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Student Publications Homepage
ARTICLE CONTENTS
[Pages 943-988]
TOP OF ARTICLE
Introduction
I. The Federal Arbitration Act: History, Text, Structure, Legislative History, and Precedent
A. History: Finality as a Basic Assumption
B. Text, Structure, and Legislative History:
Presuming and Preserving Finality
1. Text: Inherent Ambiguity and Seeming Judicial Expansion
2. Structure: Clear Division of Labor Between Arbitrators and Courts
3. Legislative History: The Lack Thereof and Its Implications
C. The U.S. Supreme Court’s Implicit Distinction Between Arbitral and Judicial Proceedings and Its Limited Section 10 Jurisprudence
II. The Current Circuit Split: Trending away from Policy and Towards Judicial Integrity
A. Judicial Review as a Matter of Contract: Pro-Heightened-Review Courts’ Default Analysis of the FAA
B. Proceeding with Caution: The Eighth Circuit’s Noncommittal Approach
C. A Dualist Approach to Rejecting Heightened-Review Clauses
1. The Tenth Circuit’s Pro-Arbitration Policy Approach
2. Beyond Pro-Arbitration Policy: The Ninth Circuit’s Textualist Approach
D. Recent Development: The Second Circuit Holds that Judicial Standards of Review Are Not the Property of Private Litigants
E. Previous Scholarly Attempts at an Analytical Framework
III. Bonner Mall and Its Forerunner in the Arbitral Context
IV. Analysis: History, Text, Structure, and Precedent Support Application of Bonner Mall’s Extraordinary Circumstances Test to Heightened Standard of Review Clauses
A. The Extraordinary Circumstances Test Ensures the Preservation of the Final and Binding Arbitration that the FAA Was Intended to Protect
1. History, Text, Structure, Legislative History, and Precedent Support the Seventh, Ninth, and Tenth Circuits’ Finality Analysis
B. Bonner Mall’s Compatibility with Arbitral Practice and Its Superiority to Previous Attempts at a Uniform Standard of Review
C. Overcoming Scholarly Objections to Bonner Mall Through an Application of Kaplan and Pro-Arbitration Policy
1. All Proposed Models Ignore the Primary Institutional Advantage of Arbitration—Finality
2. Proposed Models Belie Their Pro-Arbitration Policy Claim
D. Putting It All Together: Finality, Relative Fault, Judicial Integrity, and Pro-Arbitration Policy Support the Applicability of Bonner Mall’s Extraordinary Circumstances Test to Heightened
Standard of Review Clauses
Conclusion
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