Margaret L. Moses Copyright (c) 2011 All rights reserved. http://works.bepress.com/margaret_moses Recent documents in Margaret L. Moses en-us Tue, 25 Oct 2011 11:45:23 PDT 3600 BEYOND JUDICIAL ACTIVISM: WHEN THE SUPREME COURT IS NO LONGER A COURT http://works.bepress.com/margaret_moses/5 http://works.bepress.com/margaret_moses/5 Mon, 28 Feb 2011 16:42:34 PST Our Supreme Court, in recent decisions, has reached out beyond the cases that were put before it by litigants to decide issues that were not in dispute between the parties. The four Supreme Court decisions discussed in this article, Citizens United v. FEC, Ashcroft v. Iqbal, Montejo v. State of Louisiana, and Gross v. FBL, have frequently been criticized because of the changes in law they effected; this article, however, focuses on the process. When the Court decides its own questions, rather than those presented by the parties, it does so without the benefit of a record created below on the question, without the opinions of lower court judges, and sometimes without the briefing of the issue by the parties or amici. In the cases discussed, the Court has also ignored traditional prudential practices, such as the avoidance canon for constitutional issues, the refusal to consider issues neither pressed nor passed upon below and the rejection of issues raised for the first time in Respondents' merits brief. It has also failed to follow its own Court Rules. In effect, the Supreme Court has acted without boundaries of any kind. In so doing, it is not acting as a court. This article proposes that there should be boundaries that the Court is required to meet, and that those boundaries should be imposed by Congress, under the Exceptions Clause of Article III. The purpose would be to make judicial conduct consistent with the structure that the Constitution sets forth for the role of the judiciary. To the extent that no boundaries exist, the Justices become simply politicians in robes.

]]> Margaret L. Moses Constitutional Law Judges Jurisdiction ARBITRATION LAW: WHO'S IN CHARGE? http://works.bepress.com/margaret_moses/4 http://works.bepress.com/margaret_moses/4 Mon, 23 Mar 2009 15:45:42 PDT Arbitration Law: Who's in Charge

Abstract

In interpreting the Federal Arbitration Act (‘FAA”), the Supreme Court has not carried out the will of Congress, but instead, has created over the last twenty-five years a new law based upon its own policy preferences. The Court’s interpretation in a recent case, Hall Street v. Mattel, in conjunction with its earlier decision in Mitsubishi v. Soler, demonstrates how it has undervalued or ignored both the text of the statute and its legislative history. In disregard of Congress’s statutory commands, the Court has created a law which undercuts the protections Congress has adopted in the areas of civil rights, securities, consumer protection, antitrust and employment.

In Hall v. Mattell, the Court resolved a split in the circuit courts by determining that the FAA did not permit parties to determine by agreement that an award by an arbitrator could be reviewed on the merits by a court. Ignoring legislative history, which supports the enforcement of the parties’ agreement according to its terms, the Court misapplied the canon ejusdem generis to find that the silence of the statute amounted to a prohibition. The court further determined that “manifest disregard of the law,” a judicially created ground for reviewing an arbitrator error of law, did not constitute a separate ground for review, and that the narrow grounds set forth in the statute, which do not permit review for errors of fact or law, were exclusive.

In Mitsubishi, in 1985, the Court relied on the silence of the FAA to find that antitrust claims were arbitrable under the FAA. This is so despite the fact that it is clear from the text of the statute, its legislative history and at least 300 years of prior arbitration practice that the FAA was limited to the enforcement of contract claims arising out of business relationships. Thus, Mitsubishi created a paradigm shift in arbitration law. For the first time, the Court delegated to citizen-arbitrators the power to determine rights under statutes passed by Congress. In so doing, the Court has weakened rights under statutes adopted by Congress to protect investors, employees, consumers, investors and small businesses. Arbitrations take away the right to a jury trial, limit discovery, may eliminate a class action right, and permit no judicial review on the merits. Private-citizen arbitrators have an obligation to the parties before them, but unlike a judge, have no obligation to the public interest.

Thus, with respect to the arbitration of claims under mandatory law, many have called for heightened scrutiny of arbitrator awards. The Supreme Court, on the other hand, has shown in Hall v. Mattel that it wants no review whatsoever of an award based on a regulatory statute that may rest upon an erroneous conclusion of law. Congress needs to take back control of arbitration law and policy, consider overturning Hall v. Mattel through corrective legislation, and consider a complete overhaul of arbitration law to provide either for no arbitration of claims under mandatory law, or, at the least, for heightened scrutiny of arbitral awards based on such claims.

