Through Fault of Their Own—Applying Bonner Mall's Extraordinary Circumstances Test to Heightened Standard of Review Clauses

Abstract

Since 2001, the federal circuit courts of appeals have remained split on the propriety of enforcing heightened standard of review clauses contained in arbitration agreements governed by the Federal Arbitration Act (the "FAA"). After reviewing the history of arbitral awards and the text, structure, and legislative history of the FAA as well as the U.S. Supreme Court's interpretation of the FAA, this Note proposes a resolution to the heightened-review circuit split, which is consistent with the FAA's proarbitration policy and U.S. Supreme Court precedent. This Note's proposed resolution would require courts to reject heightened-review clauses through application of the extraordinary circumstances test that the U.S. Supreme Court developed hi U.S. Bancorp Mortgage Co. v Bonner Mall Partnership. This Note argues that the adoption of Bonner Malts extraordinary circumstances test will protect judicial integrity and preserve arbitration as a viable litigation alternative for the entire legal conununity.