Critics object to the Supreme Court's application of the Federal Arbitration Act (FAA) (1) in state court to preempt state law, and (2) to the agreements of consumers and (3) workers, especially respecting (4) class actions and (5) statutory claims. All five of these developments - which have driven the widespread enforcement of consumers' and workers' adhesive arbitration agreements - are widely characterized, including by many chapters in this book, as post-1980 inventions of the Supreme Court unsupported by the original FAA. However, that characterization is insufficiently sympathetic to the Supreme Court because it does not give sufficient weight to the difficult position the Court was in when deciding those cases. The FAA was enacted in the 1920s before the landmark federalism case of Erie v.Tompkins, the New Deal's expansion of the Commerce Clause and thus of federal power to preempt state law, the growth of federal employment and consumer law in the 1960s and 1970s, and the ensuing explosion of class actions. Each of these enormous changes to our nation's legal landscape conflicted with the premises underlying the FAA. While Congress could have amended the FAA to accommodate and be more consistent with these enormous changes, it did not. So, reconciling an old statute with a half century of law in tension with that statute's premises became the Court's task. The Court navigated this task in a more principled and judicious way than it is often given credit for, as this chapter explains.

In the contemporary United States, lawyers tend to be relatively progressive, and in nearly every state more progressive than their state’s voters. As judges are nearly always lawyers, previous scholarship unsurprisingly finds that judges tend to be more progressive than their states’ voters. Moreover, previous scholarship finds that the size of this “leftward skew in the judiciary” varies according to the method by which judges are selected. The leftward judicial skew tends to be larger in Missouri Plan states—that is, states that empower the bar to pick some members of the judicial nominating commission—than in states in which judges are selected by elected officials or partisan elections. These findings support the straightforward hypothesis that a judicial selection process empowering a relatively progressive group (the bar) tends toward more progressive judges, while judicial selection by the voters, or by the voters’ elected representatives, tends toward judges more ideologically compatible with those voters. Recognition of this tendency likely contributes to the hardening divide between what this article refers to as today’s two major judicial selection teams: Team Missouri Plan consisting of mostly of progressive Democrats centered on the legal profession and Team Judicial Elections consisting mostly of increasingly populist conservative Republicans.However, leftward judicial skew tends to be larger not only in Missouri Plan states but also in states with nonpartisan judicial elections. As nonpartisan elections do not give lawyers or any other relatively progressive group heightened power, previous scholarship suggests that they skew left because they remove party identifiers from the ballot, so voters tend to vote for reasons uncorrelated with ideology, which results in a group of judges who tend to lean left about as much as the pool of lawyers from which they are chosen.In contrast, this article suggests another factor plausibly contributing to leftward judicial skew in some nonpartisan election states, the displacement of those elections by interim appointments. This article provides data from five nonpartisan election states—Georgia, Idaho, Minnesota, North Dakota, and Oregon—in which most justices join the supreme court not by election but by appointment to fill a midterm vacancy. Not only are justices in these ostensibly elective states mostly appointed, but these appointments tend to lead to secure long-term positions, as only one incumbent justice from among these five states has lost reelection since 1992, and many incumbents run unopposed. So, any ideological skew of these states’ supreme courts may be due less to the choices voters make when deprived of party labels than to the choices made by those with power in the interim appointment process.The interim appointment processes in three of these five states empower a relatively progressive group: the bar in Idaho and North Dakota and the governor in Oregon, who has always been a Democrat since 1987. So, in each of these three ostensibly elective states any leftward judicial skew may be the result of displacing elections with an interim appointment process empowering progressives relative to their power in the state’s electorate.As in Oregon, the governor has complete power over interim supreme court appointments in Minnesota and Georgia. While Minnesota’s governors have not been uniformly Democratic for nearly as long as Oregon’s, Minnesota resembles Oregon in that the bench and bar of each state tried to replace supreme court elections with a version of the Missouri Plan but failed to win a majority in a referendum (Oregon) or the legislature (Minnesota). Despite these failures to win democratic majorities for replacing supreme court elections however, supreme court elections in these two states have nevertheless been largely displaced by interim appointments. And this seems in both states to have most displeased populist conservatives, who have been relegated to unsuccessful long-shot campaigns against entrenched incumbents. So, in Oregon and Minnesota displacement of elections with interim appointments seems to have been a progressive, or progressive-and-centrist, project opposed especially by populist conservatives.In contrast, Georgia’s displacement of elections with interim appointments departs from that ideological pattern. Unlike Oregon and Minnesota, Georgia has had a run of Republican governors and has not had a strong push from the bench and bar to institute the Missouri Plan. So, although the prevalence of interim appointments has been criticized in Georgia, as it has in Oregon and Minnesota, for transferring selection power from the voters to the elites, that criticism in Georgia seems not as predictably by Republicans of Democrats as it is in Oregon and Minnesota.