]]> Margaret L. Moses Legislation ARBITRATION LAW: WHO'S IN CHARGE? http://works.bepress.com/margaret_moses/3 http://works.bepress.com/margaret_moses/3 Fri, 13 Mar 2009 11:44:05 PDT Abstract

In interpreting the Federal Arbitration Act (‘FAA”), the Supreme Court has not carried out the will of Congress, but instead, has created over the last twenty-five years a new law based upon its own policy preferences. The Court’s interpretation in a recent case, Hall Street v. Mattel, in conjunction with its earlier decision in Mitsubishi v. Soler, demonstrates how it has undervalued or ignored both the text of the statute and its legislative history. In disregard of Congress’s statutory commands, the Court has created a law which undercuts the protections Congress has adopted in the areas of civil rights, securities, consumer protection, antitrust and employment.

In Hall v. Mattell, the Court resolved a split in the circuit courts by determining that the FAA did not permit parties to determine by agreement that an award by an arbitrator could be reviewed on the merits by a court. Ignoring legislative history, which supports the enforcement of the parties’ agreement according to its terms, the Court misapplied the canon ejusdem generis to find that the silence of the statute amounted to a prohibition. The court further determined that “manifest disregard of the law,” a judicially created ground for reviewing an arbitrator error of law, did not constitute a separate ground for review, and that the narrow grounds set forth in the statute, which do not permit review for errors of fact or law, were exclusive.

In Mitsubishi, in 1985, the Court relied on the silence of the FAA to find that antitrust claims were arbitrable under the FAA. This is so despite the fact that it is clear from the text of the statute, its legislative history and at least 300 years of prior arbitration practice that the FAA was enacted to enforce contract claims arising out of business relationships. Thus, Mitusbishi created a paradigm shift in arbitration law. For the first time, the Court delegated to citizen-arbitrators the power to determine rights under statutes passed by Congress. In so doing, the Court has weakened rights under statutes adopted by Congress to protect investors, employees, consumers, investors and small businesses. Arbitrations take away the right to a jury trial, limit discovery, may eliminate a class action right, and permit no judicial review on the merits. Private-citizen arbitrators have an obligation to the parties before them, but unlike a judge, have no obligation to the public interest.

Thus, with respect to the arbitration of claims under mandatory law, many have called for heightened scrutiny of arbitrator awards. The Supreme Court, on the other hand, has shown in Hall v. Mattel that it wants no review whatsoever of an award based on a regulatory statute that may rest upon an erroneous conclusion of law. Congress needs to take back control of arbitration law and policy, consider overturning Hall v. Mattel through corrective legislation, and consider a complete overhaul of arbitration law to provide either for no arbitration of claims under mandatory law, or, at the least, for heightened scrutiny of arbitral awards based on such claims.

]]> Margaret L. Moses Dispute Resolution Legislation Courts Employment Practice Civil Rights ARBITRATION LAW: WHO'S IN CHARGE? http://works.bepress.com/margaret_moses/2 http://works.bepress.com/margaret_moses/2 Fri, 27 Feb 2009 12:37:12 PST In interpreting the Federal Arbitration Act (‘FAA”), the Supreme Court has not carried out the will of Congress, but instead, has created over the last twenty-five years a new law based upon its own policy preferences. The Court’s interpretation in a recent case, Hall Street v. Mattel, in conjunction with its earlier decision in Mitsubishi v. Soler, demonstrates how it has undervalued or ignored both the text of the statute and its legislative history. In disregard of Congress’s statutory commands, the Court has created a law which undercuts the protections Congress has adopted in the areas of civil rights, securities, consumer protection, antitrust and employment.

In Hall v. Mattell, the Court resolved a split in the circuit courts by determining that the FAA did not permit parties to determine by agreement that an award by an arbitrator could be reviewed on the merits by a court. Ignoring legislative history, which supports the enforcement of the parties’ agreement according to its terms, the Court misapplied the canon ejusdem generis to find that the silence of the statute amounted to a prohibition. The court further determined that “manifest disregard of the law,” a judicially created ground for reviewing an arbitrator error of law, did not constitute a separate ground for review, and that the narrow grounds set forth in the statute, which do not permit review for errors of fact or law, were exclusive.

