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Ultimately the Supreme Court is going to have to decide this one. The score is now 5-5 with one abstaining.
The circuits are now split on the issue, and SCOTUS will likely have to settle the dispute.
Given the strong pro-arbitration stance of the Court, it is difficult to see the current Court restricting arbitral discretion, but there has been a growing backlash against the pro-arbitral jurisprudence of the last 30 years.
Current circuit status is:
"Who cares about the law? The arbitrator is God."--
"The arbitrator may be God, but I'm a Judge and so I am pulling rank."--
"SCOTUS created this mess, and we're staying out of it."--
|Wachovia Securities v Brand OPINION 16Feb2012.pdf||86.14 KB|