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U.S. Supreme Court cites work of KU law professor in arbitration case opinion

Tue, 01/17/2012

Stephen J. Ware


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LAWRENCE – The U.S. Supreme Court cited the work of a University of Kansas School of Law professor in an opinion released last week that reaffirms the enforceability of agreements to arbitrate disputes, rather than take them to court.

KU law professor Stephen J. Ware’s article, “Arbitration and Unconscionability after Doctor’s Associates Inc. v. Casarotto,” was referenced by Justice Antonin Scalia’s opinion for the Supreme Court’s majority in the case of CompuCredit Corp. v. Greenwood.

Ware said the Federal Arbitration Act requires courts to enforce arbitration agreements, but “the Supreme Court has repeatedly emphasized that Congress can repeal that entirely or make exceptions to it for particular claims.” The main issue in the CompuCredit case was whether Congress made such an exception in the Credit Repair Organizations Act, Ware explained.

The Ninth Circuit Court of Appeals in San Francisco held that Congress had made such an exception, but the Supreme Court reversed.

“The Ninth Circuit has a reputation for liberal rulings that are often overruled by the Supreme Court,” Ware said. “This case fits that pattern.”

Ware’s article, published in 1996, the same year the Credit Repair Organizations Act was enacted, observed that era’s increasing use of arbitration clauses in contracts of the type at issue in the CompuCredit case. The Supreme Court relied on this observation in noting that the Congress that enacted that Act could have excluded such claims from arbitration but did not clearly do so.

Ware is available to the media to provide commentary on the CompuCredit decision and arbitration and consumer law issues generally.

Arbitration is an alternative to litigation in resolving disputes. The parties present their evidence and arguments to a neutral arbitrator, much as they would to a judge or jury. Disputes go to arbitration only when the parties have previously formed a contract agreeing to arbitrate the dispute.

Several bills pending in Congress, including the Arbitration Fairness Act, would prevent courts from enforcing pre-dispute arbitration agreements in consumer and employment contracts. Ware has testified on such bills before both houses of Congress.



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