1 See Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341 F.3d 987, 989–90 (9th Cir. 2003) (en banc).
2 See id. at 990 & nn.1–2, 991. In Kyocera, the parties conceded their intent to have an arbitrator resolve contractual disputes. Id. at 990 n.2. Although the parties’ agreement did not state specifically that the decision of the arbitrator was final and binding, this intent is coextensive with the decision to arbitrate. See id. Indeed, a comprehensive treatise on commercial arbitration states that “[a]rbitration . . . involves a final determination of disputes. . . . [It] is based on a voluntary agreement of the parties, made before the arbitration . . . is instituted, to submit a dispute for the binding decision of the arbitrator.” 1 Larry E. Edmondson, Domke on Commercial Arbitration �� 1:1, 1:3 (3d ed. 2003) (citation omitted). When parties opt for arbitration, they voluntarily forgo resolving disputes through mediation or conciliation, the results of which are not binding. See id. � 1:3.
3 See 9 U.S.C. �� 9–10 (2000); see also Kyocera, 341 F.3d at 997–98 (setting forth section 10 vacatur grounds and stating, “[T]hese grounds afford an extremely limited review authority, a limitation that is designed to preserve due process but not to permit unnecessary public intrusion into private arbitration procedures.”); Gupta v. Cisco Sys., Inc., 274 F.3d 1, 3 (1st Cir. 2001) (concluding that judicial review of arbitral award is among narrowest under law). For a brief summary of section 10 of the FAA, see infra notes 69–71 and accompanying text.
4 See Kyocera, 341 F.3d at 991; see also, e.g., Katz v. Feinberg, 167 F. Supp. 2d 556, 563 (S.D.N.Y. 2001) (reasoning that vacatur review under section 10 is extremely limited because extensive review would subvert the “twin goals of arbitration, namely, settling disputes efficiently and avoiding long and expensive litigation.”) (quoting Dirussa v. Dean Witter Reynolds, Inc., 121 F.3d 818, 827 (2d Cir. 1997)).
5 See Kyocera, 341 F.3d at 990–91, 994.
6 Id. at 990–91.
7 See id. at 991–94.
8 See id. at 998–1000. The circuit split on the propriety of heightened-review clauses has attracted a considerable amount of scholarly debate. See, e.g., Sarah Rudolph Cole, Managerial Litigants? The Overlooked Problem of Party Autonomy in Dispute Resolution, 51 Hastings L.J. 1199, 1244, 1250 (2000) (describing circuit split and proposing resolution); Lee Goldman, Contractually Expanded Review of Arbitration Awards, 8 Harv. Negot. L. Rev. 171, 174–79 (2003) (reviewing pro- and anti-heightened-review precedents); Eric van Ginkel, Reframing the Dilemma of Contractually Expanded Judicial Review: Arbitral Appeal vs. Vacatur, 3 Pepp. Disp. Resol. L.J. 157, 160, 161, 178–79 n.113 (2003) (citing previous studies and reasoning that circuit split involves proper conception of arbitral finality).
9 See, e.g., Goldman, supra note 8, at 174, 199.
10 Id. at 171.
11 See, e.g., First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 942, 943 (1995). In First Options of Chicago, Inc. v. Kaplan, the U.S. Supreme Court stated the following:
[A] party who has not agreed to arbitrate will normally have a right to a court’s decision about the merits of its dispute. . . . But, where the party has agreed to arbitrate, he or she, in effect, has relinquished much of that right’s practical value. The party still can ask a court to review the arbitrator’s decision, but the court will only set that decision aside in very unusual circumstances.
Id. at 942 (emphasis added). The Court cited section 10 of the FAA and the “manifest disregard for the law” standard as examples of very unusual circumstances. Id. The grounds for vacating an arbitral award pursuant to section 10 of the FAA are similar to those governing the vacatur of final judgments. See Bonar v. Dean Witter Reynolds, Inc., 835 F.2d 1378, 1383 n.8 (11th Cir. 1988); see also van Ginkel, supra note 8, at 189 (noting that vacatur grounds under section 10 of FAA and Rule 60(b) of Federal Rules of Civil Procedure are similar). Compare 9 U.S.C. � 10 (2000) (stating that award may be vacated for fraud, lack of fair hearing, or arbitrator misconduct), with Fed. R. Civ. P. 60(b) (permitting vacatur for fraud, lack of fair hearing, or in the interest of justice).
12 See Burchell v. Marsh, 58 U.S. (17 How.) 344, 349 (1854); see also Office of Supply, Gov’t of Republic of Korea v. N.Y. Navigation Co., 469 F.2d 377, 379 (2d Cir. 1972) (holding that limited review ensures viability of arbitration as litigation alternative).
13 See Schoch v. Infousa, Inc., 341 F.3d 785, 789 n.3 (8th Cir. 2003) (citing Eljer Mfg., Inc. v. Kowin Dev. Corp., 14 F.3d 1250, 1254 (7th Cir. 1994)); Bowen v. Amoco Pipeline Co., 254 F.3d 925, 935, 936 n.7 (10th Cir. 2001); see also Merit Ins. Co. v. Leatherby Ins. Co., 714 F.2d 673, 683 (7th Cir. 1983) (reasoning that under FAA, courts must not encourage practices that increase cost and undermine finality of arbitration).
14 See 4 Ian R. MacNeil et al., Federal Arbitration Law � 40.1.4 (Supp. 1999).
15 See Goldman, supra note 8, at 172–73.
16 See id.
17 See, e.g., Gateway Techs., Inc. v. MCI Telecomms. Corp., 64 F.3d 993, 996–97 (5th Cir. 1995). For a review of pro-heightened-review precedents, see infra notes 144–164 and accompanying text.
18 See, e.g., Bowen, 254 F.3d at 932, 933, 936. For a review of anti-heightened-review precedents, see infra notes 178–199 and accompanying text.
19 See id. at 935, 936 n.7. For a review of Bowen, see infra notes 178–190 and accompanying text.
20 Compare Kyocera, 341 F.3d at 994 (deciding FAA specifies exclusive grounds for vacating awards), with Bowen, 254 F.3d at 933, 935 (concluding that FAA’s pro-arbitration policy and U.S. Supreme Court precedents prohibit heightened-review clauses).
21 See Kyocera, 341 F.3d at 994, 1000.
22 Compare, e.g., id. (applying textual/constitutional framework), and Bowen, 254 F.3d at 935–37 (utilizing policy approach to support non-enforcement), with Gateway, 64 F.3d at 996–97 (using policy approach to support enforcement).
