Arbitration in America
Transactional lawyers and litigation counsel alike will face arbitration as a significant option for resolving their clients' legal disputes. This course covers the development of alternative dispute resolution in the U.S., with an emphasis on arbitration under the Federal Arbitration Act (FAA). It describes how the federal and state governments have gradually come to accept and now favor the private settlement of commercial disputes based on consent of parties. It examines the many different contexts and industries in which arbitration is conducted, including government-mandated programs for labor disputes, systems established by specific industries such as the diamond trade and professional sports associations, the construction industry, and commercial disputes in general; more controversial is the use of arbitration for consumer, class action and employment disputes. This historic reversal of power over adjudication from government to the private sector has alleviated the delays and uncertainties of judicial litigation, and has created a huge and growing legal field of attorneys, arbitrators, and service providers fashioning and administering systems ranging in complexity from the most formal mega dispute with full discovery to the resolution of mini disputes through mechanically applied algorithms. Allowing private parties to agree on the law and procedures that govern their disputes has led, moreover, to numerous clashes of interests, including evasion of public policies established by legislation. How to deal with alleged violations of public policy, errors of law, erroneous findings of fact, unfair procedures, unequal negotiating power, and arbitrator bias are among the continuing and complex difficulties currently faced by courts and legislatures. The US Supreme Court's recent attempts to deal with several aspects of these difficulties will be considered. We will also examine the less heralded but highly significant use of mediation as a relatively speedy and inexpensive method for private dispute resolution, and the recent development of hybrid systems and other innovations. Elements used in grading: Class participation, attendance, written assignments and final exam.
Instructors for this course (Past and Present)Janet Martinez