In Mitsubishi, in 1985, the Court relied on the silence of the FAA to find that antitrust claims were arbitrable under the FAA. This is so despite the fact that it is clear from the text of the statute, its legislative history and at least 300 years of prior arbitration practice that the FAA was enacted to enforce contract claims arising out of business relationships. Thus, Mitusbishi created a paradigm shift in arbitration law. For the first time, the Court delegated to citizen-arbitrators the power to determine rights under statutes passed by Congress. In so doing, the Court has weakened rights under statutes adopted by Congress to protect investors, employees, consumers, investors and small businesses. Arbitrations take away the right to a jury trial, limit discovery, may eliminate a class action right, and permit no judicial review on the merits. Private-citizen arbitrators have an obligation to the parties before them, but unlike a judge, have no obligation to the public interest.

Thus, with respect to the arbitration of claims under mandatory law, many have called for heightened scrutiny of arbitrator awards. The Supreme Court, on the other hand, has shown in Hall v. Mattel that it wants no review whatsoever of an award based on a regulatory statute that may rest upon an erroneous conclusion of law. Congress needs to take back control of arbitration law and policy, consider overturning Hall v. Mattel through corrective legislation, and consider a complete overhaul of arbitration law to provide either for no arbitration of claims under mandatory law, or, at the least, for heightened scrutiny of arbitral awards based on such claims.

]]> Margaret L. Moses Public Law and Legal Theory Arbiitration Law: Who's in Charge http://works.bepress.com/margaret_moses/1 http://works.bepress.com/margaret_moses/1 Thu, 26 Feb 2009 13:45:20 PST In interpreting the Federal Arbitration Act (‘FAA”), the Supreme Court has not carried out the will of Congress, but instead, has created over the last twenty-five years a new law based upon its own policy preferences. The Court’s interpretation in a recent case, Hall Street v. Mattel, in conjunction with its earlier decision in Mitsubishi v. Soler, demonstrates how it has undervalued or ignored both the text of the statute and its legislative history. In disregard of Congress’s statutory commands, the Court has created a law which undercuts the protections Congress has adopted in the areas of civil rights, securities, consumer protection, antitrust and employment.

In Hall v. Mattell, the Court resolved a split in the circuit courts by determining that the FAA did not permit parties to determine by agreement that an award by an arbitrator could be reviewed on the merits by a court. Ignoring legislative history, which supports the enforcement of the parties’ agreement according to its terms, the Court misapplied the canon ejusdem generis to find that the silence of the statute amounted to a prohibition. The court further determined that “manifest disregard of the law,” a judicially created ground for reviewing an arbitrator error of law, did not constitute a separate ground for review, and that the narrow grounds set forth in the statute, which do not permit review for errors of fact or law, were exclusive.

In Mitsubishi, in 1985, the Court relied on the silence of the FAA to find that antitrust claims were arbitrable under the FAA. This is so despite the fact that it is clear from the text of the statute, its legislative history and at least 300 years of prior arbitration practice that the FAA was limited to the enforcement of contract claims arising out of business relationships. Thus, Mitusbishi created a paradigm shift in arbitration law. For the first time, the Court delegated to citizen-arbitrators the power to determine rights under statutes passed by Congress. In so doing, the Court has weakened rights under statutes adopted by Congress to protect investors, employees, consumers, investors and small businesses. Arbitrations take away the right to a jury trial, limit discovery, may eliminate a class action right, and permit no judicial review on the merits. Private-citizen arbitrators have an obligation to the parties before them, but unlike a judge, have no obligation to the public interest.

Thus, in the arbitration of claims under mandatory law, many have called for heightened scrutiny of arbitrator awards. The Supreme Court, on the other hand, has shown in Hall v. Mattel that it wants no review whatsoever of an award based on a regulatory statute that may rest upon an erroneous conclusion of law. Congress needs to take back control of arbitration law and policy, consider overturning Hall v. Mattel through corrective legislation, and consider a complete overhaul of arbitration law to provide either for no arbitration of claims under mandatory law, or, at the least, for heightened scrutiny of arbitral awards based on such claims.

]]> Margaret L. Moses Consumer Protection Law Dispute Resolution Law and Society Legislation Public Law and Legal Theory