March 19, 2013

The Supreme Court and the Future of Arbitration

By Art Hinshaw

At the 2012 AALS meetings Ron Aronovsky (Southwestern) organized the ADR Section’s program entitled The Supreme Court and the Future of Arbitration.  Here’s a short blurb describing the program.

Over the past twenty five years, the range of disputes subject to binding arbitration – particularly as a result of pre-dispute arbitration agreements — has grown dramatically. The U.S. Supreme Court has issued a series of arbitration law decisions on such topics as the availability of class arbitration, the preemptive effect of the Federal Arbitration Act (FAA), the scope of judicial review of arbitral awards under the FAA, the enforceability of mandatory pre-dispute arbitration agreements, and the arbitrability of public law claims. These often controversial decisions have had an enormous impact on business, consumers and the workplace and have transformed much of the U.S. economy’s dispute resolution landscape.  This program will explore the future of arbitration in light of these Supreme Court cases

This was a fantastic panel, and the papers resulting from this program have now been published in the Southwestern Law Review.  The papers are available online here, and the lineup is below.

AT&T Mobility and the Future of Small Claims Arbitration
Jill I. Gross

Mandatory Binding Arbitration Clauses Prevent Consumers from Presenting Procedurally Difficult Claims
Jean R. Sternlight

The Supreme Court and the Future of Arbitration: Towards a Preemptive Federal Arbitration Procedural Paradigm?
Ronald G. Aronovsky

Mandatory Predispute Consumer Arbitration, Structural Bias, and Incentivizing Procedural Safeguards
Nancy A. Welsh

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Comments

  • Berkeley Mengwasser says:

    It is interesting to me that arbitration has so much more case law and rulings on how to regulate the arbitration process, as opposed to negotiation and mediation processes.

    It makes sense that arbitration, which is more similar to litigation, would require more dispute settlements by the courts (and even the Supreme Court as the post above described) because legal actions that are also used in litigation are included in the arbitration process (such as using hearings, witnesses, and exhibits).

    The courts probably want to maintain as much commonality as possible among litigation and arbitration, but I am curious to see if mediation and negotiation processes become the subject of legal dispute and regulation anytime in the near future.

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