Process Purity and Innovation in Dispute Resolution: A Response to Professors Stempel, Cole, and Drahozal
39 Pages Posted: 19 Aug 2007
This article uses a "process characteristics and values" approach to make the case against displacing arbitration finality with substantive judicial review. It responds to a trio of articles in a forthcoming Nevada Law Review symposium on whether and how the Federal Arbitration Act should be amended. In one article, Nevada Law Professor Jeffrey Stempel contends all arbitration awards should be subject to substantive judicial review similar to that of public trial courts. In a second article, Ohio State Professor Sarah Cole argues that substantive review should generally be permitted when the parties agree to it by contract, an issue now pending before the U.S. Supreme Court. In the third article, Kansas Professor Chris Drahozal contends substantive review of arbitration awards should be available for arbitral awards that are in manifest disregard of the law, thus generally codifying a widely held common law view.
While all of the arguments they present are plausible and have their compelling points, they nonetheless miss the mark, and rather widely. In my view the displacement of finality with substantive judicial review, if codified, will greatly undermine virtually all of the central process characteristics and values of arbitration, its attractiveness as an alternative to public adjudication or negotiated settlement, and its utility as an aid to the judiciary as a forum for the expeditious resolution of disputes. Rather than requiring or permitting substantive judicial review, in my view the FAA should continue to hold the line with its limited grounds for judicial review, and make clear that parties cannot contract for substantive judicial review and that courts cannot engage in substantive review for awards that are in manifest disregard of the law. Further, Congress should reclaim its legacy and amend the FAA to make clear that arbitration under the Act must be based on an actual agreement to arbitrate in order to ameliorate some of the underlying concerns that may in part be animating the Stempel, Cole, and Drahozal proposals.
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