23 Compare, e.g., Kyocera, 341 F.3d at 1000 (concluding that federal courts may not vacate award pursuant to contractual standard), with Roadway Package Sys., Inc. v. Kayser, 257 F.3d 287, 292–93, 296, 297 (3d Cir. 2001) (explaining that pro-heightened-review precedent allows sophisticated parties to bargain around FAA’s default vacatur standards).
24 See Roadway, 257 F.3d at 296–97.
25 See U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18, 26–27 (1994); Hoeft v. MVL Group, Inc., 343 F.3d 57, 65 (2d Cir. 2003).
26 See Bonner Mall, 513 U.S. at 26–29.
27 Id.
28 See infra notes 40–137 and accompanying text.
29 See infra notes 293–324 and accompanying text.
30 See infra notes 138–211 and accompanying text.
31 See infra notes 212–223 and accompanying text.
32 See infra notes 230–243 and accompanying text.
33 See infra notes 245–270 and accompanying text.
34 For a summary of Part IV’s conclusions, see infra notes 364–379 and accompanying text.
35 See infra notes 281–324 and accompanying text.
36 See infra notes 325–342 and accompanying text.
37 See infra notes 343–363 and accompanying text.
38 See infra notes 348–363 and accompanying text.
39 See infra notes 364–379 and accompanying text.
40 Cf. First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 948 (1995) (holding, in FAA context, that standards of review should be crafted in accordance with institutional advantages).
41 Cole, supra note 8, at 1235.
42 Compare Edmondson, supra note 2, � 1:1 (stating that modern arbitrants seek final results and avoidance of costs and delays of litigation), with. Cole, supra note 8, at 1236 (reasoning that medieval arbitrants sought to achieve final results through informal procedures).
43 Edmondson, supra note 2, �� 1:1, 1:4.
44 See Kaplan, 514 U.S. at 942, 943 (holding that parties may determine which issues to arbitrate and that such determination essentially forecloses judicial decision on the merits of the dispute); see also Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57–58, 64 (1995) (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 479 (1989) and holding that court will enforce an award issued pursuant to arbitral procedures).
45 Edmondson, supra note 2, � 1:1.
46 See Kaplan, 514 U.S. at 942; UHC Mgmt. Co. v. Computer Scis. Corp., 148 F.3d 992, 998 (8th Cir. 1998). But see Action Indus., Inc., v. United States Fid. & Guar. Co., 358 F.3d 337, 340 (5th Cir. 2004) (holding that parties may contract for heightened judicial review).
47 See Kaplan, 514 U.S. at 942, 943; Southland Corp. v. Keating, 465 U.S. 1, 7 (1984) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 22 (1983)).
48 See, e.g., United States Asphalt Ref. Co. v. Trinidad Lake Petroleum Co., 222 F. 1006, 1010–11 (S.D.N.Y. 1915).
49 See, e.g., Mitchell v. Dougherty, 90 F. 639, 642 (3d Cir. 1898); Cole, supra note 8, at 1237.
50 See Mitchell, 90 F. at 642 (stating that courts will not enforce contracts that “oust the jurisdiction of the courts, and substitute for them an extra-legal tribunal of their own creation, with power to finally and conclusively decide [a dispute]”).
51 See Southland Corp., 465 U.S. at 13 (citing legislative history for proposition that ouster doctrine was premised on jurisdictional jealousy); United States Asphalt, 222 F. at 1010–11 (stating that courts would not forsake jurisdiction unless compelled by statute). Compare Ian R. MacNeil, American Arbitration Law 60–61 (1992) (concluding that the ultimate rationale for ouster doctrine is unclear), with Amy J. Schmitz, Ending a Mud Bowl: Defining Arbitration’s Finality Through Functional Analysis, 37 Ga. L. Rev. 123, 138 & n.80 (2002) (arguing that ouster doctrine was pretext for judicial hostility to arbitration, but citing authorities that disagree).
52 See Burchell v. Marsh, 58 U.S. (17 How.) 344, 349, 350 (1854); Karthaus v. Yllas y Ferrer, 26 U.S. (1 Pet.) 222, 226–27, 230 (1828); see also Red Cross Line v. Atl. Fruit Co., 264 U.S. 109, 121 (1924) (citing Burchell and Karthaus for proposition that arbitral awards were enforceable in federal courts).
53 See Red Cross Line, 264 U.S. at 121.
54 See, e.g., Burchell, 58 U.S. at 349; Karthaus, 26 U.S. at 226–27, 230; see also MacNeil, supra note 51, at 19–20 (explaining early American courts’ distinction between enforcing pre-dispute agreements to arbitrate and arbitral awards).
55 See Burchell, 58 U.S. at 349; see also, e.g., White Star Mining Co. v. Hultberg, 77 N.E. 327, 335–36 (Ill. 1906) (citing Burchell and numerous state court decisions for proposition that awards could not be vacated for error of fact or law).
56 Burchell, 58 U.S. at 349.
57 Id. at 344–45.
58 Id. at 349.
59 See id.; see also Underhill v. Van Cortlandt, 2 Johns Ch. 339, 361 (N.Y. Ch. 1817), quoted in MacNeil, supra note 51, at 19. Before Burchell was decided, in 1817, in Underhill v. Van Cortlandt, the New York Court of Chancery, the highest court of equity in New York before 1848, reasoned that arbitration awards were final judgments. See MacNeil, supra note 51, at 19. The Underhill Court stated the following:
If every award must be made conformable to what would have been the judgment of [the] . . . Court in the case, it would render arbitrations useless and vexatious, and a source of great litigation; for it very rarely happens that both parties are satisfied. The decision by arbitration is the decision of a tribunal of the parties’ own choice and election. It is a popular, cheap, convenient, and domestic mode of trial, which the courts have always regarded with liberal indulgence; they have never exacted from these unlettered tribunals, this rusticum forum, the observance of technical rule and formality. They have only looked to see if the proceedings were honestly and fairly conducted, and if that appeared to be the case, they have uniformly and universally refused to interfere with the judgment of the arbitrators.
2 Johns Ch. at 361, quoted in MacNeil, supra note 51, at 19.
60 See Burchell, 58 U.S. at 350.
61 See id.
62 See, e.g., White Star, 77 N.E. at 336. In 1906, in White Star, the Illinois Supreme Court narrowly interpreted an arbitration agreement that assumed issuance of a legally correct award. See id. at 337. The court only reviewed the award for procedural irregularities because a more thorough legal error review would defeat the purpose of the arbitration agreement—litigation avoidance. See id. The White Star court also noted that the parties’ agreement did not expressly provide for judicial review of the arbitrator’s legal conclusions; however, the court stated that contractually heightened judicial review would be equally impermissible because it would “render this and all similar arbitration absolutely futile.” Id. at 337 (emphasis added).