Courts do not enforce contracts prohibiting a party from filing for bankruptcy, but what about contracts requiring that any bankruptcy filing and ensuing case be in arbitration rather than in court? This article is the first to envision unanimous arbitration agreements among all the parties to a bankruptcy. It concludes that the Federal Arbitration Act requires courts to enforce such agreements, and it shows how fully the FAA enables parties to move both personal and business bankruptcy from litigation to arbitration, so long as the arbitration agreement is unanimous. However, this article also shows that with respect to nearly all business debtors the practical challenges of securing unanimous consent to a predispute arbitration agreement are daunting. So, unanimous agreements to arbitrate will be extremely rare for all but the smallest, simplest firms. In contrast, unanimous consent by all creditors of an individual debtor predicts to be less rare. But even if enforceable agreements to arbitrate personal bankruptcies are achievable with some frequency, the greater recoveries they would provide creditors seem usually not worth the additional fees of arbitration compared to publicly subsidized courts.

Executive power should be constrained by checks and balances. The United States’ long and strong tradition of concerns about executive power, and its complementary tradition of Madisonian checks and balances on and to the executive, include the selection of supreme court justices. Neither the U.S. Constitution nor the constitution of any state places solely in the executive the power to appoint a justice to begin a new term on the (federal or state) supreme court. However, several states fail to constrain gubernatorial power in selecting justices to finish a term already started by another justice and these interim appointments are the norm in several such states. This Article argues that states with interim supreme court appointments should subject the governor’s appointment power to a nominating commission or a confirmation vote. And this Article argues that the urgency of adopting such a constraint on the governor is highest in states—Minnesota, Georgia, and Oregon—in which the supreme court acquires most of its new members through interim appointment, and in which an interim appointment nearly always leads to a safe multi-term position on the supreme court. Supreme court appointments are simply too important to leave to the unchecked discretion of a single person.

