Judicial Decision-Making

2 posts

Rethinking Judicial Review of Arbitration

By Nico Gurian

Mandatory arbitration is everywhere in the daily life of most Americans — when they sign a cell phone contract, buy a cable subscription, or sign up for a checking account. For most Americans, there is no avenue to acquire these basic goods and services without giving up the right to litigate disputes before a court of law. The increased use of mandatory arbitration clauses is not an accident. Buoyed by the Supreme Court’s expansive interpretation of the Federal Arbitration Act over the last few decades, businesses have used mandatory arbitration clauses to insulate themselves from liability by, for example, including class-action waiver provisions in arbitration agreements that can make it financially impossible for plaintiffs to bring substantive claims.

A key aspect of the current arbitral system is that arbitrators’ decisions are subject to extremely limited judicial review, which is an underlying assumption of both Supreme Court jurisprudence and scholarship in this area. This Note seeks to question that assumption. First, it considers traditional rationales for limited judicial review of arbitral decisions and argues that these justifications fail to take into account the realities of the current arbitral system. Second, borrowing from administrative law, it offers a proposal for how states could tailor a system of increased judicial review of arbitration decisions that would better promote fairness while preserving the positive effects of arbitration.

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Clashing Standards in the Courtroom: Judicial Notice of Scientific Facts

By Gregory Segal

The doctrine of judicial notice, contained in Rule 201 of the Federal Rules of Evidence, serves as a powerful tool for judges to bring in adjudicative facts without introducing any witnesses. Given the broad language of Rule 201(b), federal courts have used this doctrine for a wide and expanding range of materials. When a fact is judicially noticed, its impact is tremendous: in civil cases, under Rule 201(f), a jury must treat any fact that has been judicially noticed as conclusive. Judicial notice can be applied to scientific facts, but little attention has been paid to how judicial notice operates vis-à-vis the high bar set for the admission of expert scientific testimony under Daubert.

This Note explores this possibility. It begins by explaining the mechanics of judicial notice and the Daubert standard, and looks at how judicial notice has been applied to certain scientific facts. The Note identifies potential problems with current approaches: misapplication of Rule 201 with scientific facts and the possibility of evidence getting in via the judicial notice standard but not under Daubert. This Note argues that transparency is the key to avoiding these problems, such as judges providing more detailed explanations when taking judicial notice, applying Daubert in their judicial notice analysis, and more clearly citing precedent in taking judicial notice.

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