63 See id.; see also MacNeil, supra note 51, at 21–22 (finding that outside of ouster doctrine, federal arbitration law accorded with state law).
64 See, e.g., Burchell, 58 U.S. at 349.
65 See id. at 349; 9 U.S.C. �� 9–10 (2000); see also Cole, supra note 8, at 1255 (arguing that enactment of section 10 was superfluous because the common law of arbitration already required limited vacatur review). But see Schmitz, supra note 51, at 149 (arguing that FAA’s drafters rejected searching judicial review of arbitral awards as inimical to purposes of arbitration).
66 See 9 U.S.C. � 9; see also Merit Ins. Co. v. Leatherby Ins. Co. 714 F.2d 673, 681 (7th Cir. 1983) (reasoning that FAA authorizes federal courts to make arbitration effective through award enforcement).
67 9 U.S.C. � 9.
68 Id. �� 9, 13.
69 Id. � 9 (emphasis added).
70 Id. � 10 (emphasis added); see also Cole, supra note 8, at 1258 (implying that permissive language in section 10 renders it susceptible to a pro- and anti-heightened-review interpretation); Goldman, supra note 8, at 180–81 (same).
71 FAA section 10 provides, in pertinent part, that
the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration: (1) Where the award was procured by corruption, fraud, or undue means. (2) Where there was evident partiality or corruption in the arbitrators, or either of them. (3) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced. (4) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
9 U.S.C. � 10.
72 See, e.g., Kaplan, 514 U.S. at 942 (citing Wilko v. Swan, 346 U.S. 427, 436–37 (1953), for proposition that court may vacate award that is in “manifest disregard for the law”); Prudential-Bache Secs., Inc. v. Tanner, 72 F.3d 234, 241 (1st Cir. 1995) (holding that award may be vacated if arbitrator’s decision would violate explicit public policy that is well-defined, dominant, and capable of being ascertained from the laws and legal precedents); Lifecare Int’l, Inc. v. CD Med., Inc., 68 F.3d 429, 435 (11th Cir. 1995) (holding that award can be vacated if “there is no ground whatsoever for” arbitrator’s decision and thus, award is arbitrary and capricious). For a thorough review of non-statutory vacatur grounds, see generally Stephen L. Hayford, A New Paradigm for Commercial Arbitration: Rethinking the Relationship Between Reasoned Awards and Judicial Standards for Vacatur, 66 Geo. Wash. L. Rev. 443, 461–92 (1998).
73 See 9 U.S.C. � 10(a)(4). Indeed, in 2003, in Kyocera Corporation v. Prudential-Bache Trade Services, Inc., the Ninth Circuit Court of Appeals stated that the manifest disregard for the law standard was derived from section 10(a)(4). 341 F.3d 987, 997 (9th Cir. 2003); see also Stephan J. Ware, Alternative Dispute Resolution � 2.45 (2001) (reasoning that non-statutory vacatur grounds are outgrowth of courts’ authority under section 10(a)(4) of FAA to overturn award in which arbitrator has exceeded his or her powers).
74 See, e.g., Advest, Inc. v. McCarthy, 914 F.2d 6, 10 (1st Cir. 1990).
75 See, e.g., id.; see also Kyocera, 341 F.3d at 998 (reasoning that manifest disregard for the law and completely irrational standards are designed to prevent substantive judicial review, and stating that “[t]hese grounds afford an extremely limited review authority . . . that is designed to preserve due process but not to permit unnecessary intrusion into private arbitration procedures”); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker, 808 F.2d 930, 933–34 (2d Cir. 1986) (holding that under manifest disregard standard, vacatur requires that arbitrator’s legal error be so obvious that average arbitrator would instantly notice it).
76 See Volt, 489 U.S. at 474–75 (reasoning that under section 4 of FAA, a court only has authority to compel arbitration “in the manner provided for in [the parties’ agreement]”); see also Mastrobuono, 514 U.S. at 57–58 (quoting Volt and holding that FAA only ensures enforcement of awards rendered in accordance with parties’ agreement); Kyocera, 341 F.3d at 1000 (reasoning that under Volt, courts must compel arbitration pursuant to contract, but that judicial review of arbitral award is limited to statutory vacatur grounds); Bowen v. Amoco Pipeline Co., 254 F.3d 925, 935 (10th Cir. 2001) (distinguishing section 4 of the FAA from section 9 on ground that section 4 requires court to issue order in accordance with parties’ agreement and section 9 mandates statutory analysis).
77 See 9 U.S.C. �� 2–5; Volt, 489 U.S. at 474–75, 476; Moses H. Cone Mem’l Hosp., 460 U.S. at 24.
78 See 9 U.S.C. �� 9–10; Bowen, 254 F.3d at 935.
79 See Kaplan, 514 U.S. at 942, 943; Mastrobuono, 514 U.S. at 57 (quoting Volt, 489 U.S. at 479).
80 Kaplan, 514 U.S. at 942, 943; Mastrobuono, 514 U.S. at 57–58.
81 See Kaplan, 514 U.S. at 942–43; Mastrobuono, 514 U.S. at 57–58, 64.
82 See, e.g., Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 219–20 & n.6 (1985) (quoting H.R. Rep. No. 68-96, at 1–2 (1924)); Southland Corp., 465 U.S. at 13 (same).
83 See Cole, supra note 8, at 1255.
84 See MacNeil, supra note 51, at 107–08; MacNeil et al., supra note 14, � 8.1.
85 MacNeil, supra note 51, at 108.
86 H.R. Rep. No. 68-96, at 1–2, quoted in Byrd, 470 U.S. at 219–20 & n.6; Bills to Make Valid and Enforceable Written Provisions or Agreements of Disputes Arising out of Contracts, Maritime Transactions, or Commerce Among the States or Territories or with Foreign Nations: Joint Hearings on S. 1005 and H.R. 646 Before the Subcomms. on the Judiciary, 68th Cong. 21 (1924), quoted in MacNeil, supra note 51, at 92.
87 MacNeil et al., supra note 14, �� 8.1–.2; Cole, supra note 8, at 1255.
88 Cole, supra note 8, at 1255.
89 See MacNeil et al., supra note 14, � 8.1; see also Schmitz, supra note 51, at 149–50 (reasoning that FAA’s drafters debated and rejected provisions mandating legal error review of arbitral awards).