In 2021, a bankruptcy court refused to enforce an arbitration agreement because, among other reasons, the debtor rejected the contract containing the arbitration agreement under Bankruptcy Code § 365. In concluding that rejection meant the debtor was “no longer bound by the [contract]’s provisions that impose specific performance obligations on it—provisions such as the Arbitration Clause,” the bankruptcy court rightly found “support in” a 2014 federal district court decision refusing to enforce an arbitration agreement against a receiver who had rejected that agreement under receivership law similar to § 365. These two decisions conflict with a long line of cases enforcing executory arbitration agreements notwithstanding rejection under § 365. Moreover, the Supreme Court’s Mission Prod. Holdings, Inc. v. Tempnology decision supports this long line of cases, as another bankruptcy court recognized by citing Tempnology in holding that “the bankruptcy code does not render arbitration clauses in rejected executory contracts inoperative.” Bankruptcy Code § 365 gives the trustee or debtor-in-possession representing a bankruptcy estate the power to choose whether the estate will assume or reject many of the executory contracts formed by the pre-bankruptcy debtor. Section 365 instructs courts to treat the estate’s rejection of an executory contract as though the pre-petition debtor had breached that contract. This treatment typically means that the non-debtor party to the rejected contract will collect no money from the estate or merely a small portion of the money damages a non-bankruptcy court would have awarded for the debtor’s breach of contract had the debtor stayed out of bankruptcy. In this sense, rejection of an executory contract typically weakens enforcement of that contract by the non-debtor party seeking money damages. In contrast, the rejection of an executory arbitration agreement formed by the pre-bankruptcy debtor does not—except in the two outlier cases noted above—weaken the non-debtor party’s enforcement of that arbitration agreement. Notwithstanding rejection under § 365, nearly all courts enforce executory arbitration agreements against the estate with the remedy of specific performance that compels the estate to arbitrate. However, § 365 cases have been uneven in their handling of arbitration law’s separability doctrine, which holds that “arbitration clauses as a matter of federal law are ‘separable’ from the contracts in which they are embedded.” The separability doctrine may, at least initially, seem to conflict with § 365 cases stating that an executory contract must be assumed or rejected in its entirety under the “all-or-nothing rule.” Difficulties combining the separability doctrine with § 365 have produced erroneous statements by several courts, including the Third Circuit’s oft-cited decision in Hays and Company v. Merrill Lynch, Pierce, Fenner, & Smith, Inc. This Article has two main parts. Part I begins with § 365 and the consequences of assumption and rejection, before exploring the implications of the United States Supreme Court’s statement in Mission Prod. Holdings, Inc. v. Tempnology, that “[a] rejection breaches a contract but does not rescind it. And that means all the rights that would ordinarily survive a contract breach . . . remain in place” after rejection. Consistent with this statement and its likely implications, Part I shows, many courts before, and one after, Tempnology have specifically enforced arbitration agreements against the estate, notwithstanding rejection of those arbitration agreements. Part I argues that these many cases are right rather than the two outlier cases identified at the start of this Article.Part II of this Article explains arbitration law’s separability doctrine and integrates it with bankruptcy law. This analysis shows, contrary to the outlier cases and some commentators, that the separability doctrine is compatible with, and even further supports, courts’ conclusions that rejection under § 365 does not prevent specific enforcement of an arbitration agreement. The Article concludes that a pre-bankruptcy debtor’s arbitration agreement is specifically enforceable by or against the estate, regardless of whether the rest of the contract containing the arbitration agreement is executory. And either party is entitled to specific performance of the arbitration agreement regardless of whether the estate has rejected it and the broader contract containing it or rejected only the arbitration agreement while assuming the broader contract containing it.

The strong and widely-accepted reasons for using gender-neutral language presumptively apply to the gendered word paternalism and its gender-neutral counterpart, parentalism. So this article’s thesis is that legal scholars should begin with a presumption for using the gender-neutral word parentalism, while using paternalism only when emphasizing the important relevance of gender or otherwise trying to convey a gendered meaning. Accordingly, many legal scholars define paternalism in an expressly gendered way — such as “the institutionalization of male dominance,” or an “ideology [that] teaches men to minimize women's agency” — or fittingly use paternalism to describe an attitude especially characteristic of men or directed primarily toward women. All these many uses of the gendered word paternalism are supported by the writers’ apparent intent to emphasize the important relevance of gender to the writers’ points. On the other hand, and despite the spread of gender-neutral language throughout our society and legal profession, many legal scholars continue to use the gendered word paternalism without indicating any important relevance of gender or otherwise manifesting intent to convey a gendered meaning. These many writers use paternalism rather than parentalism to describe laws or policies aiming to protect people (of all genders) by restricting their choices. For example, these writers cite “paternalism” as a standard justification for restrictions on contractual choice or other private ordering, including the unconscionability doctrine, usury laws, the minimum wage, and countless regulations limiting the range of enforceable promises by consumers, borrowers, employees, investors, and others. In each of these contexts, better to use the gender-neutral word parentalism, unless the writer emphasizes the relevance of gender or otherwise manifests an intent to convey a gendered meaning. For example, a writer could justify using the gendered word paternalism by arguing that all our laws are gendered male so gendered language should be used to discuss any law, including using paternalism to describe laws aiming to protect people of all genders by restricting their choices. Or a writer could justify using the gendered word paternalism by arguing (after citing sufficient empirical data) that protect-by-restricting-choice parenting is gendered male, so analogous protect-by-restricting-choice laws and policies are also gendered male. Absent one of those two plausible arguments justifying use of the gendered word paternalism, laws or policies aiming to protect people of all genders by restricting their choices are better described as examples of parentalism. In short, a presumption for using the gender-neutral word parentalism to describe laws or policies aiming to protect people of all genders by restricting their choices is well-grounded in the strong and widely-accepted reasons for ordinarily using gender-neutral language. And examining legal scholarship’s many uses of paternalism and parentalism illuminates our understandings of gender in both law and parenting.

