Dispute Resolution and Arbitration Commons^™

At&T Mobility And Faa Over-Preemption, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

The Supreme Court's recent arbitration law decisions reflect the Court's strong support for arbitration agreements, but also severely limit the states’ powers to police the fairness of arbitration. In particular, the Court’s decision in AT&T Mobility v. Concepcion, LLC expands the FAA preemption doctrine beyond its prior boundaries, signaling how far the Court is willing to go to support arbitration clauses at the expense of states’ rights and the values of federalism. This article explores the impact of AT&T Mobility on the preemption of state arbitration law, and the concomitant impact on the balance between state and federal power in …

Court Litigation Over Arbitration Agreements: Is It Time For A New Default Rule?, Jack Graves

Scholarly Works

Court litigation over the existence or validity of arbitration agreements is a major threat to the efficacy of international commercial arbitration. While New York Convention Article II(3) requires a court to “refer the parties to arbitration” when faced with a valid and effective arbitration agreement, it fails to provide any guidance with respect to the process for answering that question, thus leaving the issue to national law. A recalcitrant respondent may, therefore, have a variety of options for court challenges—based on a disparate array of national laws—in seeking to delay or at least complicate any claims subject to arbitration. This …

Article Iii Judicial Power And The Federal Arbitration Act, Roger J. Perlstadt

UF Law Faculty Publications

Arbitrators determine facts and apply law to those facts to bindingly resolve disputes between two or more parties, a task normally reserved for judges. The Federal Arbitration Act (FAA) makes agreements to arbitrate disputes enforceable, including disputes that would normally be heard by an Article III judge, such as those arising under federal law or between parties of diverse citizenship. Accordingly, disputes subject to an arbitration agreement brought before a federal court for adjudication must instead, pursuant to the FAA, be resolved by an arbitrator. Yet, while Article III ostensibly mandates that life-tenured and salary-protected judges decide such disputes, arbitrators—selected …

Arbitration Agreements That Discriminate In The Selection And Appointment Of Arbitrators, Jeff Dasteel

Richmond Journal of Global Law & Business

No abstract provided.

Court Litigation Over Arbitration Agreements: Is It Time For A New Default Rule?, Jack Graves

Scholarly Works

Court litigation over the existence or validity of arbitration agreements is a major threat to the efficacy of international commercial arbitration. While New York Convention Article II(3) requires a court to “refer the parties to arbitration” when faced with a valid and effective arbitration agreement, it fails to provide any guidance with respect to the process for answering that question, thus leaving the issue to national law. A recalcitrant respondent may, therefore, have a variety of options for court challenges—based on a disparate array of national laws—in seeking to delay or at least complicate any claims subject to arbitration. This …

End Of An Error: Replacing Manifest Disregard With A New Framework For Reviewing Arbitration Awards, The, Kenneth R. Davis

Cleveland State Law Review

Guided by the purposes of the FAA, its legislative history, and the role of commercial arbitration in modern society, this Article proposes a new framework for the judicial review of arbitration awards. Awards deciding federal statutory rights such as those conferred by securities law and civil rights law should be reviewed for errors of law. As recognized in Wilko and McMahon, federal rights deserve protection, even in arbitration. There is one other type of award that requires judicial correction. Despite the statements in Hall Street and Concepcion that the FAA provides the exclusive grounds for vacatur, the courts must correct …

Arbitration Ambush In A Policy Polemic, Amy J. Schmitz

Faculty Publications

Arbitration has been demonized in the media and consumer protection debates, often without empirical support or consideration of its attributes. This has led to renewed efforts to pass the Arbitration Fairness Action, which would bar enforcement of pre-dispute arbitration clauses in consumer, employment, and civil rights contexts. It also inspired Dodd-Frank’s preclusion of arbitration clauses in mortgage contracts, along with the Consumer Financial Protection Bureau’s charge to prohibit or limit enforcement of pre-dispute arbitration agreements in consumer financial products and services contracts. Some of this negativity toward arbitration is warranted, especially in the wake of the United Supreme Court’s recent …

Arbitration Case Law Update 2011, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

Parties to arbitration agreements sometimes invoke the judicial system to litigate collateral issues arising out of the arbitration process, such as arbitrability of some or all of the claims, arbitrator bias, and award enforcement or vacatur. When deciding these collateral issues arising out of securities arbitration, courts interpret and apply the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (2010) (FAA). In this chapter, we identify recent judicial decisions in the area of arbitration law, and analyze their impact on securities arbitration practice.

