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Full-Text Articles in Law
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 …
Arbitration By Accident: The Consequence Of Unintentionally Meeting The Clear And Unmistakable Evidence Standard, Mark A. Mulchek
Arbitration By Accident: The Consequence Of Unintentionally Meeting The Clear And Unmistakable Evidence Standard, Mark A. Mulchek
Journal of Dispute Resolution
A fundamental principle of arbitration law is that parties may only be compelled to submit an issue to arbitration if they agreed to do so. The question of when an arbitrator, instead of a district court, can decide the arbitrability of an issue has been taken up by the courts in recent years. In First Options of Chicago, Inc. v. Kaplan, the Supreme Court stated that an arbitrator may decide questions of arbitrability only when the parties have "clearly and unmistakably" agreed to defer such questions to an arbitrator. Since First Options, the lower courts have attempted to define when …
Only The Rich Can Afford A Remedy: The Unconscionable Enforcement Of Arbitration Provisions Against The Indigent, Ryan M. Turley
Only The Rich Can Afford A Remedy: The Unconscionable Enforcement Of Arbitration Provisions Against The Indigent, Ryan M. Turley
Journal of Dispute Resolution
In Overstreet v. Contigroup Cos., Inc.,2 the Fifth Circuit Court of Appeals held that neither economic disadvantage nor undisclosed arbitration fees may form the basis for striking down an arbitration provision on the grounds of unconscionability.3 While the Supreme Court and the Federal Arbitration Act (FAA) expressly authorize the use of the doctrine of unconscionability to invalidate arbitration provisions, courts are sharply divided on its proper application. 4 The difficult juxtaposition of the Supreme Court's interpretation of the FAA as a "liberal federal policy favoring arbitration" and the traditional application of unconscionability as a means of policing unfair contracts has …
Application Of Due Process To Arbitration Awards Of Punitive Damages - Where Is The State Action, The, Charles Smith
Application Of Due Process To Arbitration Awards Of Punitive Damages - Where Is The State Action, The, Charles Smith
Journal of Dispute Resolution
This article will analyze why the position of the courts-no state action-is correct. Specifically, this article will take the position that the policy of finality traditionally found in arbitration law must trump any constitutional inquiries. This is because arbitration is ultimately based on the parties' agreement, which inevitably recites that the arbitrator's decision shall be final and, in any event, this finality is generally implied.
Faa And The Userra: Pro-Arbitration Policies Can Undermine Federal Protection Of Military Personnel, Laura Bettenhausen
Faa And The Userra: Pro-Arbitration Policies Can Undermine Federal Protection Of Military Personnel, Laura Bettenhausen
Journal of Dispute Resolution
According to the United States Supreme Court, statutory claims may be the subject of an arbitration agreement contained in an individual employment contract. In Garrett v. Circuit City Stores, Inc., the United States Court of Appeals for the Fifth Circuit analyzed whether claims brought under the Uniformed Services Employment and Reemployment Rights Act (USERRA) are subject to arbitration under the Federal Arbitration Act (FAA). The applicability of the FAA to employment contracts is an integral part of the analysis in this case. To determine whether arbitration is an appropriate forum for the plaintiff's claim, discussion of both the structure and …
Resisting Equal Footing: Did The Wisconsin Supreme Court Disguise An Assault On Arbitration, Peter Wilder
Resisting Equal Footing: Did The Wisconsin Supreme Court Disguise An Assault On Arbitration, Peter Wilder
Journal of Dispute Resolution
It is well settled that state courts may apply state contract principles when determining if an arbitration clause is enforceable; however, states are prohibited from enforcing laws that treat arbitration agreements differently than other contracts. Placing arbitration agreements on an equal footing with other contracts results from judicial preference for arbitration. When a court overreaches to find an arbitration agreement to be procedurally and substantively unconscionable, the overreaching may stem from the court's erroneous preference for adjudication over arbitration. The issue becomes more apparent when the court had the option to enforce the agreement without the unconscionable provision, yet chose …