The Ohio State University Moritz College of Law April 2013
ADR @ Moritz

Schwartz Lecturer Chris Drahozal Questions Supreme Court Arbitration Decisions

Prof. Chris Drahozal delivers the 2013 Schwartz Lecture on “Error Correction and the Supreme Court’s Arbitration Docket.”

What is it about arbitration law and the Federal Arbitration Act (FAA) that results in error correction and factbound decision-making playing such a significant role in the Court's decisions? That question formed the focus of University of Kansas Law Professor Chris Drahozal’s 2013 Schwartz Lecture in Dispute Resolution, held on March 28, 2013 in Saxbe Auditorium.

During his speech, Prof. Drahozal examined the Court’s choice of arbitration cases over the past several years, noting a steep uptick in the number of arbitration-related decisions that are being accepted seemingly for the sole purpose of being summarily reversed by the Court rather than being decided on the merits, so-called “error correction” on by the Court. He also noted that the Court has been accepting and deciding cases that are highly fact specific, with little broad application beyond the particular case.

Through a series of graphs illustrating these points, Prof. Drahozal made recommendations on how the Court might improve its choice of arbitration cases going forward. First, he urged the Court to focus on federal court cases rather than state court cases, based largely on Justice Thomas’ view that the FAA doesn’t apply to the states. Second, he advised avoiding cases arising out of post-dispute arbitration agreements, cases in which the parties have agreed to arbitrate an already existing dispute. He closed by encouraging the Court to take cases with typical arbitration clauses, rather than extreme cases that result in narrow rulings, and not to include rulings about one area of arbitration law (like employment) in cases that deal with another area of law (like disputes between businesses).

The Schwartz Lecture on Dispute Resolution was established in 1992 as a result of the generosity of the late Stanley Schwartz Jr. (a 1947 Moritz College of Law graduate) and the Schwartz family. Professor Drahozal’s article on “Error Correction and the Supreme Court’s Arbitration Docket” will be published in the interdisciplinary Ohio State Journal on Dispute Resolution, in keeping with Mr. Schwartz’s interest in the promotion of scholarly publication in the area of dispute resolution.

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The Caucus, the newsletter published by the Moritz Program on Dispute Resolution, is designed to share ADR news with the Moritz community and beyond, as well as provide Moritz students with information regarding externship and employment opportunities. Questions regarding this publication should be directed to Erin Archerd, Langdon Fellow in Dispute Resolution.