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Full-Text Articles in Law
New Judicial Hostility To Arbitration: Federal Preemption, Contract Unconscionability, And Agreements To Arbitrate, The, Steven J. Burton
New Judicial Hostility To Arbitration: Federal Preemption, Contract Unconscionability, And Agreements To Arbitrate, The, Steven J. Burton
Journal of Dispute Resolution
Part I of this Article sketches the basics of arbitration law and practice, and traces the development of the federal policy favoring arbitration, to establish a basis for evaluating contemporary judicial decisions. Part II examines the justification for the policy favoring arbitration and the reasons contracting parties may prefer arbitration. Part III evaluates the reasons courts give for finding arbitration agreements in employment and consumer contexts unconscionable, and therefore, unenforceable. The conclusion is that many courts make many clearly erroneous decisions, including decisions that are unconstitutional because they are preempted.
Courts Have The Final Say: Does The Doctrine Of Manifest Disregard Promote Lawful Arbitral Awards Or Disguise Unlawful Judicial Review, Lindsay Biesterfeld
Courts Have The Final Say: Does The Doctrine Of Manifest Disregard Promote Lawful Arbitral Awards Or Disguise Unlawful Judicial Review, Lindsay Biesterfeld
Journal of Dispute Resolution
In exchange for a speedy, economical dispute resolution process, parties that submit to binding arbitration assume the risk that an arbitrator might misapply the law. United States Supreme Court precedent and federal law favor agreements to arbitrate by limiting judicial review of arbitral awards and requiring courts to "rigorously enforce arbitration agreements." These judicial constraints support the arbitral goals of efficiency and finality by reducing the risk that arbitral awards will be vacated on appeal. To balance the risk that arbitrators may abuse this standard of review, courts have supplemented restricted judicial review with a doctrine that allows an arbitral …
No Do-Overs For Parties Who Agree To Limit Review Of An Arbitrator's Decision, Patrick Gill
No Do-Overs For Parties Who Agree To Limit Review Of An Arbitrator's Decision, Patrick Gill
Journal of Dispute Resolution
Under the FAA, review of arbitration awards is limited to specific circumstances. However, in many instances, these default rules can be modified by contractual provisions including increasing or decreasing the level of review of arbitration awards. Although a broader scope of review is contrary to the main purposes of arbitration, courts have held that a contractual provision expanding judicial review is permissible. Furthermore, in some limited circumstances, courts have held that a contractual limitation on judicial review is permitted by the FAA where the restriction is clearly manifested in the contract and the process will not become unfair as a …
How Far Is Too Far: Reexamining The Continuing Extension Of Arbitral Immunity To Arbitral Organizations, Elizabeth Wilhelmi
How Far Is Too Far: Reexamining The Continuing Extension Of Arbitral Immunity To Arbitral Organizations, Elizabeth Wilhelmi
Journal of Dispute Resolution
The protection of arbitration proceedings from judicial inquiry is restricted not only by the limited grounds for vacatur, but also by the application of arbitral immunity, a protection derived from the judicial immunity applied to judges. This immunity strengthens the finality of arbitration by restricting judicial review of decisions protected by arbitral immunity, but at the same time, it raises the question of whether courts should give arbitration the same broad immunity that protects judges. Despite the differences between arbitration and the judicial system, the courts have applied arbitral immunity to the arbitrator's acts in the same way as they …