Note

Prospects for Judicial Review of Arbitration Awards Under State Law

Binding arbitration offers parties a means to resolve their dispute without the cost and delay of litigation. To ensure that arbitration is not merely a prelude to litigation, 49 jurisdictions have adopted arbitration statutes with an identical list of grounds on which a court can review and vacate an arbitral award. Congress has enacted the Federal Arbitration Act, 9 states have adopted arbitration statutes based on that act, and 38 states and the District of Columbia have adopted the Uniform Arbitration Act. Under the Federal Arbitration Act, as recently interpreted by the Supreme Court in Hall Street Associates v. Mattel (2008), and under 38 state courts’ interpretations of their arbitration statutes, a court cannot vacate an arbitration award for an arbitrator’s mistake or disregard of fact or law. Critics argue that this lack of substantive review gives too much discretion to arbitrators, and that fear of “maverick” arbitrators drives parties away from arbitration.

Virginia is indicative of this national trend away from judicial review of arbitration. Virginia adopted the Uniform Arbitration Act in 1986, and its highest court has consistently held that the grounds for vacatur under that act are exclusive. This paper examines the possible avenues that exist under current state law, using Virginia as a case study. Moreover, this paper suggests statutory amendments, some of which have been adopted in a few other jurisdictions, that might serve to better balance the competing concerns of arbitral finality and judicial oversight. These proposals under Virginia law serve as a model that can be applied in the other jurisdictions that grapple with those same concerns under similar arbitration statutes.

Record Viewership: Towards a Theoretical Framework for the Video Record

It has been almost thirty years since the use of videotapes to create trial records began to gain acceptance in this country, but many questions linger about the impact of video records on issues related to appellate review. While there has been a recent movement towards the expansion of video record use in lieu of court stenographers, many states continue to use both methods and the replacement of stenography with video records is highly controversial. The argument has recently been made that the video record is both more accurate and cost-effective than stenography, but the implications of thoroughly integrating video into the court system have not been fully considered. Particularly in the area of appellate review, a theoretical framework is needed to facilitate decision-making about the integration of the video record into American jurisprudence. This Note examines the current debate over which method of creating a trial record is preferable, analyzes potential legal issues created by a switch to video recording, and argues that a transition to the video record must be accompanied by a detailed, carefully considered framework for appellate review. Finally, this Note proposes a basic theoretical framework for dealing with the most important known ramifications of a transition to the video record.

Confusion and Coercion in Church Property Litigation

This Note argues that by allowing states to apply their own idiosyncratic common and statutory law to disputes over church property between supercongregational denominations and local parishes, the “neutral principles” approach that the Supreme Court validated in Jones v. Wolf inevitably creates inconsistency in the results of these disputes. This inconsistency in turn coerces denominations such as the Protestant Episcopal Church and the United Presbyterian Church into abandoning either their method of property management or traditional control over parishes. In effect, mainline supercongregational Protestant denominations are forced, in violation of their Free Exercise right to choose their own form of governance, to become either more “Catholic” or more “Baptist.” As a remedy to this problem, this Note proposes a novel solution—a federal statute to standardize and simplify the decision rules for church property disputes. Although such a statute would raise constitutional issues of its own, this Note concludes that such a statute would be within Congressional jurisdiction and permissible under both the Establishment Clause and the Free Exercise Clause.

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