Regulating Mandatory Arbitration, Thomas V. Burch

Scholarly Works

Over the last twenty-five years, the Supreme Court has relied on party autonomy and the national policy favoring arbitration to expand the Federal Arbitration Act’s scope beyond Congress’s original intent. Choosing these loaded premises has allowed the Court to reach the outcomes it desires while denying that it is making any political or moral judgments in its decisions – a type of bureaucratic formalism. One controversial outcome of the Court’s formalism, overall, has been the increased prevalence of mandatory arbitration. Although it reduces judicial caseloads and lowers companies’ dispute-resolution costs, it also restricts or eliminates individual rights and reduces public …

Obituary For The Federal Arbitration Act: An Older Cousin To Modern Civil Procedure, An, Imre S. Szalai

Journal of Dispute Resolution

In order to explore the different ways in which the FAA is related to the development of modern civil procedure, this article is divided into four main parts. first, this article discusses how the FAA is related to the Judiciary Act of 1925. Second, this article focuses on the FAA's relationship to the enactment of the Rules Enabling Act and the related adoption of the Federal Rules of Civil Procedure. Third, this article discusses how the Supreme Court's transformation of the doctrine of personal jurisdiction in International Shoe is related to the enactment of the FAA. Fourth, this article discusses …

Arbitrating Disputes Between Companies And Individuals: Lessons From Abroad, Peter B. Rutledge, Anna W. Howard

Scholarly Works

Congress is considered changes to the Federal Arbitration Act and the central premise underlying these bills is the idea that the parties to these agreements (typically there is an individual on one side and a company on the other) tend to occupy unequal bargaining positions. The drafters of these bills conclude from this that the individual’s choice to opt into arbitration before a dispute has arisen cannot be considered free and voluntary, and thus, the arbitration agreement should be considered void and unenforceable.

Defenders of these bills claim that the United States, when compared to other nations, stands alone in …

Third Circuit Buyers Beware: District Court In Litman Holds Unconscionability Defense Contravened By Federal Arbitration Act, David C. Winters

Journal of Dispute Resolution

Without even knowing it, just about everyone has agreed to settle disputes through arbitration and has waived any rights to proceed on a class-wide basis. While many consumers do not read the fine print in the agreements they sign, a variety of companies, from cell phone providers to car dealers, have consumers agree in sales contracts to arbitrate any claims and to waive the ability to proceed with a class action claim. This was the scenario in the case of Litman v. Cellco Partnership, in which a New Jersey federal district court held that the plaintiff cell phone customers could …

Mandatory Employment Arbitration: Keeping It Fair, Keeping It Lawful, Theodore J. St. Antoine

Articles

President Obama's election and the Democrats' takeover of Congress, including what was their theoretically filibuster-proof majority in the Senate, have encouraged organized labor and other traditional Democratic supporters to make a vigorous move for some long-desired legislation. Most attention has focused on the Employee Free Choice Act (EFCA). As initially proposed, the EFCA would enable unions to get bargaining rights through signed authorization cards rather than a secret-ballot election, and would provide for the arbitration of first-contract terms if negotiations fail to produce an agreement after four months. The EFCA would apply to the potentially organizable private-sector working population; at …

Consistent With Inconsistency: The Sixth Circuit Keeps Manifest Disregard After Hall Street, John C. Steffens

Journal of Dispute Resolution

For over half a century, courts have used the doctrine of manifest disregard as a ground for vacating arbitration awards. However, the Supreme Court's ruling in Hall Street Associates. v. Mattel raised questions among lower courts regarding the viability of the doctrine after the Hall Street decision. Today, many lower courts differ in their application of the doctrine. Some courts claim that the Hall Street decision has ended the viability of manifest disregard. Others claim that the doctrine lives on as an interpretation of section 10 of the Federal Arbitration Act (FAA),5 despite the Supreme Court's ruling in Hall Street.

Arbitration Reform: What We Know And What We Need To Know, Peter B. Rutledge

Scholarly Works

The future of commercial arbitration has become a centerpiece of the domestic congressional agenda. According to one estimate, ten different bills introduced in the 110th Congress would chip away at the enforceability of pre-dispute arbitration agreements. By far the most significant bill, the Arbitration Fairness Act, would retroactively invalidate arbitration agreements in all employment, consumer, securities and franchise contracts. An especially vague provision in a prior version of the bill would invalidate agreements involving claims under statutes intended to protect civil rights or designed to regulate transactions between parties of unequal bargaining power. Are these wise moves?

