Arbitration is the fastest growing discipline within the broader area of conflict resolution and is a growing portion of the dockets of the U.S. Supreme Court and the U.S. Courts of Appeal. If you intend to practice in the area of litigation, you will encounter arbitration and, therefore, need to be familiar with this area.
For the largest portion of the 20th century, arbitration was admittedly a pretty dull area and confined mainly to labor law, the law merchant and large commercial transactions. Then, three decades ago, the U.S. Supreme Court got religion and, as a result, arbitration has exploded into almost every area of the law, even those covered by small firms and sole practitioners. Whether doing a “click-through” when accepting terms for an internet purchase, signing a consent-to-treatment form in the emergency room at the hospital, picking up an employee handbook at a new job, or signing on the bottom line for the purchase of a shiny new car, individuals may be signing binding arbitration agreements without knowing one iota about the arbitration. Besides, no one reads the fine print, do they? Have you?
Arbitration has grown far beyond its original roots dating back to the middle ages where parties or relatively equal bargaining power, sought a neutral forum where a specialist from their own field could render a decision swiftly and economically, and without worrying about the vagaries of the courts in the local principalities or the ecclesiastical courts. Now, arbitration is often imposed on the weaker party in consumer, health care, and employment etc. with the rules of the arbitration written to favor the powerful party.
Opinions are coming quickly from both state and federal courts (especially the U.S. Supreme Court) that interpret, reinterpret, and dramatically change arbitration law across the land. Using these cases, updated to the moment, along with the state and federal statutes, the course will help the students construct an understanding of the major issues their clients may face in this rapidly expanding field.
The course will cover the dynamics of the Federal Arbitration Act (FAA) and how it has become the principle tool for the growth of arbitration. Is the FAA a source of federal question jurisdiction? How do parties use it to enforce or avoid arbitration? How has the federal principle of preemption developed around the FAA? How has the FAA impacted parties’ rights of access to civil trial under the federal civil rights acts in face of written arbitration agreement – mostly negatively? What rights of appeal exist under the FAA?
The course will also review the defenses, both at law and equity that parties have to avoid the enforcement of an arbitration clause? How does the FAA interact with state arbitration statutes, other state and federal laws, state statutes and administrative regulations and procedures? The FAA creates a separate body of federal common law. How does it exist and interact with state common law?
The principle aim of arbitration is to give you a giant head start in the field. If you do the work, you should know a great deal more about arbitration than a just a few expert attorneys practicing in New Mexico at this time.