This Article shows that while a significant amount of commercial arbitration occurred at each stage of U.S. history, labor arbitration was extremely rare until the 20th century, and remained uncommon until the New Deal of the 1930s. In the late 19th and early 20th centuries—amidst vast inequalities of wealth and violent labor disputes—employers generally succeeded in maintaining at-will employment by refusing to recognize labor unions, let alone agree to unions’ demands to replace at-will employment with arbitration of employee grievances. Pre-1930s employer successes in defeating unions were aided by a range of legal doctrines from the law of master-servant and tort, to the Sherman Antitrust Act and enforcement of workers’ promises not to join unions, to Lochner era constitutional law. And all these doctrines were undergirded by a classical liberal emphasis on freedom of contract with respect to the sale of labor. By contrast, the Great Depression combined with the early 20th century ideological shift from classical liberalism to progressivism to produce massive legal changes in the 1930s. The key legal change was legally-encouraged labor cartelization, the economic policy of the landmark Wagner Act of 1935, now known as the National Labor Relations Act (NLRA). The NLRA’s legally-encouraged labor cartelization produced labor grievance arbitration by empowering unions to extract from employers the promises—like firing workers only “for cause”—that create the claims (grievances) in labor arbitration, as well as employers’ promises to resolve those claims in arbitration rather than litigation. And labor grievance arbitration’s roots in legally-encouraged labor cartelization largely explain many of labor arbitration’s important differences from other arbitration, as discussed in my forthcoming article, Labor Grievance Arbitration’s Differences.

“Private ordering” is an important concept and commonly-used phrase in legal scholarship. At least three “ordering” activities often performed by governments can be privatized: lawmaking, adjudication, and enforcement of adjudicators’ decisions. Distinguishing among these activities and offering lasting lessons on their privatization — but nowadays not often credited for doing so — is Soia Mentschikoff’s seminal 1961 article, Commercial Arbitration. This short piece reconsiders Mentschikoff’s classic article in light of contemporary scholarship on private ordering and credits Commercial Arbitration with teaching us lasting lessons about commercial arbitration and even about commerce itself. Key to these lessons is Mentschikoff’s empirical study of trade association arbitration and her comparison of such industry-specific arbitration with the more general commercial arbitration exemplified by the American Arbitration Association (AAA). This comparison shows arbitration’s ability — especially in the “core commercial” context of trade associations — to privatize all three of the aforementioned “ordering” activities: lawmaking, adjudication, and enforcement of adjudicators’ decisions. Mentschikoff thus builds impressively from the humble context of routine sales disputes to enduring insights about the role of private ordering in the production, application, and enforcement of law.

Scalding criticism of Supreme Court arbitration decisions appeared in the 1990’s and is now widespread. Over twenty years ago, the Supreme Court held that pre-dispute arbitration clauses in adhesion contracts are generally enforceable. Thoughtful scholars then feared threats to consumers’ and employees’ rights, and today similarly warn that the Court’s recent arbitration decisions “will provide companies with free rein to commit fraud, torts, discrimination, and other harmful acts without fear of being sued.” Professors are not the only sources of strong language opposing the Court’s arbitration decisions. Under the heading “Forced Arbitration Destroys Individual Rights,” a 2015 federal court decision declares: “Today, forced arbitration bestrides the legal landscape like a colossus, effectively stamping out the individual’s statutory rights wherever inconvenient to the businesses which impose them. What is striking is that, other than the majority of the Supreme Court, whose questionable jurisprudence erected this legal monolith, no one thinks they got it right.” From this alleged consensus of “No one thinks they got it right,” this Article dissents in significant part. While I have long opposed Supreme Court decisions on arbitration law’s separability doctrine and judicial review of arbitration awards, and would reduce adhesive arbitration agreements’ impact on class actions, I continue to sympathize with some of the Court’s long-controversial arbitration decisions. I choose the word “sympathize” because I believe much of the criticism of the Court’s arbitration decisions does not sufficiently weigh the difficult position the Court was in when deciding those cases. The FAA was enacted in the 1920’s before the landmark federalism case of Erie v. Tompkins, the New Deal’s expansion of the Commerce Clause and thus of federal power to preempt state law, the growth of federal employment and consumer law in the 1960’s and 1970’s, and the ensuing explosion of class actions. Each of these enormous changes to our nation’s legal landscape conflicted with the premises underlying the FAA. While Congress could have amended the FAA to accommodate and be more consistent with these enormous changes, it did not. So, reconciling an old statute with a half century of law in tension with that statute’s premises became the Court’s task. The Courts’ critics generally argue that the drafters and adopters of the FAA did not intend for it to: (1) preempt state law or (2) cover consumer and employment arbitration agreements. This Article responds to those arguments.

