In April 2011, the United States Supreme Court issued a decision that federal law preempted application of general law regarding the enforceability of arbitration clauses in contracts. The high court reasoned that application of state general law on contracts, if implemented to deny enforceability of arbitration provisions, would undermine the purpose of the Federal Arbitration Act. But, the consequences of this and similar Supreme Court holdings appears to limit litigation and thereby deny to the lower courts power to exercise judicial review of Constitutional issues often involved in these types of cases. Recent courts have chafed under high court opinions which curtail review jurisdiction and have devised legal rulings to avoid the full blow of that decision. Lower courts have addressed various issues ranging from Constitutional concerns to procedural inquiries often supporting a need for Congressional intervention. This paper will discuss the following: the origin and power of judicial review of governmental conduct in violation of constitutional law; selected Supreme Court decisions utilizing judicial review power regarding governmental conduct; the recognized checks on use of the power; recent decisions from lower courts, and proposed legislation.
|Journal||Mustang Journals, Inc.|
|Issue number||Spring, 2013|
|State||Published - May 2013|