Article | Revelation and Reaction: The Struggle to Shape American Arbitration

Last week, Thomas J. Stipanowich, William H. Webster Chair in Dispute Resolution and Professor of Law at Pepperdine School of Law, and Academic Director of the Straus Institute for Dispute Resolution, was the keynote speaker at Fordham Law School’s Fifth Annual Alternative Dispute Resolution Symposium. At the Symposium, Professor Stipanowich presented a paper entitled “Revelation and Reaction: The Struggle to Shape American Arbitration.” The paper discusses the U.S. Supreme Court’s recent Stolt-Nielsen S.A. v. AnimalFeeds International and Rent-A-Center, West v. Jackson decisions and will be published in Contemporary Issues in International Arbitration and Mediation: The Fordham Papers (2010).

Thanks to Paul Lurie, Partner at Schiff Hardin, LLP’s Chicago office, Disputing obtained a pre-publication version of Professor Stipanowich’s paper. The paper offers readers a timely and clear analysis of the two Supreme Court decisions and their effect on arbitration jurisprudence. First, Professor Stipanowich provides a brief history of U.S. Supreme Court decisions related to arbitration in recent decades and how the decisions expanded federal substantive law under the Federal Arbitration Act. Next, the author examines the limiting effect the Court’s decisions in Stolt-Nielsen and Rent-A-Center, West have had on the ability of lower courts to police arbitration agreements. After that, Professor Stipanowich explores arbitration reform efforts and “the dynamic political response to the extreme, non-nuanced pro-arbitration position developed in modern Court jurisprudence.” Finally, the paper concludes with a call “for carefully crafted legislation or administrative regulations limiting the use of arbitration agreements in adhesion contracts or establishing due process standards for such agreements.”

The paper may be downloaded (without charge) from Social Science Research Network.

In the future, Professor Stipanowich will expand upon this paper by analyzing the Supreme Court’s much anticipated decision in AT&T Mobility LLC v. Concepcion in an article entitled “The Third Arbitration Trilogy.” More information about the AT&T case is available here.

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