Law, College of
Nebraska Law Bulletin (Selected Issues)
Date of this Version
10-14-2009
Document Type
Article
Citation
Nebraska Law Bulletin (October 14, 2009)
Abstract
This commentary argues that the Nebraska Supreme Court erred in applying the narrow public policy exception to the enforcement of arbitration awards. In doing so, the court relied on a crafty conceptualization and organization of supposed public policy. It was only by this judicial sleight of hand that the court could have argued that it was staying true to the Supreme Court’s case law on the exception. Unfortunately, this sleight of hand transforms what is supposedly a narrow exception into one that is potentially vast. This commentary argues that the solution to this problem can be found in Justice Scalia’s concurring opinion in Eastern Associated Coal Corp. v. United Mine Workers, District 17 and argues that courts should adopt his theory for determining when an arbitration award is contrary to public policy. That is, courts should only find an arbitration agreement contrary to public policy when it violates positive law. By hewing closely to this standard, the public policy exception will remain the narrow exception that it should be.
This commentary contains three sections. The first explains the facts of State v. Henderson as well as the court’s decision and the dissenting opinion. The second summarizes the case law establishing the public policy exception. The third argues that the Nebraska Supreme Court misapplied the public policy exception and that courts should hold that only awards that violate positive law are contrary to established public policy.
Comments
Copyright 2009, the author