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Full-Text Articles in Law
The Disappearing Opt-Out Right In Punitive Damages Class Actions, Richard Frankel
The Disappearing Opt-Out Right In Punitive Damages Class Actions, Richard Frankel
Richard H. Frankel
One of the most pressing issues in punitive damages law today is how to protect defendants from multiple punitive damages awards for a single course of conduct, while still ensuring that wronged plaintiffs can recover punitive damages. Numerous commentators have proposed non-opt-out class actions for punitive damages as the best solution to the multiple punishment problem because they subject defendants to a single collective punitive damages award that can be distributed equitably across all injured plaintiffs. This Article takes a contrary view. It argues that mandatory classes improperly deprive class plaintiffs of their right to opt out and pursue their …
Sailing A Sea Of Doubt: A Critique Of The Rule Of Reason In U.S. Antitrust Law, Jesse W. Markham Jr.
Sailing A Sea Of Doubt: A Critique Of The Rule Of Reason In U.S. Antitrust Law, Jesse W. Markham Jr.
Jesse Markham
The purpose of the article is to offer a critique of the rule of reason, tracing its disintegration from its original articulation 100 years ago in Standard Oil Co. v. United States, 221 U.S. 1, 60 (1911). The article then describes a construct for restoring transparency and content to the rule of reason. The rule of reason is the default standard for assessing restraints under the Sherman Act. The role for the rule of reason has expanded in recent years as the Supreme Court has reversed a number of per se rules, thus relegating additional categories of restraints to the …
Revelation And Reaction: The Struggle To Shape American Arbitration, Thomas J. Stipanowich
Revelation And Reaction: The Struggle To Shape American Arbitration, Thomas J. Stipanowich
Thomas J. Stipanowich
In this article, Professor Stipanowich explores recent decisions by the U.S. Supreme Court and the implications for the respective domains of courts of law and arbitration tribunals regarding so-called “gateway” determinations surrounding the enforcement of arbitration agreements and the contracts of which they are a part. The decisions address the complex interplay between federal substantive law focusing on questions of arbitrability, a body of law defined and expanded by the Court under the Federal Arbitration Act (FAA), and the law of the states and bring into play competing judicial philosophies of contractual assent and contrasting views about the balance between …
The Third Arbitration Trilogy: Stolt-Nielsen, Rent-A-Center, Concepcion And The Future Of American Arbitration, Thomas J. Stipanowich
The Third Arbitration Trilogy: Stolt-Nielsen, Rent-A-Center, Concepcion And The Future Of American Arbitration, Thomas J. Stipanowich
Thomas J. Stipanowich
For the third time in the modern era, a triad of key Supreme Court decisions represents a milestone in American arbitration. In this highly controversial “Third Arbitration Trilogy,” the U.S. Supreme Court aggressively expands the “revealed” penumbra of substantive arbitration law under the Federal Arbitration Act and shores up the bulwarks of private, binding dispute resolution under standardized contracts of adhesion binding employees and consumers. In Stolt-Nielsen S.A. v. AnimalFeeds International, 130 S. Ct. 1758 (2010), the Court, against the backdrop of an international commercial contract scheme and a unique procedural scenario, draws upon the wellspring of divined “federal substantive …