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Interlocutory Review Of Litigation-Avoidance Claims: Insights From Appeals Under The Federal Arbitration Act, Roger J. Perlstadt

Akron Law Review

Part I of this article outlines and critiques current law on stays pending appeal of refusals to enforce purported arbitration agreements. Part II proposes a simple analysis of expected error costs to determine whether to stay litigation pending interlocutory appeal of rejections of litigationavoidance claims. This analysis looks to (1) potential harm to plaintiffs of erroneously staying litigation pending appeal, (2) potential harm to defendants of erroneously refusing to stay litigation pending appeal, and (3) the likelihood of each of those types of harms arising, which is based on the likelihood that the district court’s denial of the litigation avoidance …