90 See MacNeil et al., supra note 14, � 8.1; Schmitz, supra note 51, at 150.
91 MacNeil et al., supra note 14, � 8.1.
92 See id. � 9.3 n.16.
93 See id. �� 8.1, 9.3 n.16. Indeed, as Professor MacNeil notes, the FAA’s vacatur grounds are nearly identical to those employed under the New York Arbitration Law of 1920. Id. � 9.3 n.16.
94 See MacNeil, supra note 51, at 31–33.
95 Id. at 32, 37.
96 See id. at 34; Schmitz, supra note 51, at 149–50. But see Cole, supra note 8, at 1255 (reasoning that FAA’s drafters were unconcerned about judicial review and merely adopted common-law standard).
97 See MacNeil, supra note 51, at 33; MacNeil et al., supra note 14, � 8.1; Schmitz, supra note 51, at 150.
98 See, e.g., Volt, 489 U.S. at 474–76.
99 See id. at 475–76, 479.
100 See, e.g., Kaplan, 514 U.S. at 947–48.
101 See Schoch v. Infousa, Inc., 341 F.3d 785 789–90 (8th Cir. 2003), cert. denied, 124 S. Ct. 1414 (2004).
102 See 489 U.S. at 476, 479.
103 Id. at 471.
104 See id. at 471–72.
105 See 9 U.S.C. �� 3–4 (2000); Volt, 489 U.S. at 474.
106 Volt, 489 U.S. at 476.
107 See id. at 475.
108 Id. at 475 n.5, 476.
109 See id. at 478–79.
110 See id. at 479.
111 Volt, 489 U.S. at 479.
112 See Mastrobuono, 514 U.S. at 57.
113 Id. at 53.
114 See id.
115 See id. at 63–64.
116 See id. at 57–58, 64.
117 See Mastrobuono, 514 U.S. at 53, 57, 64.
118 Id. at 57.
119 Kaplan, 514 U.S. at 941.
120 Id. at 942, 943.
121 Id. at 942.
122 Id.
123 Id. at 943.
124 Kaplan, 514 U.S. at 943; see also Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452–53 (2004) (plurality opinion) (reasoning that arbitrators are well-situated to decide matters of contractual interpretation because the parties expressly selected them for this task).
125 Kaplan, 514 U.S. at 947–48.
126 Id. at 941, 948.
127 See id. at 948.
128 See id.
129 See id.
130 See Kaplan, 514 U.S. at 948 (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984)). In 1984, in Chevron, the U.S. Supreme Court held that when Congress empowers an administrative agency to oversee a legislative program, it concomitantly grants that agency the authority to formulate policies and rules to fill legislative gaps. 467 U.S. at 843. If a court finds that Congress so ceded this authority and the agency’s decision making was not arbitrary or capricious, it should uphold the decision of the agency. See id. at 844–45; see also Cole, supra note 8, at 1260 (reasoning that arbitrary and capricious review of administrative agencies’ decisions accords judicial respect to agencies’ decision-making authority).
131 See Chevron, 467 U.S. at 845 (quoting United States v. Shimer, 367 U.S. 374, 382, 383 (1961)).
132 See Kaplan, 514 U.S. at 948; see also Bowen, 254 F.3d at 935 n.5 (citing U.S. Supreme Court labor arbitration precedents for proposition that courts defer to arbitral awards because parties agree to accept arbitrator’s decision).
133 See 9 U.S.C. �� 2–5, 9–10 (2000). Compare, e.g., Kaplan, 514 U.S. at 942 (concluding that limited standards of judicial review apply to review of awards), with Volt, 468 U.S. at 474–75, 476, 479 (holding that courts must enforce parties’ arbitral procedures under FAA).
134 See Kaplan, 514 U.S. at 948.
135 See Mastrobuono, 514 U.S. at 57–58; Volt, 468 U.S. at 479.
136 Compare, e.g., Kyocera, 341 F.3d at 987, 1000 (drawing distinction between judicial and arbitral procedures similar to distinction in Kaplan), with Roadway Package Sys., Inc. v. Kayser, 257 F.3d 287, 292–93 (3d Cir. 2001) (ignoring any arbitral/judicial distinction and citing Volt and Mastrobuono for proposition that, under FAA, courts must enforce arbitration agreements according to their terms).
137 Compare, e.g., Bowen, 254 F.3d at 935 (reasoning that standard of review should be crafted to maintain arbitration’s effectiveness), with Gateway Techs., Inc. v. MCI Telecomms. Corp., 64 F.3d 993, 996–97 (5th Cir. 1995) (reasoning that parties’ contract governs judicial review of award regardless of effect on institutional advantages of arbitration).
138 See Westinghouse Elec. Corp. v. N.Y. City Transit Auth., 14 F.3d 818, 821 (2d Cir. 1994); see also Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341 F.3d 987, 998–1000 (9th Cir. 2003) (describing circuit split). In 1994, in Westinghouse, the Second Circuit Court of Appeals upheld the enforcement of a decreased standard of review clause. See 14 F.3d at 821–22. Nevertheless, several prominent commentators have cited the decision for the proposition that heightened-review clauses are enforceable under the FAA. See, e.g., Edmondson, supra note 2, � 39:15 n.1. The Second Circuit appears to have overruled Westinghouse. See Hoeft v. MVL Group, Inc., 343 F.3d 57, 66 (2d Cir. 2003).
139 Roadway Package Sys., Inc. v. Kayser, 257 F.3d 287, 292–93 (3d Cir. 2001); Gateway Techs., Inc. v. MCI Telecomms. Corp., 64 F.3d 993, 996–97 (5th Cir. 1995); Syncor Int’l Corp. v. McLeland, No. 96-2261, 1997 WL 452245, at *6 (4th Cir. Aug. 11, 1997) (unpublished per curiam opinion).
140 See Bowen v. Amoco Pipeline Co., 254 F.3d 925, 933, 935 (10th Cir. 2001).
141 See Schoch v. Infousa, Inc. 341 F.3d 785, 789 & n.3 (8th Cir. 2003) (quoting UHC Mgmt. Co. v. Computer Scis. Corp., 148 F.3d 992, 997 (8th Cir. 1998)), cert. denied, 124 S. Ct. 1414 (2004).
