Thanks also to Christopher Morel and his fellow editors at the Columbia Law Review for their excellent editorial suggestions and assistance. Deane School of Law at Hofstra University, the University of Virginia School of Law, and the Legal Studies & Business Ethics Department at the Wharton School. For helpful comments and discussions, I thank Will Baude, Christian Burset, Robin Effron, Bill Eskridge, Sean Farhang, Jonah Gelbach, Heather Gerken, Maria Glover, Jeff Gordon, Michael Heller, Bert Huang, Olati Johnson, Jody Kraus, Yael Lifshitz, Ryan Liss, Anna Lvovsky, Henry Monaghan, John Morley, Jonathan Nash, Luke Norris, Shaun Ossei-Owusu, Dave Pozen, Judith Resnik, Emily Stolzenberg, Susan Sturm, Eric Talley, and Aaron Tang, as well as participants in the Columbia Law School Associates & Fellows Workshop, the Ninth Annual Junior Faculty Federal Courts Workshop, and faculty workshops at the Maurice A. ![]() Even if courts continue to enforce arbitration clauses more often than arbitration’s critics would prefer, they should police arbitration’s delegations more closely than the law now permits.Īssociate in Law, Columbia Law School. But whereas most scholars have focused on restricting access to arbitration’s delegations by deeming broad categories of arbitration clauses unenforceable, this Article suggests adapting civil procedure’s delegation-policing doctrines for arbitration. Civil procedure’s delegation-policing doctrines allow the state not only to protect private parties from harm but also to avoid becoming complicit in private exercises of delegated power that offend important public values.Īrbitration’s delegations of state power present many of the same problems as civil procedure’s, and scholars have rightly criticized the current arbitration regime for essentially writing a blank check to private parties. It does so in three main ways: by rescinding delegated power, as in the appointment of discovery masters by withholding enforcement from an exercise of delegated power, as in civil Batson and by punishing abuse of delegated power, as in Rule 11 sanctions. But rather than limit private parties’ access to delegated power before any abuse has occurred, civil procedure generally polices its delegations for abuse after the fact. With these delegations comes the potential for abuse. From summonses to subpoenas to settlements, civil procedure pervasively delegates state power during ordinary civil litigation. This Article challenges that assumption and argues that we can address many of the concerns about arbitration by drawing on civil procedure’s solutions to its own delegation problem. An implicit assumption underlying this critique is that civil procedure, in contrast to arbitration, does not delegate significant state power to private parties. ![]() Many scholars have criticized arbitration for, among other things, “privatizing” or “delegating” the state’s dispute-resolution powers and allowing private parties to abuse those powers with virtual impunity. The rise of arbitration has been one of the most significant developments in civil justice.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |