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Boba Fett, Bounty Hunters, And The Supreme Court’S Viking River Decision: A New Hope, Imre S. Szalai
Boba Fett, Bounty Hunters, And The Supreme Court’S Viking River Decision: A New Hope, Imre S. Szalai
Washington and Lee Law Review Online
The United States Supreme Court recently issued a fractured decision in Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (June 15, 2022), a classic David v. Goliath clash between a worker and employer. Can arbitration agreements be used to eliminate group or representative actions brought against employers, where the plaintiff worker is serving as a bounty hunter for the State? Although the majority clearly holds that a worker’s individual claims must be sent to arbitration pursuant to a predispute arbitration agreement, the splintered opinions leave some uncertainty regarding what happens to the representative claims of the other …
California: A New Golden Hub Of International Commercial Arbitration?, Tiffany Luu
California: A New Golden Hub Of International Commercial Arbitration?, Tiffany Luu
Pepperdine Dispute Resolution Law Journal
This article will explore 2018 SB 766’s impact on International Commercial Arbitration (ICA) within California and will propose initiatives to help California ascend in the list as a preferred seat of ICA. Part II provides the background context of ICA and its use in California. Part III explores the benefits of increasing the use of ICAs seated in California. Part IV suggests ways lawyers and the legal arbitration community can assist in making California a more attractive seat of ICA among international and domestic jurisdictions. Finally, Part V concludes by describing the effect that SB 766 and proposed initiatives will …
Houston, We Have An Arbitration: International Arbitration’S Role In Resolving Commercial Aerospace Disputes, Carson W. Bennett
Houston, We Have An Arbitration: International Arbitration’S Role In Resolving Commercial Aerospace Disputes, Carson W. Bennett
Pepperdine Dispute Resolution Law Journal
This article explores the complimentary nature between the burgeoning private aerospace industry and international arbitration, as well as detailing how it could be advantageous to resolve these aerospace disputes in California. Part II outlines the new space race. It begins with the Ansari XPrize and follows some of the industry’s most significant developments. Part III explores the benefits of arbitration and how the characteristics of international arbitral proceedings cater to the common concerns of aerospace companies. Part IV catalogues the initiatives arbitral institutions have taken to customize an arbitration for aerospace disputes. This article argues that a specialized institution could …
The Metastasization Of Mandatory Arbitration, Alexander J.S. Colvin
The Metastasization Of Mandatory Arbitration, Alexander J.S. Colvin
Chicago-Kent Law Review
Mandatory arbitration procedures have expanded to become a common feature of American employment relations. This article presents the results of a new original survey examining the extent of mandatory arbitration, where it is most commonly used, and which employees it is most likely to affect. Overall, 53.9 percent of private sector business establishments, representing 56.2 percent of nonunion employees, have mandatory arbitration procedures. Larger employers are more likely to have adopted mandatory arbitration, as are workplaces with lower paid employees. Mandatory arbitration is particularly common in California, North Carolina, and Texas, but is widespread nationwide. Class action waivers are included …
Uber Hitches A Ride With Arbitration: How Pro-Arbitration Attitudes And Uber Will Prevail In California And The Ninth Circuit, Neil Eddington
Uber Hitches A Ride With Arbitration: How Pro-Arbitration Attitudes And Uber Will Prevail In California And The Ninth Circuit, Neil Eddington
Pepperdine Dispute Resolution Law Journal
Part I of this article will introduce Uber and describe how the sharing economy functions. This section will explain Uber’s current conflict with their drivers regarding arbitration agreements and why the stakes are so high. Part II will explore the FAA—its history, original legislative intent and purpose—in order to provide a baseline from which to contrast its current broad application. Part III will highlight Supreme Court jurisprudence on arbitration to illustrate how the FAA is now expansively interpreted contrary to its original limited scope. This Part will culminate in an examination of the Concepcion and American Express majority and dissenting …
Mediator Or Judge?: California’S Mandatory Mediation Statute In Child Custody Disputes, Sofya Perelshteyn
Mediator Or Judge?: California’S Mandatory Mediation Statute In Child Custody Disputes, Sofya Perelshteyn
Pepperdine Dispute Resolution Law Journal
This article will argue that mandatory mediation offers important benefits, including lightening the overloaded court system and capitalizing on the flexibility and personalization of mediation in certain kinds of disputes. This article will also discuss how allowing the mediator to provide recommendations to the judge after unsuccessful negotiations can shatter the basic tenets of mediation and create an altogether different process for the dispute. Furthermore, it will argue that California’s mandatory mediation statute creates a system more akin to litigation, since the parties are presenting their case to a mediator who wears the hat of both mediator and judge. In …
Legal Uncertainty And Aberrant Contracts: The Choice Of Law Clause, William J. Woodward Jr.
Legal Uncertainty And Aberrant Contracts: The Choice Of Law Clause, William J. Woodward Jr.
Chicago-Kent Law Review
Legal uncertainty about the applicability of local consumer protection can destroy a consumer’s claim or defense within the consumer arbitration environment. What is worse, because the consumer arbitration system cannot accommodate either legal complexity or legal uncertainty, the tendency will be to resolve cases in the way the consumer’s form contract dictates, that is, in favor of the drafter. To demonstrate this effect and advocate statutory change, this article focuses on fee-shifting statutes in California and several other states. These statutes convert very common one-way fee-shifting terms (consumer pays business’s attorneys fees if business wins but not the other way …
Public Injunctions As A Way Around Concepcion: California's Continued Resistance To The Federal Arbitration Act, Elizabeth Kiesewetter
Public Injunctions As A Way Around Concepcion: California's Continued Resistance To The Federal Arbitration Act, Elizabeth Kiesewetter
Journal of Dispute Resolution
This note outlines the general applicability of the FAA and preemption. Next, it examines the Supreme Court's precedent concerning preemption, as it relates to class actions and public policy. This note argues that California's public injunction exception does prohibit outright the arbitration of a particular type of claim and is, thus, preempted by the FAA. The Supreme Court will likely see this rule as being at odds with the FAA and as another repudiation from the California courts of their long-standing FAA jurisprudence. Finally, this note argues that, despite the likely preemption of California's rule, there are strong policy arguments …
To Skin A Cat: Qui Tam Actions As A State Legislative Response To Concepcion, Janet Cooper Alexander
To Skin A Cat: Qui Tam Actions As A State Legislative Response To Concepcion, Janet Cooper Alexander
University of Michigan Journal of Law Reform
The Supreme Court's decision in Concepcion is widely regarded as heralding the demise of small-claims class actions whenever contracts of adhesion are involved in the transaction-which means for virtually all consumer and employment claims. Amending the Federal Arbitration Act to overturn Concepcion would be a relatively simple exercise in legislative drafting, but in the current political climate such efforts are unlikely to succeed. Thus far, proposed federal corrective legislation has failed to pass, and federal agency regulation of class waivers has been lacking. State legislatures might have the political ability to pass corrective legislation, but virtually all state limitations on …
Joint Custody As A Parenting Alternative, Billy G. Mills, Steven P. Belzer
Joint Custody As A Parenting Alternative, Billy G. Mills, Steven P. Belzer
Pepperdine Law Review
Joint custody of children has been a recently accepted alternative to the traditional child custody/visitation orders that usually follow dissolution proceedings. In 1980, California became one of the first states to provide, by statute, a presumption in favor of an award of joint custody to the parents. The authors present the legislative history of this joint custody statute and synthesize the various views that have been expressed on the subject of joint custody. Also presented is a discussion of the legislative intent behind the statute and whether the current law is the most effective means of protecting the best interests …
Mediation Confidentiality: For California Litigants, Why Should Mediation Confidentiality Be A Function Of The Court In Which The Litigation Is Pending?, Rebecca Callahan
Mediation Confidentiality: For California Litigants, Why Should Mediation Confidentiality Be A Function Of The Court In Which The Litigation Is Pending?, Rebecca Callahan
Pepperdine Dispute Resolution Law Journal
The article presents information on mediation confidentiality. Confidentiality protections are available to California litigants depending on whether the litigants are in state or federal court. It depicts that California courts provide protection only when disputants utilize mediation for resolving their differences and also focuses on the evidence exclusion provision in which the privilege held by participant acts as bar to compel discovery without everyone's consent.
California Code Of Civil Procedure Sections 877, 877.5 And 877.6: The Settlement Game In The Ballpark That Tech-Bilt, Emery J. Mishky, Robert Tessier, Patrick G. Vastano
California Code Of Civil Procedure Sections 877, 877.5 And 877.6: The Settlement Game In The Ballpark That Tech-Bilt, Emery J. Mishky, Robert Tessier, Patrick G. Vastano
Pepperdine Law Review
No abstract provided.
Institutionalization Of Alternative Dispute Resolution By The State Of California , Bruce Monroe
Institutionalization Of Alternative Dispute Resolution By The State Of California , Bruce Monroe
Pepperdine Law Review
No abstract provided.
Recent Developments In Alternative Dispute Resolution , Lee R. Petillon
Recent Developments In Alternative Dispute Resolution , Lee R. Petillon
Pepperdine Law Review
No abstract provided.
The Private Enforcement Of Public Laws In Armendariz V. Foundation Health Psychcare Services, Jennifer Lafond
The Private Enforcement Of Public Laws In Armendariz V. Foundation Health Psychcare Services, Jennifer Lafond
Pepperdine Law Review
No abstract provided.
Eliminating The Mandatory Trade-Off: Should Employees Have The Right To Choose Arbitration ?, Michael Peabody
Eliminating The Mandatory Trade-Off: Should Employees Have The Right To Choose Arbitration ?, Michael Peabody
Pepperdine Dispute Resolution Law Journal
As more employers include mandatory arbitration provisions in their employment contracts, policy-makers are becoming concerned that employees are being forced to trade their civil and statutory rights for their jobs. The California Legislature is considering legislation designed to combat this tendency and to provide legal protection for employees who might otherwise be forced to waive the right for redress of grievances, legal protections against discrimination, and other rights. Although the legislation was designed to protect the constitutional rights of employees, there are legal considerations and policy concerns that challenge the viability of this type of legislation. The primary question is …
Mediation Of Proposition 187: Creative Solution To An Old Problem? Or Quiet Death For Initiatives?, Nicole E. Lucy
Mediation Of Proposition 187: Creative Solution To An Old Problem? Or Quiet Death For Initiatives?, Nicole E. Lucy
Pepperdine Dispute Resolution Law Journal
The initiative Proposition 187 has been a catalyst for change. Supporters heralded it as the solution to "Save Our State" from the ills of illegal immigration. Those who opposed it, used Proposition 187 as a battle cry to mobilize a disenfranchised minority. Irrespective of ideology, Proposition 187 ended as no one could have predicted in November 1994 when it passed, 59% to 41%. When Governor Gray Davis inherited the Proposition 187 appeal from former Governor Pete Wilson, Governor Davis took the unprecedented step of seeking to resolve the conflict through mediation rather than actively defending Proposition 187 on appeal to …
Report To Law Revision Commission Regarding Recommendations For Changes To California Arbitration Law , Roger Alford
Report To Law Revision Commission Regarding Recommendations For Changes To California Arbitration Law , Roger Alford
Pepperdine Dispute Resolution Law Journal
In this Article, Professor Alford discusses a report by the Law Revision Commission recommending that certain changes be made to arbitration law in California. It begins by outlining the history of arbitration in California, from its 1961 adoption of the Uniform Arbitration Act, to the 1988 enactment of an international arbitration statute modeled on the UNCITRAL Model Law, to the 1989 enactment of Section 1281.8, which allowed courts to grants provisions remedies to parties involved in arbitration proceedings. It also provides a general overview of the purpose and practice of arbitration law. Then, it provides a chapter-by-chapter analysis the Law …
California's Opportunity To Create Historical Precedent Regarding A Mediated Settlement Agreement's Effect On Mediation Confidentiality And Arbitrability , Susan Nauss Exon
California's Opportunity To Create Historical Precedent Regarding A Mediated Settlement Agreement's Effect On Mediation Confidentiality And Arbitrability , Susan Nauss Exon
Pepperdine Dispute Resolution Law Journal
Confidentiality serves as a cornerstone of mediation. The public policy underlying confidentiality is the promotion of candid communications between disputing parties. As explained in this article, mediation confidentiality affects more than just communication. It affects other important mediation values, such as party self-determination and mediator impartiality. Mediation confidentiality affects parties' ability to enforce their mediated agreements. Finally, confidentiality affects multiple dispute resolution processes, as seen by the interrelated nature of mediation and arbitration in the seminal case of Fair v. Bakhtiari.
When Mediation Confidentiality And Substantive Law Clash: An Inquiry Into The Impact Of In Re Marriage Of Kieturakis On California's Confidentiality Law, Annalisa L. H. Peterson
When Mediation Confidentiality And Substantive Law Clash: An Inquiry Into The Impact Of In Re Marriage Of Kieturakis On California's Confidentiality Law, Annalisa L. H. Peterson
Pepperdine Dispute Resolution Law Journal
Mediation confidentiality laws play a critical role in allowing mediation to remain a viable process for parties to discuss the issues involved in their dispute, exchange information, and potentially reach a settlement before trial. Without certain guarantees as to the confidential nature of such a meeting, no savvy party or attorney would agree to provide information that could later be turned against him at trial, and many valuable opportunities (as measured in time, cost, reputation, relationship, etc.) for resolution would be lost. However, some parties to mediated disputes either do not reach resolution, or later contest a mediated agreement in …
No Signature Needed: The Supreme Court Of California Settles Precedent And Furthers The Goals Of The Medical Injury Compensation Reform Act: Ruiz V. Podolsky, Meghan L. Travis
No Signature Needed: The Supreme Court Of California Settles Precedent And Furthers The Goals Of The Medical Injury Compensation Reform Act: Ruiz V. Podolsky, Meghan L. Travis
Journal of Dispute Resolution
In Ruiz v. Podolsky,2 the California Supreme Court ended the strife surrounding wrongful death claims when Rafael Ruiz (Ruiz), the decedent, executed a binding arbitration agreement.3 The court was able to soundly support its decision on applicable legislation, case law and public policy after weaving its way through a turbulent mish-mash of contradictory precedent. This note will discuss: (1) California's attempt to decrease the cost of medical malpractice claims, (2) the ramifications of Ruiz's allowing arbitration agreements to bind heirs, and (3) the differing approaches states have taken toward the application of binding arbitration agreements to beneficiaries
No Exceptions: How The Legitimate Business Justification For Unconscionability Only Further Demonstrates California Courts' Disdain For Arbitration Agreements, Thomas H. Riske
Journal of Dispute Resolution
In Davis v. O'Melveny & Myers, the Ninth Circuit Court of Appeals considered whether an arbitration agreement adopted by a law firm and distributed to its employees was enforceable. When interpreting an arbitration agreement, how the contract doctrine of unconscionability should be applied by state courts, is an essential element of this case. While the Federal Arbitration Act ("FAA") has been interpreted to preempt any state law in conflict with it, state laws governing the necessary foundation to revoke a contract remain unaffected. In considering these principles, state courts have applied the doctrine of unconscionability to arbitration agreements in the …
Sacrificing Settlement Agreements In The Name Of Mediation Confidentiality: The California Supreme Court's Narrow Holding Has Harsh Consequence, Laura J. Bettenhausen
Sacrificing Settlement Agreements In The Name Of Mediation Confidentiality: The California Supreme Court's Narrow Holding Has Harsh Consequence, Laura J. Bettenhausen
Journal of Dispute Resolution
Confidentiality is regarded as one of the primary benefits of mediation. For parties who wish to avoid the public eye, mediation is often preferable to court. However, when parties reach some form of a settlement agreement during mediation, and subsequently disagree as to the terms of that agreement, the parties may find themselves in court. In court, the issue of whether the settlement agreement is admissible arises. In Fair v. Bakhtiari, the California Supreme Court addressed the question of whether an arbitration provision listed in a settlement agreement renders the agreement admissible under the California Evidence Code. The court emphasized …
California's Unique Approach To Arbitration: Why This Road Less Traveled Will Make All The Difference On The Issue Of Preemption Under The Federal Arbitration Act, Michael G. Mcguiness, Adam J. Karr
California's Unique Approach To Arbitration: Why This Road Less Traveled Will Make All The Difference On The Issue Of Preemption Under The Federal Arbitration Act, Michael G. Mcguiness, Adam J. Karr
Journal of Dispute Resolution
We begin this article by framing the issue in simple terms. The statute itself is clear. The FAA contains a "savings clause" that provides that arbitration agreements shall be "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.", By its terms, the FAA permits courts to refuse to enforce arbitration agreements if the agreement is invalid under state laws that "arose to govern issues concerning the validity, revocability, and enforceability of contracts generally."
