Civil Procedure by Contract: A Convoluted Confluence of Private Contract and Public Procedure in Need of Congressional Control
Taylor, David H.
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This article will examine the basic nature of our public system of dispute resolution and consider what role, if any, there is for private contracts that alter that system. This article will begin by tracing the evolution of PLAs from their initial disfavorment by courts to their wide spread present day acceptance. Also, this article will compare the standards for recognition and enforcement of PLAs that have been given life by courts to those that are the creations of deliberative bodies. The main emphasis will be on discussing how effective the various approaches have been in preserving fundamental fairness in dispute resolution. It will be the authors’ contention that courts have rushed to embrace most forms of PLAs, and in so doing have overlooked, if not forsaken, an underlying concern for fundamental fairness in favor of preservation of contractual autonomy. Though the PLAs created by deliberative bodies have sought to better protect fundamental fairness, this article will discuss how judicial action has largely eliminated the checks on the utilization of PLAs intended by Congress. The arbitration clause will be our prime example. Further, this article will discuss how the favor with which the judiciary embraces PLAs has afforded them a status of “super contract,” a status that transcends traditional rules of contract law and results in near-automatic enforcement by means of specific performance. Additionally, this article will argue that the recognition and the enforcement of parameters lies in the province of the legislature. Moreover, because of the mess that the courts have made out of the question, it is well past time for Congressional action defining the manner and the extent to which the system of public dispute resolution may be altered by private agreement. Not only is legislative action long overdue, by tracing the history of the Federal Arbitration Act, which established recognition of the arbitration clause, the authors will argue that it is only Congress, through its Article II power, that has the constitutional authority to create PLAs. The authors will conclude with some brief suggestions for what Congress should address in the event it chooses to heed this call to action made in the name of the preservation of the fundamental fairness of our system of procedure.