Tuesday, March 12, 2013

Oddball Arbitration

OddMany Workplace Prof Blog readers will recall Suja Thomas's presentation at January's AALS Conference / Employment Discrimination panel in which she argued that Twombly, Wal-Mart, and Ricci are oddball cases—cases with atypical facts in which the Court made broad changes to the law in a way that significantly affects cases with more typical facts.  Since then, she has written an article entitled The Oddball Doctrine: How Atypical Cases Make Bad Law in which she argues  that the Court should exercise restraint by not making legal changes in these types of cases.  During Suja’s presentation, it occurred to me that the Oddball Doctrine could apply to many of the Court’s recent arbitration decisions.

That inspiration has resulted in my most recent article (co-authored with Mark Gerano; forthcoming 30 Hofstra JLEL (2013)) Oddball Arbitration.  The abstract is below.  I've also posted over on PrawfsBlawg an attempt to crowdsource other areas of the law in which the Court may be using cases with oddball facts to shape the law under the political radar.  Check it out.

Congress passed the FAA in 1925 to resolve commercial disputes involving merchants. Since then, the Supreme Court has dramatically expanded the scope of the FAA and applied it in the employee and consumer settings. More recently the Supreme Court has chosen for its arbitration docket a set of cases with wholly atypical fact patterns in what appears to be a deliberate effort – successful so far – to advance its pro-arbitration policy agenda without provoking a political backlash. This article describes three oddball arbitration cases and argues that their atypical facts have permitted the Court to create legal rules that, while perhaps creating a just outcome in the oddball cases themselves, create unjust outcomes in the typical arbitration cases that much more commonly appear in the lower courts.



Arbitration, Scholarship | Permalink

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