142 See Kyocera, 341 F.3d at 994, 998. In 1991, in Chicago Typographical Union v. Chicago Sun-Times, the Seventh Circuit Court of Appeals reached a similar conclusion, albeit in the labor arbitration context. See 935 F.2d 1501, 1504–05 (7th Cir. 1991). In Chicago Typographical, the appellant argued that an arbitral award should be vacated because the arbitrator misinterpreted the contract. Id. at 1503. The court concluded that an arbitration agreement could not grant federal courts the authority to review an arbitrator’s decision substantively. See id. at 1504. Although the court did not consider the propriety of heightened-review clauses, several courts and commentators have cited Chicago Typographical for the proposition that heightened-review clauses are invalid in the Seventh Circuit, because the court stated, “parties . . . can contract for an appellate arbitration panel to review the arbitrator’s award. . . . but they cannot contract for judicial review of that award . . . .” Id. at 1505 (emphasis added); see, e.g., Kyocera, 341 F.3d at 999; Cole, supra note 8, at 1244–45.
143 See Hoeft, 343 F.3d at 64–66 (citing U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18, 26, 29 (1994)).
144 64 F.3d 993, 997 (5th Cir. 1995).
145 Id. at 996–97.
146 See id. 996, 997 & n.3.
147 See id. at 996.
148 See id. at 996–97.
149 See 254 F.3d 588, 592–93 (5th Cir. 2001) (citing Gateway, 64 F.3d at 997); see also Prescott v. Northlake Christian Sch., 369 F.3d 491, 496 (5th Cir. 2004) (reaffirming that Gateway stands for the proposition that parties may alter FAA’s default standard of vacatur review because arbitration is “a creature of contract”); Harris v. Parker College of Chiropratic, 286 F.3d 790, 793 (5th Cir. 2002) (same).
150 See Cook, 254 F.3d at 590, 594.
151 See id. at 592–593.
152 See 358 F.3d 337, 341 n.10 (5th Cir. 2004).
153 Id. at 340 n.9.
154 Id. at 343.
155 See id. at 341 & n.10.
156 See id. at 341–42, 343.
157 See 257 F.3d at 292–93.
158 See id. at 288, 291 n.2.
159 Id. at 288, 293.
160 See id. at 292. The Third Circuit reasoned that under the FAA, courts should enforce heightened- or decreased-review clauses. See id. at 296.
161 See id. at 294, 296–97 & n.5. The Third Circuit could cite no other federal statute that set forth default standards of review. Id. at 294.
162 See Roadway, 257 F.3d at 297.
163 See id. The Fifth Circuit used the term “sophisticated parties” to refer to parties who hired lawyers to draft their agreements. Id.
164 See id. at 296, 297.
165 See 148 F.3d at 997.
166 Id. at 998.
167 See id. at 995–98. The Eighth Circuit cited Volt for the proposition that the FAA granted parties the right to craft arbitral procedures that the federal courts would enforce. Id. at 997. The court was unwilling to conclude that this right was coextensive with the authority to alter judicial review contractually, especially “when Congress has ordained a specific, self-limiting procedure for how such a review is to occur.” Id.
168 Id. at 997–98.
169 See id. at 997.
170 See UHC, 148 F.3d at 998.
171 See id. at 997–98 (quoting LaPine Tech. Corp. v. Kyocera Corp., 130 F.3d 884, 891 (9th Cir. 1997) (Mayer, J., dissenting)).
172 See 341 F.3d at 789 & n.3.
173 Id. at 787–88.
174 See id. at 789 n.3.
175 Id.
176 See id. (citing Eljer Mfg., Inc. v. Kowin Dev. Corp., 14 F.3d 1250, 1254 (7th Cir. 1994)).
177 See Schoch, 341 F.3d at 789 n.3 (citing Eljer, 14 F.3d at 1254).
178 See 254 F.3d at 936.
179 Id. at 930.
180 See id. at 933–34.
181 See id. at 934. The Bowen court stated, “the contractual nature of arbitration is, therefore, well established. . . . And our decision today must further the FAA’s primary policy ensuring judicial enforcement of private agreements to arbitrate.” Id.
182 See id. at 935.
183 See Bowen, 254 F.3d at 935.
184 See id. at 935–36.
185 See id. at 935.
186 See id. In a footnote, the court also reasoned that heightened-review clauses would tend to increase the costs of arbitration itself. Id. at 936 n.7. Because expanded review would require arbitrators to produce written opinions, the efficiency of arbitration would be sacrificed. Id. This would transform arbitration from a litigation alternative to “yet another step on the ladder of litigation.” Id.
187 See id. at 935.
188 See Bowen, 254 F.3d at 935 (citing 9 U.S.C. �� 4, 10–11 (2000)).
189 See id. at 935–36.
190 See id. at 936–37 (citing UHC, 148 F.3d at 997–98; Chi. Typographical, 935 F.2d at 1504–05).
191 See 341 F.3d at 994, 998, 1000.
192 See id. at 990–91.
193 See id. at 994.
194 See id. at 994, 1000.
195 See id. at 998.
196 See Kyocera, 341 F.3d at 998.
197 See id.
198 Id. at 1000.
199 Id.
200 See 343 F.3d at 65.
201 Id. at 60.
202 See id. at 63, 64.
203 See id.
204 See id. at 65 (citing Bowen, 254 F.3d at 936 n.8).
205 Hoeft, 343 F.3d at 65.
206 See id. (citing Bonner Mall, 513 U.S. at 29).
207 See id. at 64–65.
208 See id. at 65–66.
209 See id.
210 See Hoeft, 343 F.3d at 65–66.
211 See id. at 64, 65, 66. The Second Circuit also distinguished Katz v. Feinberg, in which it allowed the parties to preclude arbitral review of an arbitration award. Id. at 65–66 (citing Katz v. Feinberg, 290 F.3d 95, 98 (2d Cir. 2002)). The court held that there was no contradiction between precluding arbitral review of an award and disallowing equivalent preclusion of judicial review. Id. at 66. Although arbitration is a creature of contract, fully malleable by the parties, judicial authority to review an arbitration award derives from statutory, not private, authority. Id.
212 See Cole, supra note 8, at 1203, 1205–06; van Ginkel, supra note 8, at 188–92.
213 Compare Cole, supra note 8, at 1259–60, 1263 (arguing that managerial litigation model prevents judiciary from making arbitrary and capricious decisions), with van Ginkel, supra note 8, at 197–98 (arguing that proper distinction between arbitral appeal and vacatur allows courts to enforce heightened-review clauses under U.S. Supreme Court’s FAA jurisprudence).
214 See Cole, supra note 8, at 1259, 1260.
215 See id. at 1263. An example of a standard of review that would compromise institutional integrity is the “flip[ping] of a coin or studying the entrails of a dead fowl . . . .” Id.
216 Id.
217 See id. at 1216–17.
217 See id. at 1216.
218 See van Ginkel, supra note 8, at 188, 192.
219 See id.
220 See id. at 212–13.
221 Id. at 192.
222 Id. at 194, 197–98.
223 See Cole, supra note 8, at 1259; van Ginkel, supra note 8, at 198.
224 See Bonner Mall, 513 U.S. at 26–29; see also Cole, supra note 8, at 1216 (reasoning that vacatur by contract implicates courts’ concern with maintaining finality of litigation and value of precedent).
