Prof. Stipanowich Assesses “The Third Arbitration Trilogy”
Prof. Thomas J. Stipanowich of Pepperdine University School of Law has come out with a smashingly responsible analysis of the most recent Supreme Court arbitration cases. In his article, forthcoming in the American Review of International Arbitration, Stipanowich suggests that the three recent cases — Stolt-Nielsen, Rent-A-Center and AT&T Mobility – constitute a new “trilogy” of the stature of the historic Steelworkers cases in 1960. But he urges that the recent trilogy of cases are flawed in reason, devoid of emprical grounding, and potentially harmful to the development of reasoned and just public arbitration policy.
Stipanowich is critical of the Court’s analysis, asserting rather than deducing “federal substantive law” under the Federal Arbitration Act as the basis for its outcomes. He suggests that these references to such “substantive law” are “divined” or “discerned” rather than being the product of clear legal analysis, and that the Court’s avowed strong public policy concern to enforce arbitration agreements at times leads to outcomes clearly at variance with the Act. Read more »