The Politics of Arbitration and Centrist Proposals for Reform, 53 Harvard J. on Legislation 711 (2016), explained how issues surrounding consumer, and other adhesive, arbitration agreements became divisive along predictable political lines (progressive vs. conservative) and proposed an intermediate (centrist) position to resolve those issues. However, The Politics of Arbitration Law did not argue the case for this centrist position. It left those arguments for two more articles: (1) The Centrist Case against Current (Conservative) Arbitration Law, 68 Florida Review 1227 (2016), which argued against the overly-conservative parts of current arbitration law; and (2) this Article, which argues against progressive proposals to repeal, not only the overly-conservative parts of current arbitration law, but also the parts of current arbitration law that should be retained. While progressives would prohibit enforcement of individuals’ adhesive arbitration agreements, this Article argues that such agreements generally should be enforced.

Arbitration law in the United States is far more controversial when applied to individuals than to businesses. While enforcement of arbitration agreements between businesses sometimes raises legal issues that divide courts, those issues tend to interest only scholars, lawyers, and other specialists in the field of arbitration. In contrast, enforcement of arbitration agreements between a business and an individual (such as a consumer or employee) raises legal issues that interest many members of Congress and various interest groups — all of whom have taken positions on significant proposals for law reform. The Consumer Financial Protection Bureau has extensively researched and reported on consumer arbitration agreements and is expected to issue a rule regulating, or even prohibiting, such agreements. This Article both explains how issues surrounding consumer and other adhesive arbitration agreements became divisive along predictable political lines and introduces a framework to understand and compare various positions on them. This new framework arrays on a continuum five positions on the level of consent the law should require before enforcing an arbitration agreement against an individual. Progressives generally would require higher levels of consent than arbitration law currently requires, while conservatives generally defend current arbitration law’s low standards of consent. This Article proposes an intermediate (or centrist) position. It joins progressives in rejecting conservative-supported anomalies that enforce adhesive arbitration agreements more broadly than other adhesion contracts on the three important topics: contract-law defenses, correcting legally-erroneous decisions, and class actions. Once these anomalies are fixed though, adhesive arbitration agreements should — contrary to progressives — be as generally enforceable as other adhesion contracts. In other words, this Article joins conservatives in defending general enforcement of adhesive arbitration agreements under contract law’s standards of consent. The Article briefly concludes with the language of a rule the CFPB could adopt to enact into law the reforms advocated in this Article.

In The Politics of Arbitration Law and Centrist Proposals for Reform, I explained how issues surrounding consumer and other adhesive arbitration agreements became divisive along predictable political lines (progressives vs. conservatives) and proposed an intermediate (or centrist) position to resolve those issues. However, The Politics of Arbitration Law did not argue the case for my proposals. It left those arguments for this Article, which makes the case against current (conservative) arbitration law, and a third article, which will make the case against progressive proposals to reform arbitration law. In other words, this Article stands out from the many other articles critiquing current arbitration law because this Article’s critique comes from a centrist, rather than progressive, perspective. For that reason, this Article’s critique may be more likely than progressive critiques to gain traction with lawmakers.