225 See Bonner Mall, 513 U.S. at 26–29.
226 See Hoeft, 343 F.3d at 65. But see Cole, supra note 8, at 1216 n.88 (suggesting that Bonner Mall’s rationale with respect to mutual vacatur requests was dicta).
227 See Hoeft, 343 F.3d at 65.
228 Cf. Schmitz, supra note 51, at 197–98 (arguing that variant interpretations of U.S. Supreme Court precedent have perpetuated heightened-review circuit split). In Hoeft, the Second Circuit implied, in dicta, that its Bonner Mall analysis might not be applicable to heightened-review clauses, which posed different concerns than a clause that eliminates any judicial review of an award. 343 F.3d at 64. The Second Circuit did not elaborate on this suggestion; however, these reservations seem akin to equitable concerns raised by pro-heightened-review courts, which conclude that contractual fairness should compel courts to enforce arbitral agreements that contemplate heightened-review. Compare, e.g., id. (implying that agreement requiring heightened-review might not offend judicial integrity because it would not force court to act as rubber stamp), with Hughes, 254 F.3d at 594 (reasoning that heightened-review clause is an equitable procedure because it is fully available to both parties). Notably, just five days before Hoeft was decided, the Ninth Circuit Court of Appeals in Kyocera, implied, in dicta, that decreased-review clauses were less threatening to Congress’s plenary procedural authority than heightened-review clauses. See Kyocera, 341 F.3d at 998–99 n.16.
The Second and Ninth Circuits’ variant reasoning suggests a divergence on the issue of arbitral finality. See Hoeft, 343 F.3d at 64, 65; Kyocera, 341 F.3d at 998. The Kyocera court apparently views the FAA as a structure that preserves arbitral finality to ensure arbitration’s viability, as a litigation alternative, for the entire legal community. See 341 F.3d at 998. Conversely, the Second Circuit suggests that the FAA only protects finality to the extent that it is desired by particular arbitrants. See Hoeft, 343 F.3d at 64, 65. For a fuller discussion of this distinction and its implication on the applicability of Bonner Mall’s extraordinary circumstances test to the heightened-review circuit split, see infra notes 281–292 and accompanying text.
229 See 513 U.S. 18, 26–28, 29 (1994).
230 Id. at 20.
231 Id. at 20 & n.1.
232 See id. at 26.
233 See id. 26–27, 29. The Court stated that vacatur was an “extraordinary remedy” that required an analysis of the parties’ fault in causing mootness and the public interest in maintaining judicial integrity. See id. at 26–27.
234 See Bonner Mall, 513 U.S. at 22–23, 26 (citing United States v. Musingwear, Inc., 340 U.S. 36, 40 (1950)).
235 See id. at 26–27. The Court also analyzed the claim that contractual vacatur would advance the public’s interest in fostering judicial economy through settlement. Id. at 27–28. The Court implied that this policy justification was outside the rubric of the extraordinary circumstances test because, absent an empirical test, it was impossible to determine whether a contractual vacatur rule would serve to preclude litigation. See id. Indeed, the Court opined that the ready availability of contractual vacatur relief could deter settlement at the district court level. Id. at 28.
236 Id. at 25–26.
237 See id. at 26.
238 Id.
239 See Bonner Mall, 513 U.S. at 26.
240 See id. at 25, 27.
241 See id. at 29.
242 See id.
243 See LaFarge Conseils et Etudes, S.A. v. Kaiser Cement & Gypsum Corp., 791 F.2d 1334, 1338, 1339 & n.12 (9th Cir. 1986); Merit Ins. Co. v. Leatherby Ins. Co., 714 F.2d 673, 682–83 (7th Cir. 1983). In LaFarge, the appellant moved to vacate a confirmed arbitral award pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure, which allows a final judgment to be vacated in the interests of justice. 791 F.2d at 1338. The appellant argued that the district court’s refusal to consider evidence of arbitral fraud, which was uncovered after the confirmation, entitled it to relief. Id. at 1338, 1339. The Ninth Circuit Court of Appeals reasoned that such relief was only warranted in extraordinary circumstances, which did not include fraud or newly discovered evidence. See id.
244 714 F.2d at 682–83.
245 Id. at 676.
246 Id. at 678.
247 Id. at 677.
248 Id. at 676, 682.
249 See Merit, 714 F.2d at 682–83.
250 See id. at 679.
251 See id.
252 See id.
253 See id.
254 Merit, 714 F.2d at 680–81.
255 Id.
256 See id. at 681.
257 Id.
258 See id.
259 See Merit, 714 F.2d at 681.
260 See id.
261 See id.
262 See id. at 676, 683.
263 See id. at 682.
264 See Merit, 714 F.2d at 682–83.
265 See id. at 683.
266 See id.
267 See id.
268 See id.
269 Merit, 714 F.2d at 683.
270 Compare, e.g., Action Indus., Inc. v. United States Fid. & Guar. Co., 358 F.3d 337, 340–41 & n.10 (5th Cir. 2004) (holding that U.S. Supreme Court precedents require enforcement of heightened-review clauses), with Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341 F.3d 987, 994 (9th Cir. 2003) (concluding that enforcement is unconstitutional).
271 See, e.g., Cole, supra note 8, at 1258.
272 See, e.g., Schoch v. Infousa, Inc., 341 F.3d 785, 789 & n.3 (8th Cir. 2003); Cole, supra note 8, at 1259; Goldman, supra note 8, at 185–86; van Ginkel, supra note 8, at 198.
273 See U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18, 26–27, 29 (1994); see also Hoeft v. MVL Group, Inc., 343 F.3d 57, 64, 65 (2d Cir. 2003) (holding that under Bonner Mall, parties could not contract for decreased review of arbitral award, but reasoning that Bonner Mall’s holding might be inapposite in the heightened-review context); Cole, supra note 8, at 1216–17, 1259–60 (reasoning that concerns of devaluation of precedent and collateral attack are not readily present in the arbitral context and thus, because parties are merely asking court to apply standards of review, court could grant request without compromising institutional integrity).