The Circle Of Assent: How "Agreement" Can Save Mandatory Arbitration In Long-Term Care Contracts, Lauren Gaffney

Vanderbilt Law Review

On September 28, 1997, a resident at the Comanche Trail Nursing Center physically attacked his eighty-one-year-old roommate, Tranquilino Mendoza. As a result of the attack, Mr. Mendoza suffered a concussion and brain damage. His daughter claimed that her father was never the same after the attack and filed a lawsuit against the long-term care facility alleging negligence. In 2006, a jury awarded Mr. Mendoza $160 million.

Similarly, on April 26, 2003, a resident of the Heritage House Nursing and Rehabilitation Center allegedly attacked Carolyn Mason, another resident at the same facility. Mrs. Mason suffered a broken hip.6 Like Mr. Mendoza, …

Is It The "Real Thing"? How Coke's One-Way Binding Arbitration May Bridge The Divide Between Litigation And Arbitration, Suzette M. Malveaux

Publications

Although the scholarly literature is replete with discussion of the pros and cons of mandatory arbitration and civil litigation, relative to one another, there has been no examination of one-way binding arbitration as a potential bridge between these procedural poles. The goal of this article is to fill that void. One-way binding arbitration requires an employee to use arbitration to resolve workplace disputes, but also gives the employee, but not the employer, the option of rejecting the arbitrator’s decision. In the event the employee is not satisfied with the outcome of arbitration, she can still pursue her claim in court. …

Arbitration After Hall Street V. Mattel: What Happens Next?, Stanley A. Leasure

University of Arkansas at Little Rock Law Review

No abstract provided.

Who Can Be Against Fairness? The Case Against The Arbitration Fairness Act, Peter B. Rutledge

Scholarly Works

In this brief essay, I hope to lay out the case against the Arbitration Fairness Act.3 Part I of this Article addresses the “findings” on which the act is premised. It explains how in several respects the current research on arbitration flatly contradicts the premises animating those findings (in other respects, the data is incomplete, so the “findings” at best are better described as “untested hypotheses” or “assumptions”). Part II of this Article explains why postdispute arbitration is not a viable alternative to our present system of enforceable predispute arbitration clauses.

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 …

Revising The Faa To Permit Expanded Judicial Review Of Arbitration Awards, Sarah Rudolph Cole

Nevada Law Journal

No abstract provided.

Dangers Of Deference To Form Arbitration Provisions, Amy J. Schmitz

Nevada Law Journal

No abstract provided.

Extending Owbpa Notice And Consent Protections To Arbitration Agreements Involving Employees And Consumers, Christopher J. Kippley, Richard A. Bales

Nevada Law Journal

No abstract provided.

Measures To Encourage And Reward Post-Dispute Agreements To Arbitrate Employment Discrimination Claims, Michael Z. Green

Nevada Law Journal

No abstract provided.

Process Purity And Innovation: A Response To Professors Stempel, Cole, And Drahozal, Richard C. Reuben

Nevada Law Journal

No abstract provided.

Federal Common Law And Arbitral Power, Alan Scott Rau

Nevada Law Journal

No abstract provided.

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 Of Nursing Home Claims: Oklahoma Goes Its Own Way, Stanley A. Leasure

Oklahoma Law Review

No abstract provided.

Keeping Arbitrations From Becoming Kangaroo Courts, Jeffrey W. Stempel

Scholarly Works

Arbitration has grown rapidly during the past 20 years. Particularly notable and problematic is the rapid onset of new or mass arbitration that has resulted from the judiciary's modern favorable attitude toward enforcement of arbitration clauses, even those imposed upon consumers, employees, small vendors, and debtors as part of a standardized contract of adhesion. In a separate article (See "Mandating Minimum Quality in Mass Arbitration," 76 U. Cin. L. Rev. (forthcoming 2007)), I present a more comprehensive list of what I regard as the necessary steps that must be taken to insure minimally acceptable quality and fairness in mass arbitration. …

Judicial Review Of International Commercial Arbitral Awards By National Courts In The United States And India, Aparna D. Jujjavarapu

LLM Theses and Essays

Article V of the New York convention lays down the provisions under which the recognition and enforcement of an arbitral award may be refused. The United States and India are signatories to the Convention. Section 10(a) of the Federal Arbitration Act in the United States limits the scope of judicial review of the arbitral awards to a clear list of grounds of vacatur. The national courts of the United States have recognized several non-statutory grounds of which "manifest disregard of the law" as a standard of review is the focus in this thesis. In fact, the state of Georgia has …