Arbitration and Assimilation

Arbitration and Assimilation

Arbitration is not necessarily antithetical to the assimilation of different groups. While intra-group arbitration allows for various groups to separate into their own cocoons, general arbitration can be the handmaiden of assimilation. Both types of arbitration deserve to flourish.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=931708

Privatizing Law Through Arbitration

Default Rules from Mandatory Rules: Privatizing Law Through Arbitration

This Article considers the extent to which the creation of law has been privatized through arbitration. It suggests that, under Supreme Court cases and other current legal doctrine, vast areas of law are privatizable and that this degree of privatization is possible only through arbitration. The implications of this point are separated along the familiar line between mandatory rules of law and default rules. The first implication is that arbitration jeopardizes mandatory rules of law. To preserve the mandatory effect of these rules, the Supreme Court must make a choice. The Court must either reverse its decisions that claims arising under otherwise mandatory rules are arbitrable, or require de novo judicial review of arbitrators' legal rulings on such claims. The second implication is that claims arising under default rules should be arbitrable and completely free from judicial review for errors of law. The arbitration of claims arising under default rules presents an opportunity to privatize the creation of vast areas of law. It is an opportunity to create private legal systems of unwritten norms, written rules, and the precedents of private courts.

Consumer Arbitration as Exceptional Consumer Law

Consumer Arbitration as Exceptional Consumer Law.  This article (part of a symposium on arbitration held by the McGeorge School of Law) defends the contractual approach to arbitration law.

Arbitration and Unconscionability

Wake Forest Law Review.

This article advocates the contractual approach over competing approaches to issues of unconscionability in arbitration.

Punitive Damages in Arbitration

A contractualist approach to the question of whether arbitrators may award punitive damages. Addresses choice-of-law clauses and constitutional issues. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=996742

 
Fordham Law Review Vol. 63, No. 529, 1994

Employment Arbitration and Voluntary Consent

Ware, Stephen J., Employment Arbitration and Voluntary Consent. Hofstra Law Review, Vol. 25, No. 83, 1996. Available at SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=10318