Success in life requires the ability to resist urges and control behavior. This ability is commonly called “willpower,” the capacity to overcome impulses and engage in conscious acts of self-control. Social psychologists believe willpower is a finite resource dependent on physiological bases including glucose (from food and drink), sleep and other forms of rest, and the absence of stress. In short, people who are hungry, exhausted, or highly stressed tend to have less willpower than those who are well-fed, well-rested, and relatively stress-free. In addition, a person who exerts self-control (uses willpower) tends to reduce temporarily the amount of willpower remaining, so decision-making and other aspects of self-control are weakened during this depleted state. Restoring willpower (and thus restoring decision-making abilities) can often be achieved by physiological replenishment, such as: ingesting glucose, sleep (and other forms of rest) and breaks from stress. The physiological bases of willpower combine with the importance of deadlines to offer a compelling explanation for why so many mediations follow a predictable pattern. Most significantly, the physiological bases of willpower go a long way to explaining why many mediations scheduled for a single day begin with stalwart opening positions and end with a signed settlement agreement late in the day. This Article provides a physiological explanation of typical mediation behavior and shows that an awareness of physiology reveals ethical issues with current mediation practice. Part I of this Article discusses the science, specifically the Strength and Glucose Models of Self-Control and their applications across studies of medicine, morality and negotiation. Part II outlines the course of a typical daylong mediation and shows the extent to which common mediation behavior is well-explained by the physiology of willpower when people are operating under deadlines. Part III examines the significance of the Glucose Model of Mediation by identifying ethical issues relating to willpower depletion in mediation.

The phrase "financial distress" pervades scholarship in bankruptcy, consumer law, and related fields. This Article questions the definitions scholars now often affix to this phrase and argues that it should be understood differently. I argue that "financial distress" should be defined and understood more broadly because the now-prevailing narrow definition tends to overstate the importance of distress caused by unmanageable debt and understate the importance of distress caused by poverty.

At the level of constitutional law, Williams-Yulee is a First Amendment case about judicial campaign fundraising. The First Amendment issues raised by judicial campaigns and money in politics are vital, and they are not the only issues implicated by Williams-Yulee. Williams-Yulee also implicates broader questions about how judicial election campaigns should be funded and ultimately whether to have judicial elections at all. I bring to Williams-Yulee a longstanding interest in a wide range of legal and policy issues surrounding judicial selection, including issues surrounding the extent and implications of correlations between judicial campaign contributions and judges’ rulings. Williams-Yulee seems an opportune time to reconsider my and others’ longstanding concerns about judicial elections.

In the United States, arbitrators’ decisions are legally binding. Courts generally confirm and enforce, rather than vacate, arbitration awards. Suppose, however, that the arbitration award is very different from the judgment a court would have rendered had the dispute been litigated, rather than arbitrated. And suppose this is because the arbitrator did not correctly apply the law. If the party that lost in arbitration (the party that would have done better with a correct application of law) asks a court to vacate the award because it is legally erroneous, will the court vacate or confirm the award? And does the answer depend on:• Whether the parties formed their agreement to arbitrate before or after the dispute arose?• Whether the agreement’s terms ask courts to vacate or confirm legally-erroneous arbitration awards?• Whether the arbitrator did not try to apply the law or tried to apply it but did so incorrectly?• Whether the law the arbitrator did not correctly apply is well-established or in doubt? Simple or complex?• Whether the law the arbitrator did not correctly apply is mandatory law (binding on the parties despite a contract term to the contrary) or default law the parties may contract around?These questions are the subject of this article. I suggest that arbitration law in the United States has answered these questions differently over time and that these changes in legal doctrine roughly divide into four eras. Unfortunately, recent Supreme Court cases have left much uncertainty on the fundamental question whether arbitration awards must apply the law correctly to avoid vacatur.

Journal Article A 20th Century Debate About Imprisonment for Debt Get access Stephen J. Ware Stephen J. Ware Professor of Law *University of Kansas. Thanks to Professors V. Markham Lester, Douglas Baird, John Paul Tribe, David Milman, and Michael Hoeflich for helpful suggestions and to Darin Van Thournout, Tim Bogner, Tyler Manson, Cheri Whiteside, and Todd Burkett for excellent research assistance. Search for other works by this author on: Oxford Academic Google Scholar American Journal of Legal History, Volume 54, Issue 3, July 2014, Pages 351–377, https://doi.org/10.1093/ajlh/54.3.351 Published: 01 July 2014