March 7, 2013

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Lecture to focus on Supreme Courtís error-correction

 

An internationally renowned arbitration expert will discuss “Error Correction and the Supreme Court’s Arbitration Docket” the annual Schwartz Lecture on Dispute Resolution, scheduled for March 28 at The Ohio State University Moritz College of Law.

Christopher R. Drahozal is the John M. Rounds Professor of Law and associate dean for research and faculty development at The University of Kansas School of Law. He is an associate reporter for the Restatement (Third) of U.S. Law on International Commercial Arbitration and chair of the Searle Civil Justice Institute’s Arbitration Task Force. He has written extensively on the law of economics and arbitration in both casebooks and legal journals.

In his lecture, Drahozal will cover how Supreme Court justices long have repeated the maxim that "[t]he Supreme Court is not a court of error correction." What they mean is that "[t]he function of the Supreme Court is conceived to be, not the remedying of a particular litigant's wrong, but the consideration of cases whose decision involves principles, the application of which are of wide public or governmental interest." Indeed, a common basis for arguing against the court's grant of certiorari is that the case should not be reviewed because it is "factbound"— i.e., dependent on its particular facts and not likely to result in a decision of widespread import.

When it comes to arbitration law, however, a number of the court's cases are exactly that — factbound decisions that do little more than correct errors by lower courts. The surprisingly large number of summary reversals in arbitration cases is the clearest illustration. In addition, however, a number of other Supreme Court arbitration cases in recent years have involved highly fact-specific decisions that either might, or in fact did, have little effect beyond their particular facts. And some decisions that did have broader effect were actually – according to subsequent Supreme Court decisions – based on unusual facts and should not have been applied so broadly.

So what is it about arbitration law and the Federal Arbitration Act that results in error correction and factbound decision-making playing such a significant role in the court's decisions? Additionally, Drahozal will argue that the generalist legal background of Supreme Court justices (and their law clerks) leads them to overlook important nuances in the facts of arbitration cases before the court on certiorari. He will conclude by making several recommendations of simple steps the court could take to avoid some of its more limited or problematic decisions.

The lecture begins at noon in the William B. Saxbe Law Auditorium, and lunch will be provided. For more information on Drahozal and his topic, visit here.

The Schwartz Lecture on Dispute Resolution was established in 1992 as a result of the generosity of the late Stanley Schwartz Jr. ’47 and the Schwartz family. Each lecture is published in the interdisciplinary Ohio State Journal on Dispute Resolution, in keeping with Schwartz’s interest in the promotion of scholarly publication in the area of dispute resolution.

SideBar is a monthly electronic newsletter for Moritz College of Law alumni. Questions regarding this publication should be directed to moritzlawnews@osu.edu.