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Program on Alternative Dispute Resolution

2012-13 Schwartz Lecture on Dispute Resolution

Error Correction and the Supreme Court's Arbitration Docket

March 28, 2013 | Noon | Saxbe Auditorium

Christopher Drahozal

The 2013 Schwartz Lecture on Dispute Resolution will be given by Christopher R. Drahozal, an internationally renowned arbitration expert. On March 28, 2013 at noon in Saxbe Auditorium, he will speak on "Error Correction and the Supreme Court's Arbitration Docket."

Supreme Court Justices from William Taft through Stephen Breyer have repeated the maxim (also reflected in the Court's rules) 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. Of course, not all arbitration cases have such limited reach. Some, such as AT&T Mobility v. Concepcion, have been applied widely by the lower courts. But even Concepcion could have been limited to its facts, and some courts (albeit only a very small minority) have in fact done so.

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? Certainly an important factor is ongoing resistance to the Court's arbitration decisions in the lower courts, which explains the summary reversals and some of its merits decisions. But in addition, Professor 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. Arbitration law is by no means unique in this regard, and one caveat to his conclusions on error correction is the need to compare arbitration cases to other types of cases decided by the Court before drawing any conclusions about whether arbitration cases are unusual.

Professor Drahozal will conclude by making several recommendations of simple steps the Court could take to avoid some of its more limited or problematic decisions. Those steps include: (1) avoiding cases arising out of post-dispute arbitration agreements: (2) reviewing state court cases only when the issue presented is one of FAA preemption; and (3) choosing cases with typical arbitration clauses, not atypical ones.

About Christopher R. Drahozal

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 the U.S. Law on International Commercial Arbitration, and was the Chair of the Arbitration Task Force of the Searle Civil Justice Institute. He is serving as a Special Advisor to the Consumer Financial Protection Bureau, assisting with its statutorily-mandated study of arbitration clauses in consumer financial services contracts.

Professor Drahozal has written extensively on the law and economics of arbitration. He has authored a casebook on commercial arbitration published by Lexis Publishing (soon to be in its third edition) and a co-edited a book on empirical research on international commercial arbitration published by Kluwer Law International. His articles have appeared in the Journal of Legal Studies, the Journal of Empirical Legal Studies, Law and Contemporary Problems, the Vanderbilt Law Review, the Illinois Law Review, and the International Review of Law and Economics, among others. He has made presentations on arbitration law and practice throughout the United States, Canada, Europe, and Asia.

Prior to teaching, Professor Drahozal was in private law practice in Washington, D.C., and served as a law clerk for the Iran-U.S. Claims Tribunal, the United States Supreme Court, and the United States Court of Appeals for the Fifth Circuit.

About the Schwartz Lecture on Dispute Resolution

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. Each lecture is 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.

Previous Schwartz Lectures

  • 2011-12: "Negotiating in the Shadow of Organizations: Doing Well by Doing Good," Deborah M. Kolb, Deloitte Ellen Gabriel Professor for Women and Leadership (Emerita) and Distinguished Research Fellow, The Center for Gender in Organizations at the Simmons School of Management
  • 2010-11: "The Timing of Truth, Reconciliation and Justice After War," John Braithwaite, Australian Research Council Federation Fellow
  • 2009-10: "Making Deliberative Democracy Practical: Public Consultation and Dispute Resolution," James Fishkin, Stanford University
  • 2008-09: "Never Say No: The Law, Economics and Psychology of Counteroffers," Ian Ayres, William K. Townsend Professor, Yale Law School
  • 2007-08: "Deliberative Democracy and Dispute Resolution," Lawrence Susskind, Ford Professor of Urban and Environmental Planning at MIT, Vice-Chair for Instruction at the Program on Negotiation at Harvard Law School, Founder, Consensus Building Institute
  • 2006-07: "Good Lawyers Should be Good Psychologists: Insights for Interviewing and Counseling Clients," Jean R. Sternlight, Saltman Professor of Law and Director, Saltman Center for Conflict Resolution at the University of Nevada Las Vegas William S. Boyd School of Law
  • 2005-06: "Developing the MRI (Mediation Receptivity Index)," Frank E.A. Sander, Bussey Professor of Law at Harvard College
  • 2004-05: "Mercy, Clemency, and Capital Punishment: Two Accounts," Austin Sarat, Professor of Law at Amherst College
  • 2004-05: "Psychological Impediments to Mediation Success: A Theoretical Look at Practical Problems," Russell Korobkin, Professor of Law at UCLA
  • 2003-04: "Strategic Mediation," Francis McGovern, Professor of Law at Duke University
  • 2002-03: "Gender, Human Rights, and Peace Agreements," Christine Chinkin, Professor of Law at the London School of Economics
  • 2001-02: Lecture was delivered by I. William Zartman, Jacob Blaustein Professor of International Organization and Conflict Resolution, and Director of African Studies and Conflict Management Programs at Paul H. Nitze School of Advanced International Studies (SAIS), Johns Hopkins University.