Law Commons^™

Toward A Contractual Approach To Arbitral Immunity, Peter B. Rutledge

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This Article breaks from conventional wisdom in both case law and scholarship. It proposes a simple but novel thesis: Arbitrators and arbitral institutions, in cases of voluntary submission of disputes, should not be entitled to any form of legal immunity. Instead, any limit on or waiver of the arbitrator's or institution's liability should come in the form of a contractual release-either adopted in the parties' arbitration agreement or negotiated between the parties and the arbitrator.

Central to this thesis is a distinction between two types of immunity. The first form of immunity is “contractual immunity.” The hallmark of contractual immunity …

Necessity Never Made A Good Bargain: When Consumer Arbitration Agreements Prohibit Class Relief, Thomas V. Burch

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The American system of arbitration is constantly evolving. From the first formal arbitration tribunal in 1786—established by the New York Chamber of Commerce—to the creation of the Federal Arbitration Act in 1925—passed to suppress judicial hostility towards arbitration -- the system has continuously adapted to accommodate changing business practices and rising judicial concerns over the legitimacy of the institution. In fact, the system’s adaptation has been so effective that the Supreme Court now recognizes a “national policy favoring arbitration.” This “national policy” is the most recent phase of the arbitration evolution, and it raises several concerns. Most significantly, lower courts …

Georgia General Assembly Adopts "Manifest Disregard" As A Ground For Vacating Arbitration Awards: How Will Georgia Courts Treat The New Standard?, John W. Hinchey, Thomas V. Burch

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Generally, courts may only set aside arbitration awards on the grounds listed in the Federal Arbitration Act or the applicable state arbitration code. However, all federal circuit courts and a few state courts have adopted a non-statutory exception that allows a court to overturn an arbitrator's decision if the arbitrator has exemplified a "manifest disregard" of the law.

In 2002, after several years of tentative lower court decisions, the Georgia Supreme Court, in Progressive Data Systems v. Jefferson Holding Corporation, held that manifest disregard is not a proper ground for vacatur in Georgia. The court emphasized that Georgia's Arbitration Code …

Problem-Solving Advocacy In Mediations, Harold I. Abramson

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No abstract provided.

In Search Of The Best Procedure For Enforcing Employment Discrimination Laws: A Comparative Analysis, Jean R. Sternlight

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As our world effectively shrinks, many countries are beginning to reach a striking substantive consensus regarding the prohibition of employment discrimination. Yet, and in sharp contrast, nothing approaching consensus has yet emerged regarding the best procedural method with which to resolve individual claims of employment discrimination. Instead, while countries have struggled, individually, to devise processes that meet a variety of needs, none seems to be satisfied with its efforts. Litigation is slow, costly, and impersonal. Informal processes such as conciliation, mediation, arbitration, or administrative processes aim to be faster and cheaper, but may not result in adequate enforcement of discrimination …

Boyd School Of Law Establishes Saltman Center For Conflict Resolution, Jean R. Sternlight

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This article discusses William S. Boyd School of Law’s establishment of the Saltman Center for Conflict Resolution.

Using Arbitration To Eliminate Consumer Class Actions: Efficient Business Practice Or Unconscionable Abuse?, Jean R. Sternlight, Elizabeth J. Jensen

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Companies are increasingly drafting arbitration clauses worded to prevent consumers from bringing class actions against them in either litigation or arbitration. If one looks at the form contracts she receives regarding her credit card, cellular phone, land phone, insurance policies, mortgage, and so forth, most likely, the majority of those contracts include arbitration clauses, and many of those include prohibitions on class actions. Companies are seeking to use these clauses to shield themselves from class action liability, either in court or in arbitration.

This article argues that while the unconscionability doctrine offers some protections, case-by-case adjudication is a costly means …

Arbitration, Unconscionability, And Equilibrium: The Return Of Unconscionability Analysis As A Counterweight To Arbitration Formalism, Jeffrey W. Stempel

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However incomplete, unaggressive, or sub-optimal, unconscionability analysis of arbitration agreements has made something of a comeback in the late twentieth century and early twenty-first century. Just as nature abhors a vacuum, water seeks to be level, and ecosystems work to retain environmental stability, the legal system has witnessed an incremental effort by lower courts to soften the rough edges of the Supreme Court's pro-arbitration jurisprudence through rediscovery of what might be called the “unconscionability norm”--a collective judicial view as to what aspects of an arbitration arrangement are too unfair to merit judicial enforcement. In rediscovering and reinvigorating the unconscionability norm …

Learning From Practice: What Adr Needs From A Theory Of Justice, Katherine R. Kruse

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Adding to the impressive body of work that has made her a leading voice in the fields of both alternative dispute resolution and professional responsibility, Carrie Menkel-Meadow's Saltman Lecture connects the theoretical exploration currently occurring on two parallel tracks: (1) theories of justice that investigate the ideal of a deliberative democracy; and (2) theories of alternative dispute resolution arising from its reflective practice. As she notes, theorists on both tracks are grappling with similar questions about the processes or conditions that will best bring together parties with widely divergent viewpoints to engage in consensus-building dialogue around contested issues.

However, while …

Mining Mediation Rules For Representation Opportunities And Obstacles, Harold I. Abramson

Scholarly Works

No abstract provided.