274 See 714 F.2d 673, 682–83 (7th Cir. 1983).
275 See infra notes 281–324 and accompanying text.
276 See infra notes 325–342 and accompanying text.
277 See infra notes 344–347 and accompanying text.
278 See infra notes 348–363 and accompanying text.
279 See infra notes 364–379 and accompanying text.
280 See Hoeft, 343 F.3d at 64, 65. For a fuller review of this statement, see supra note 229.
281 Hoeft, 343 F.3d at 64.
282 See Kyocera, 341 F.3d at 998–99 n.16.
283 Id.
284 See Hoeft, 343 F.3d at 64; Kyocera, 341 F.3d at 998.
285 See Hoeft, 343 F.3d at 64.
286 See, e.g., Hughes Training Co. v. Cook, 254 F.3d 588, 593, 594 (5th Cir. 2001); Gateway Techs., Inc. v. MCI Telecomms. Corp., 64 F.3d 993, 996–97 (5th Cir. 1995).
287 See 257 F.3d 287, 296–97 (3d Cir. 2001); see also Action Indus., 358 F.3d at 340–41 (reasoning that consensual nature of arbitration mandates enforcement of heightened-review clauses).
288 See Kyocera, 341 F.3d at 998, 1000.
289 254 F.3d 925, 935 (10th Cir. 2001).
290 See Merit, 714 F.2d at 681, 683.
291 See Hoeft, 343 F.3d at 64; Kyocera, 341 F.3d at 998; Bowen, 254 F.3d at 935; Merit, 714 F.2d at 681, 683.
292 See 9 U.S.C. �� 2–5, 9–10 (2000); Southland Corp. v. Keating, 465 U.S. 1, 7 (1984); Burchell v. Marsh, 58 U.S. (17 How.) 344, 349 (1854); MacNeil, supra note 51, at 33; MacNeil et al, supra note 14, �� 8.1, 9.3 n.16.
293 See Burchell, 58 U.S. at 349–50; Karthaus v. Yllas y Ferrer, 26 U.S. (1 Pet.) 222, 226–27, 229 (1828); White Star Mining Co. v. Hultberg, 77 N.E. 327, 335–36 (Ill. 1906); see also Red Cross Line v. Atl. Fruit Co., 264 U.S. 109, 121 (1924) (deciding, one year before FAA enacted, that under Burchell and Karthaus, federal courts could enforce arbitral awards).
294 Compare Burchell, 58 U.S. at 349 (holding that viability of arbitration depended on limited vacatur grounds), with Kyocera, 341 F.3d at 998 (stating that broadening judicial review of arbitral awards could limit parties’ ability to trade more circumspect decision of a federal court for more efficient arbitral determination), Bowen, 254 F.3d at 935 (reasoning that heightened review would dilute finality and thus, undermine the viability of arbitration), and Merit, 714 F.2d at 683 (holding that expanded vacatur grounds would undermine the finality of arbitration and thus, contravene FAA’s intent).
295 See First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 942, 943 (1995); Volt Info. Scis., Inc. v. Bd. of Trs. of Leland J. Stanford Junior Univ., 489 U.S. 468, 474–75 (1989); see also Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57–58 (1995) (quoting Volt and reasoning that under FAA, courts must enforce awards obtained pursuant to rules set forth in arbitral agreements). But see Action Indus., 358 F.3d at 341 n.10 (deciding that Mastrobuono stands for the broader proposition that parties may contract around judicial procedural rules set forth in FAA).
296 See 9 U.S.C. �� 2–5.
297 See id. �� 9–10; Kaplan, 514 U.S. at 942.
298 See, e.g., Kaplan, 514 U.S. at 942–43.
299 See, e.g., Prudential-Bache Secs., Inc. v. Tanner, 72 F.3d 234, 241 (1st Cir. 1995); Lifecare Int’l v. CD Med., Inc., 68 F.3d 429, 435 (11th Cir. 1995); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker, 808 F.2d 930, 933–34 (2d Cir. 1986).
300 See Advest, Inc. v. McCarthy, 914 F.2d 6, 10 (1st Cir. 1990).
301 Kyocera, 341 F.3d at 997–98.
302 See Schmitz, supra note 51, at 149–50.
303 MacNeil, supra note 51, at 31–32, 33, 35; MacNeil et al., supra note 14, �� 8.1, 9.3 n.16.
304 See MacNeil, supra note 51, at 33; see also Schmitz, supra note 51, at 150–51 (arguing that FAA drafters crafted section 10 to avoid divesting arbitrators of ultimate decision-making authority).
305 See MacNeil, supra note 51, at 33; MacNeil et al., supra note 14, �� 8.1, 9.3 n.16.
306 See Kaplan, 514 U.S. at 942–43; Kyocera, 341 F.3d at 997–98, 1000; Bowen, 254 F.3d at 935.
307 See Merit, 714 F.2d at 681; see also Schmitz, supra note 51, at 150–51 (arguing that FAA’s framers intended to preserve arbitral finality by sharply distinguishing arbitral and judicial authority).
308 See Mastrobuono, 514 U.S. at 57–58; Volt, 489 U.S. at 476 & n.5; Bowen, 254 F.3d at 935.
309 See Volt, 489 U.S. at 476 & n.5, 479.
310 See Mastrobuono, 514 U.S. at 58, 64.
311 See id. at 57; Volt, 489 U.S. at 476 & n.5.
312 Compare Mastrobuono, 514 U.S. at 57–58 (limiting Volt to requiring enforcement of arbitral procedures that encourage use of arbitration), with Action Indus., 358 F.3d at 341 n.10 (concluding that Mastrobuono’s holding implicitly overrules courts’ longstanding practice of applying FAA’s limited vacatur grounds).
313 See Bowen, 254 F.3d at 934–35.
314 See Mastrobuono, 514 U.S. at 57–58; Kyocera, 341 F.3d at 998; Bowen, 254 F.3d at 935; see also Kaplan, 514 U.S. at 942 (reasoning that under FAA, party relinquishes practical value of right to judicial review and is only entitled to extremely limited review mandated by FAA and manifest disregard for the law standard).
315 See Merit, 714 F.2d at 682–83; see also Kyocera, 341 F.3d at 991–994 (setting forth lengthy course of litigation arising out of heightened-review clause). But see Cole, supra note 8, at 1262 (rejecting judicial efficiency argument against heightened-review clauses absent empirical study).
316 See Merit, 714 F.2d at 683.
317 See Kyocera, 341 F.3d at 997–1000; Bowen, 254 F.3d at 934–37; Cole, supra note 8, at 1258.
318 See Kaplan, 514 U.S. at 942–43. Compare 9 U.S.C. � 2 (2000) (requiring that arbitral agreements be expressly enforced), with 9 U.S.C. � 10 (mandating particular standards of review after agreement has yielded arbitral award).
