The US Supreme Court on Federal Pre-Emption and Appeals on Questions of Law by Consent -A Case Note (original) (raw)
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The United States Supreme Court has expanded its arbitration preemption jurisprudence to unprecedented and unexplained bounds, ultimately creating a new type of preemption, herein coined “impact preemption.” As applied by the Court, the scope of impact preemption is broader even than field preemption. The future policy implications of impact preemption are significant. Impact preemption shifts the balance of regulatory power in the dual federal-state arbitration system toward the federal courts and away from state regulatory authorities, contrary to the language and legislative history of the Federal Arbitration Act (FAA). In addition, impact preemption has the potential to undermine the stability of the national arbitration system for consumers and contracting parties who utilize arbitration agreements in commerce. This Article traces the history of three fundamental flaws in prior Supreme Court rulings that ultimately resulted in the creation of impact preemption. First, the Court...
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Arbitration is supposed to be final and binding, but federal and state laws, and judicial doctrines, allow courts to vacate arbitrator awards. This study contemplates the role of courts when they review awards that "manifestly disregard the law"-a term that means the arbitrator knew the law but chose to ignore it. In 2008 in Hall Street Associates v. Mattel, Inc., the U.S. Supreme Court ruled that courts cannot review awards beyond the Federal Arbitration Act's (FAA) express terms and stated: "Maybe the term 'manifest disregard' [in the Court's 1953 decision in Wilko v. Swan] was meant to name a new ground for review, but maybe it merely referred to the [FAA's] § 10 grounds collectively, rather than adding to them." This Article analyzes "manifest disregard" through historical and empirical methods and contends that Congress inadvertently omitted "manifest disregard" from the FAA. Unfortunately, the Court's muddled analysis in Hall Street as to "manifest disregard" has split federal circuits. The Court should affirm this standard as it does not erode finality, and judicial review must be allowed to correct an arbitrator's intentional flouting of the law. If "manifest disregard" is eliminated, arbitral finality will rise above the crowning principle of the American constitutional system: "No man in this country is so high that he is above the law."
SSRN Electronic Journal, 2015
theorizing explanations for customers' negative perceptions of the fairness of securities arbitration); Jill I. Gross, McMahon Turns Twenty: The Regulation of Fairness in Securities Arbitration, 76 U. CIN. L. REV. 493 (2008) [hereinafter Gross, McMahon Turns Twenty] (concluding that securities arbitration is a fair process). But see Jill I. Gross, AT&T Mobility and the Future of Small Claims Arbitration, 42 Sw. U. L. REV. 47 (2012) [hereinafter Gross, Small Claims Arbitration] (critiquing "paper" arbitration of low-dollar-value claims as unfair). 2 "Mandatory" arbitration in this context means arbitration resulting from a predispute arbitration clause in an adhesive agreement between parties of unequal bargaining power.
The Federal Arbitration Act as Procedural Reform
SSRN Electronic Journal, 2014
represent dramatic developments with implications that extend far beyond the arbitration context. These decisions are a product of what the author refers to as the "contract model" of the Federal Arbitration Act (FAA). Heretofore largely unquestioned, the contract model posits the FAA's original and dominant purpose as the promotion of private ordering in dispute resolution, as free as possible from state regulation. The model has, in turn, helped courts and commentators claim that the FAA requires arbitration agreements to be enforced strictly "according to their terms"-without regard to the way those agreements might compromise procedural values, such as when they preclude classwide relief. This Article questions both the descriptive accuracy and normative persuasiveness of the contract model. It argues that when placed in their proper historical context, the FAA's text and legislative history appear equally consistent (if not more so) with a purpose to improve upon the widely discussed procedural failings of the