevada Law Professor Jeffrey Stempel contends all arbitration awards should be subject to substantive judicial review similar to that of public trial courts. In a second article, Ohio State Professor Sarah Cole argues that substantive review should generally be permitted when the parties agree to it by contract, an issue now …
Consideration Of 'Contracting Culture' In Enforcing Arbitration Provisions, Amy J. Schmitz
Consideration Of 'Contracting Culture' In Enforcing Arbitration Provisions, Amy J. Schmitz
Faculty Publications
The Federal Arbitration Act mandates strict and uniform enforcement of standardized pre-dispute arbitration provisions. This may not be proper, however, in light of the importance of context with respect to these provisions. This Article therefore seeks to remind courts of the importance of exchange context by proposing a "contracting culture" continuum for enforcing these arbitration provisions that acknowledges the impacts of these provisions in a particular communal context. "Contracting culture" encompasses economic and non-economic relational factors that impact dispute resolution agreements, but go beyond common conceptions of "culture" focused on ethnicity, nationality, or religion. It also explores beyond the primary …
Dangers Of Deference To Form Arbitration Provisions, Amy J. Schmitz
Dangers Of Deference To Form Arbitration Provisions, Amy J. Schmitz
Faculty Publications
This Article is part of my larger project exploring what I call "contracting culture," which borrows from legal realism and relational contract theory by considering contextual factors such as negotiators' relations, understandings, and values. As part of this project, I am pursuing various threads, including empirical studies of how contracting realities impact arbitration. In this Article, however, I focus on how these realities in business to consumer contracts combine with the Federal Arbitration Act and formulaic contract law to foster dangerous deference to form arbitration provisions. The Article then invites procedural reforms and offers suggestions for regulations aimed to temper …