319 See Kyocera, 341 F.3d at 998; Bowen, 254 F.3d at 935.
320 See, e.g., Bowen, 254 F.3d at 935, 936 n.7; Merit, 714 F.2d at 683.
321 Compare Kaplan, 514 U.S. at 942 (reasoning that agreement to arbitrate divests court of authority to decide merits of dispute), Kyocera, 341 F.3d at 998 (concluding that FAA allows parties to opt for final arbitral decisions and not to jeopardize the viability of arbitration with heightened-review clauses), and Bowen, 254 F.3d at 935 (citing Kaplan and reasoning that viability of arbitration requires non-enforcement of techniques that tend to undermine finality of awards), with Hoeft, 343 F.3d at 64 (assuming, but not deciding, that equitable considerations would support enforcement of arbitral awards).
322 See Bowen, 254 F.3d at 935.
323 See Hoeft, 343 F.3d at 64.
324 Compare, e.g., Bonner Mall, 513 U.S. at 26 (setting forth petitioner’s unitary request for contractual vacatur), with Bowen, 254 F.3d at 933 (stating that one party to arbitration agreement urged court to undertake review not sanctioned by statute or precedent).
325 Bonner Mall, 513 U.S. at 20.
326 See id. at 26.
327 See, e.g., Kyocera, 341 F.3d at 989–91.
328 Compare, e.g., Bonner Mall, 513 U.S. at 20 (describing party’s request for contractual vacatur of precedent), with Bowen, 254 F.3d at 930 (setting forth party’s request for contractual standard of review).
329 See, 343 F.3d at 65.
330 See Bowen, 254 F.3d at 935.
331 See Bonner Mall, 513 U.S. at 26–27, 29.
332 See, e.g., UHC Mgmt. Co. v. Computer Scis. Corp., 148 F.3d 992, 998 (8th Cir. 1998).
333 See id.
334 See Bonner Mall, 513 U.S. at 26; Merit, 714 F.2d at 683.
335 See Bonner Mall, 513 U.S. at 26–27; Merit, 714 F.2d at 681.
336 See, e.g., Bowen, 254 F.3d at 934.
337 See Bonner Mall, 513 U.S. at 27–28.
338 See id. at 26–27.
339 See Kyocera, 341 F.3d at 998; Bowen, 254 F.3d at 935; Merit, 714 F.2d at 683.
340 See Kyocera, 341 F.3d at 998; Bowen, 254 F.3d at 935; Merit, 714 F.2d at 683.
341 See Bonner Mall, 513 U.S. at 26–27, 29; Kyocera, 341 F.3d at 997–1000.
342 See Cole, supra note 8, at 1260, 1263; van Ginkel, supra note 8, at 188–90, 198.
343 See Cole, supra note 8, at 1260, 1263; van Ginkel, supra note 8, at 192.
344 Cole, supra note 8, at 1260, 1263.
345 van Ginkel, supra note 8, at 188–89, 192, 197–98.
346 Kaplan, 514 U.S. at 947; Bowen, 254 F.3d at 935, 936 n.7; Merit, 714 F.2d at 683.
347 514 U.S. at 948.
348 See id.; Cole, supra note 8, at 1258; van Ginkel, supra note 8, at 197–98.
349 See 514 U.S. at 948.
350 See, e.g., Bowen, 254 F.3d at 935, 936 n.7.
351 See Kaplan, 514 U.S. at 942–43.
352 See, e.g., Kyocera, 341 F.3d at 997–98, 1000; Merit, 714 F.2d at 681.
353 See, e.g., Merit, 714 F.2d at 679, 683.
354 See id.
355 See id. at 683.
357 See Cole, supra note 8, at 1260 (reasoning that courts apply arbitrary and capricious standard of review to administrative agencies’ decisions to ensure minimal judicial interference in agency decision making). Compare Kaplan, 514 U.S. at 948 (holding that under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843–44 (1984), administrative agencies’ legal authority triggers deferential review), with Bowen, 254 F.3d at 935 (reasoning that FAA vacatur review must be narrow so public can rely upon arbitral finality).
356 See Merit, 714 F.2d at 682–83.
357 See Kyocera, 341 F.3d at 994, 1000; Bowen, 254 F.3d at 936; UHC, 148 F.3d at 998.
358 See Kyocera, 341 F.3d at 1000.
359 See Mastrobuono, 514 U.S. at 57–58; Volt, 489 U.S. at 479.
360 See Kyocera, 341 F.3d at 1000; see also Merit, 714 F.2d at 683 (reasoning that parties’ failure to conduct more circumspect review of arbitrator’s credentials suggested that contractual vacatur request was mode of avoiding compliance with arbitral award).
361 See Kyocera, 341 F.3d at 998, 1000; see also Bowen, 254 F.3d at 935 (reasoning that procedures that undermine finality of arbitral awards contradict pro-arbitration policy).
362 Schoch, 341 F.3d at 789 & n.3.
363 See Bonner Mall, 513 U.S. at 26–27, 29.
364 Compare Bonner Mall, 513 U.S. at 26 (reasoning that precedent is valuable because it can be utilized by all citizens), with Bowen, 254 F.3d at 935 (reasoning that FAA’s assurance of finality ensures continued viability of arbitration).
365 See Roadway, 257 F.3d at 297.
366 See Kyocera, 341 F.3d at 991–94; see also Merit, 714 F.2d at 682 (stating that confirmation was delayed for eighteen months because of contractual vacatur request).
367 See Bowen, 254 F.3d at 935.
368 Compare, e.g., Bonner Mall, 513 U.S. at 26–27 (holding that vacatur by settlement forces courts to abdicate judicial role), with Hoeft, 343 F.3d at 65 (reasoning that judicial standards of review are not property of private litigants), and Schoch, 341 F.3d at 789 n.3 (reasoning that contractual review amends the FAA and changes arbitral practice without statutory mandate).
369 See Hoeft, 343 F.3d at 64 (citing Bonner Mall, 513 U.S. at 26).
370 See id. at 64–65.
371 See Kaplan, 514 U.S. at 948.
372 See id.
373 See, e.g., Merit, 714 F.2d at 679, 683; see also UHC, 154 F.3d at 998 (warning parties that the arbitral bargain is a choice to opt out of adjudication and judicial procedures).
374 See Hoeft, 343 F.3d at 65–66 (distinguishing arbitral from judicial procedures); Kyocera, 341 F.3d at 1000.
375 See Volt, 489 U.S. at 479; see also Mastrobuono, 513 U.S. at 57–58 (confirming Volt’s validity in section 10 proceedings).
376 See Kyocera, 341 F.3d at 997–1000.
377 See id. at 1000.