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Full-Text Articles in Law
When Procedure Moonlights As Reason, There Is Nothing Left To Abuse, Matthew E. Terry
When Procedure Moonlights As Reason, There Is Nothing Left To Abuse, Matthew E. Terry
Journal of Dispute Resolution
In Greenstreet v. Social Security Administration, when the Federal Circuit Court of Appeals could not discern exactly what basis upon which an arbitrator acted, it leapt past any presumption in favor of the arbitrator's discretion and found that what an arbitrator did not do was an abuse of his decision-making volition, just as an act beyond his prescriptive powers would have been an abuse of discretion. So, in attempting to weed out the arbitrariness in the arbitration processes that decide workplace punishments, the court heaped needless and unreasoned process squarely into the arbitrator's path, thereby greatly lessening the amount of …
Personal Autonomy And Vacatur After Hall Street, Richard C. Reuben
Personal Autonomy And Vacatur After Hall Street, Richard C. Reuben
Faculty Publications
This article analyzes the implications of the U.S. Supreme Court’s landmark decision in Hall Street Associates v. Mattel, Inc., 128 S.Ct. 1396 (2008), in which the Court said that arbitration parties may not contract for substantive judicial review of arbitration under the Federal Arbitration Act. The article contends that Hall Street Associates was rightly decided as a matter of dispute resolution process characteristics and values theory because it preserves arbitration’s central virtue of finality. It further argues that the Court’s insistence on the exclusivity of the FAA’s statutory grounds for vacatur should spell the end of the so-called “non-statutory” grounds …
Research In International Commercial Arbitration: Special Skills, Special Sources, S. I. Strong
Research In International Commercial Arbitration: Special Skills, Special Sources, S. I. Strong
Faculty Publications
Experts agree that international commercial arbitration relies far more heavily on written advocacy than litigation does, yet very few practitioners and arbitrators have ever received any specialized training in how to research and present written arguments in this unique area of law. Newcomers to the field are particularly disadvantaged, since the legal authorities used in international commercial arbitration are unique and novices often do not know how to find certain materials, if they are even aware that these items exist. This article helps deepen the understanding of the practice of international commercial arbitration by describing how experienced international advocates and …
Nonconsensual Nonbinding = Nonsensical? Reconsidering Court-Connected Arbitration Programs, Amy J. Schmitz
Nonconsensual Nonbinding = Nonsensical? Reconsidering Court-Connected Arbitration Programs, Amy J. Schmitz
Faculty Publications
Policymakers have adopted programs mandating parties to submit their disputes to court connected arbitration hoping to garner efficiency benefits commonly associated with contractual Federal Arbitration Act (FAA) arbitration. Mandatory nonbinding arbitration, however, is ill-equipped for this task because it lacks the consensual core and finality of FAA arbitration. Instead, it often adds an inefficient layer to the litigation process and may harm those least able to protect themselves from coerced settlements or burdens of protracted litigation.
Crowning The New King: The Statutory Arbitrator And The Demise Of Judicial Review, Michael H. Leroy
Crowning The New King: The Statutory Arbitrator And The Demise Of Judicial Review, Michael H. Leroy
Journal of Dispute Resolution
Judicial review of arbitration awards is highly deferential-but when does it become rubber stamping? Using original data, I find that federal courts vacated only 4.3 percent of 162 disputed arbitration awards. A sub-sample of forty-four employment discrimination arbitration awards under Title VII produced similar results. By comparison, federal Courts of Appeals in 2006 reversed 12.9 percent of 5,917 rulings made by civil court judges on the merits of legal claims.
Is It The Real Thing: How Coke's One-Way Binding Arbitration May Bridge The Divide Between Litigation And Arbitration, Suzette M. Malveaux
Is It The Real Thing: How Coke's One-Way Binding Arbitration May Bridge The Divide Between Litigation And Arbitration, Suzette M. Malveaux
Journal of Dispute Resolution
This article is comprised of six parts. Part I introduces the topic. Part II examines the growing prevalence of compulsory pre-dispute arbitration agreements in employment contracts and the problems with such agreements. Part III describes the challenges employees face in the federal court system: higher pleading thresholds for intentional discrimination claims, the federal judiciary's current antagonism toward employee claims of discrimination (as demonstrated by recent empirical studies), and a beleaguered EEOC. Part IV describes how Coke adopted one-way binding arbitration and explores the ways in which this alternative is preferable to both mandatory arbitration and civil litigation for employees, employers, …
Immunity And Justice For All: Has The Second Circuit Overextended The Doctrine Of Absolute Immunity By Applying It To Arbitration Witnesses, W. Monroe Bonnheim
Immunity And Justice For All: Has The Second Circuit Overextended The Doctrine Of Absolute Immunity By Applying It To Arbitration Witnesses, W. Monroe Bonnheim
Journal of Dispute Resolution
In Rolon v. Henneman, the Second Circuit Court of Appeals considered whether absolute immunity should apply to witnesses in an arbitration proceeding. The common law doctrine of absolute immunity from civil liability for judges has a long pedigree dating back to English courts. When the United States Supreme Court reaffirmed the doctrine after Congress passed 42 U.S.C. § 1983, the Court cautioned against extending the doctrine beyond judges. Since then, however, the doctrine has been extended to prosecutors and witnesses at public trials, and more recently, to arbitrators and arbitral institutions. Whether absolute immunity should be further extended to witnesses …
What's Fair Is Fair: Tribal Assertions Of Jurisdiction Over Arbitration Decisions, Matthew E. Terry
What's Fair Is Fair: Tribal Assertions Of Jurisdiction Over Arbitration Decisions, Matthew E. Terry
Journal of Dispute Resolution
While the modem trend is to provide tribes with a certain amount of latitude in some areas, the court in First Specialty Insurance Corp. v. Confederated Tribes of the Grand Ronde Community of Oregon was tasked with shoehorning the facts into the applicable precedent because the various doctrines defining the limits of tribal jurisdiction under the Federal Arbitration Act ("FAA") have not often been tested, as they were here. The district court's opinion followed the modem trend by upholding the Tribe's assertion of its court system's jurisdiction, yet the court did not establish a precedent that should trouble the notion …