{"id":928,"date":"2011-09-06T23:02:59","date_gmt":"2011-09-07T03:02:59","guid":{"rendered":"http:\/\/businessconflictmanagement.com\/blog\/?p=928"},"modified":"2011-09-06T23:02:59","modified_gmt":"2011-09-07T03:02:59","slug":"prof-stipanowich-assesses-the-third-arbitration-trilogy","status":"publish","type":"post","link":"http:\/\/www.businessconflictmanagement.com\/blog\/2011\/09\/prof-stipanowich-assesses-the-third-arbitration-trilogy\/","title":{"rendered":"Prof. Stipanowich Assesses "The Third Arbitration Trilogy""},"content":{"rendered":"

Prof. Thomas J. Stipanowich<\/a>\u00a0 of Pepperdine University School of Law has come out with a smashingly responsible analysis of the most recent Supreme Court arbitration cases.\u00a0 In his article<\/a>, forthcoming in the American Review of International Arbitration<\/em>, Stipanowich suggests that the three recent cases — Stolt-Nielsen<\/a><\/em>, Rent-A-Center<\/em> <\/a>and AT&T Mobility<\/em> <\/a>— constitute a new “trilogy” of the stature of the historic Steelworkers<\/a><\/em> cases in 1960.\u00a0 But he urges that the recent trilogy of cases are flawed in reason, devoid of emprical grounding, and potentially harmful to the development of reasoned and just public arbitration policy.<\/p>\n

Stipanowich is critical of the Court’s analysis, asserting rather than deducing “federal substantive law” under the Federal Arbitration Act as the basis for its outcomes.\u00a0 He suggests that these\u00a0references to such “substantive law” are “divined” or “discerned” rather than being the product of clear legal analysis, and that the Court’s avowed strong public policy concern\u00a0to enforce arbitration agreements at times leads to outcomes clearly at variance with the Act.<\/p>\n

For example, the arbitration agreement in Rent-A-Center<\/em> was voided by the lower court on\u00a0“such grounds as exist at law or in equity for the revocation of any contract,” not just for contracts to arbitrate.\u00a0 Yet the Supreme Court ordered enforcement.\u00a0 Prof. Stipanowich writes that the proffered basis seems to boil down to\u00a0principles that the\u00a0Court “‘discerns’ [as] new Federal substantive law surrounding the FAA.”<\/p>\n

With the skill and clarity that one expects from the country’s leading arbitration scholar, Stipanowich demonstrates that the arbitral process is not as\u00a0inflexible, and the public policies it implicates not as simple, as the Court and legislatures\u00a0would suggest.\u00a0 For at least twenty years, legitimate concerns have been expressed to conduct private adjudication in such a way as\u00a0to protect the interests, rights, and access to justice of individual consumers and employees (for example).\u00a0\u00a0The consequences of class actions are\u00a0broader and more pervasive\u00a0than a narrow focus on arbitration alone would suggest.\u00a0 The infinite flexibility of arbitration to address particular contexts\u00a0is demonstrated by Stipanowich’s references to state Lemon Laws, the availability of online dispute resolution processes, and arbitration conducted as part of regulatory schemes such as FINRA.<\/p>\n

Compared to Stipanowich’s approach to the area, the Court’s efforts seem pedantic, uninformed and policy-driven.\u00a0 Worse, these judicial outcomes threaten to marginalize American arbitration jurisprudence, as\u00a0American law and policy becomes increasingly out of step\u00a0with broad international trends ensuring meaningful judicial review of\u00a0arbitration agreements and awards.<\/p>\n

We recommend the Professor’s article for a definitive summary of the current judicial and legislative miscomprehension of this important ADR process, and for an appreciation of the nuances that need to be understood by those seeking to articulate public policy.<\/p>\n","protected":false},"excerpt":{"rendered":"

Thomas J. Stipanowich’s new article on “The Third Arbitration Trilogy” invites a more nuanced approach to public policy than the Supreme Court or legislators seem disposed to grant.<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[9,34],"tags":[20,33],"class_list":["post-928","post","type-post","status-publish","format-standard","hentry","category-arbitration","category-united-states","tag-arbitration","tag-public-policy"],"aioseo_notices":[],"_links":{"self":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/928","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/comments?post=928"}],"version-history":[{"count":0,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/928\/revisions"}],"wp:attachment":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/media?parent=928"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/categories?post=928"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/tags?post=928"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}