New Era Of Disclosure: California Judicial Council Enacts Arbitrator Ethics Standards - Ethics Standards For Neutral Arbitrators In Contractual Arbitration, A, Keisha I. Patrick
New Era Of Disclosure: California Judicial Council Enacts Arbitrator Ethics Standards - Ethics Standards For Neutral Arbitrators In Contractual Arbitration, A, Keisha I. Patrick
Journal of Dispute Resolution
Although the current CJC ethics rules consist of seventeen standards and several subsections "intended to guide the conduct of arbitrators, '17 this Note will focus only on the disclosure requirements. The Note will also compare the CJC standards with disclosure rules that provider organizations have previously enacted.
Mediator's Privilege: Can A Mediator Be Compelled To Testify In A Civil Case - California Privilege Law Says Yes - Olam V. Congress Mortgage Co., The, Jennifer C. Bailey
Mediator's Privilege: Can A Mediator Be Compelled To Testify In A Civil Case - California Privilege Law Says Yes - Olam V. Congress Mortgage Co., The, Jennifer C. Bailey
Journal of Dispute Resolution
In the present case, Olain v. Congress, the United States District Court for the Northern District of California has, in a precedent-setting opinion, forced a mediator to testify in a subsequent civil procedure. 9 This Note will examine two recurring issues regarding mediation: first, the appropriate law to be applied when a case sits in federal court; and second, the history of the mediation privilege, the present state of the mediation privilege within the federal and state courts, and the consequences of the instant case.
Finding The Parameters: The Scope Of Arbitration Agreements In Medical Service Contracts In California - Pietrelli V. Peacock, Mark Riley Kroeker
Finding The Parameters: The Scope Of Arbitration Agreements In Medical Service Contracts In California - Pietrelli V. Peacock, Mark Riley Kroeker
Journal of Dispute Resolution
There is perhaps no better indicator of the general perception of "crisis" in the American medical system than the lavish attention given President Clinton's health care reform initiatives in the media.2 In the 1970s, the frequency of medical malpractice claims and the cost of malpractice insurance, two sources of this perceived crisis, came into sharp focus.3 Experiencing a decline in profits as a result of increased malpractice litigation, many insurers began refusing to provide coverage or demanding high premium increases.4 This created a problem in malpractice insurance availability to health care providers.5 Health care providers, insurers, and state legislatures responded …
Labor Artibitration In Public Agencies: An Unconstitutional Delegation Of Power Or The Waking Of A Sleeping Giant - United Transportation Union V. Southern California Rapid Transit, Karen M. Speiser
Journal of Dispute Resolution
The use of arbitration to resolve labor disputes has become an irreplaceable method of dispute resolution in private enterprises and corporations all over the United States. Arbitration's popularity has come about partially from a realization of the utility of arbitration and partially from government pressure through the enactment of federal statutes. However, the government itself has resisted the imposition of arbitration to resolve disputes between its agencies and their employees. This Note will address some of the issues involved in private arbitration of public agency labor disputes.
Less Law Than Meets The Eye, David D. Friedman
Less Law Than Meets The Eye, David D. Friedman
Michigan Law Review
A Review of Order Without Law: How Neighbors Settle Disputes by Robert C. Ellickson