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Keeping Arbitrations from Becoming Kangaroo Courts

Jeffrey W. Stempel

University of Nevada, Las Vegas, William S. Boyd School of Law

Nevada Law Review, Vol. 8, p. 251, 2007
UNLV William S. Boyd School of Law Legal Studies Research Paper No. 08-05

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. In this article, I focus more specifically on the questions of impartiality, adherence to substantive law, and judicial review, although these concerns are of course also dimensions of any reasonably broad inquiry into quality.

The explosion of mass arbitration during the late 20th Century has created too much potential that arbitration could become an unfair forum for dispute resolution. Of particular concern is the impartiality and competence of the arbitrator, consistency with substantive law, and quality control through appellate review. This article advances three operational proposals for achieving rough equivalency between arbitration and litigation: (1) a licensing system for arbitrators in mass arbitrations; (2) a default rule that arbitration follow substantive law and reach results consistent with substantive law; and (3) replacement of the current deferential standard of review for arbitration awards with appellate review similar to that accorded trial court decisions. However, parties in traditional commercial arbitration should be permitted to contract around the requirement of licensed arbitrators bound to follow substantive law and should also be permitted to stipulate to restricted judicial review.

Number of Pages in PDF File: 21

Keywords: Arbitration, Federal Arbitration Act, Dispute Resolution, Judicial Review, Due Process

JEL Classification: K10, K12, K20, K30, K40, K41, K49

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Date posted: December 30, 2007 ; Last revised: March 16, 2008

Suggested Citation

Stempel, Jeffrey W., Keeping Arbitrations from Becoming Kangaroo Courts. Nevada Law Review, Vol. 8, p. 251, 2007; UNLV William S. Boyd School of Law Legal Studies Research Paper No. 08-05. Available at SSRN: https://ssrn.com/abstract=1050681

Contact Information

Jeffrey W. Stempel (Contact Author)
University of Nevada, Las Vegas, William S. Boyd School of Law ( email )
4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States
702-895-2361 (Phone)
702-8952482 (Fax)
HOME PAGE: http://law.unlv.edu
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