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Articles 1 - 30 of 33
Full-Text Articles in Law
Waiving Goodbye To Arbitration: Factoring Prejudice When A Party Delays Assertion Of Its Contractual Right To Arbitrate: Elliot V. Kb Home N.C., Inc., Kristen Sanocki
Waiving Goodbye To Arbitration: Factoring Prejudice When A Party Delays Assertion Of Its Contractual Right To Arbitrate: Elliot V. Kb Home N.C., Inc., Kristen Sanocki
Journal of Dispute Resolution
This note addresses the lawsuit described above, Elliott v. KB Home N.C., Inc., concerning whether KB Home waived its contractual right to arbitration by waiting three years to assert that right, which ultimately prejudiced a class of plaintiffs pursuing litigation against it. After examining how North Carolina courts decide whether to compel arbitration, this note will analyze the four-factor test North Carolina courts use to determine whether a party has sat on its right to arbitrate for too long, subjecting itself to waiver of arbitration. Finally, this note contends that North Carolina's four-factor test, as opposed to a bright-line rule, …
Correcting A Flaw In The Arbitration Fairness Act, Imre Stephen Szalai
Correcting A Flaw In The Arbitration Fairness Act, Imre Stephen Szalai
Journal of Dispute Resolution
The proposed Arbitration Fairness Act of 2013 will ban courts from enforcing arbitration agreements in the employment and consumer contexts. This law will protect America's employees and consumers by keeping the courthouse door open to critical civil rights, employment, and consumer protection litigation. However, the proposed Arbitration Fairness Act suffers from a subtle flaw: it is uncertain whether the law will apply to the states. This flaw, which arises from one of the greatest constitutional errors the Supreme Court has ever made, must be corrected in order to provide the broadest protection to millions of American employees and consumers, and …
When Regulations And Arbitration Awards Collide: Potential Difficulties For Arbitrators And Parties: Bangor Gas Co., Llc V. H.Q. Energy Serv. U.S. Inc., Greg Mitchell
Journal of Dispute Resolution
Many commercial transactions are complex. The increasing presence of both arbitration and administrative regulations are part of what creates this complexity. It is thus possible that parties to a commercial transaction will find themselves in arbitration over a dispute involving regulations. This note will explore the potential difficulties parties and arbitrators face when arbitration awards and regulations collide. The difficulties for parties include grounds for vacatur that are either nonexistent or hard to meet, and potentially being forced to choose between violating a regulation or not complying with the award. Additionally, arbitrators face difficulties in fashioning awards that comply with …
Is The Antidiscrimination Project Being Ended?, Michael J. Zimmer
Is The Antidiscrimination Project Being Ended?, Michael J. Zimmer
Indiana Journal of Law and Social Equality
No abstract provided.
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 …
Concepcion's Pro-Defendant Biasing Of The Arbitration Process: The Class Counsel Solution, David Korn, David Rosenberg
Concepcion's Pro-Defendant Biasing Of The Arbitration Process: The Class Counsel Solution, David Korn, David Rosenberg
University of Michigan Journal of Law Reform
By mandating that numerous plaintiffs litigate their common question claims separately in individual arbitrations rather than jointly in class action arbitrations, the Supreme Court in AT&T Mobility LLC v. Concepcion entrenched a potent structural and systemic bias in favor of defendants. The bias arises from the parties' divergent stakes in the outcome of the common question litigation in individual arbitrations: each plaintiff will only invest to maximize the value of his or her own claim, but the defendant has an incentive to protect its entire exposure and thus will have a classwide incentive to invest more in contesting common questions. …
Stop! In The Name Of Ethics, Before You Break My Bank Account: The "Conflicting" Rights Guaranteed To Parties In International Arbitration By Hrvatska V. Slovenia And Rompetrol V. Romania, And Their Potential As Tactical Weapons, Misbah Farid
University of Miami International and Comparative Law Review
International arbitration offers many rights, such as the right to counsel of choice and the right to an independent and impartial arbitration panel and proceeding. However, these guarantees, while they ensure the rights of parties and allow international arbitration to be a viable dispute resolution forum, can also be used as weapons. The viability of these rights as weapons is what reconciles the seemingly conflicting cases of Hrvatska v. Slovenia and Rompetrol v. Romania. Hrvatska sets forth an arbitration tribunal's inherent right to ensure and regulate the proceedings so as to guarantee the rights offered by international arbitration, while …
Adapting Alternate Dispute Resolution For Use In Administrative Proceedings, Victor Lawrence
Adapting Alternate Dispute Resolution For Use In Administrative Proceedings, Victor Lawrence
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Managed Care Grievance Procedures: The Dilemma And The Cure , Joyce Krutick Craig
Managed Care Grievance Procedures: The Dilemma And The Cure , Joyce Krutick Craig
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
The Politics Of International Arbitration And Adjudication, Stephen E. Gent
The Politics Of International Arbitration And Adjudication, Stephen E. Gent
Penn State Journal of Law & International Affairs
Arbitration and adjudication have proven to be effective means of producing long-lasting settlements on contentious issues, but states are generally reluctant to use such legal forms of dispute resolution, especially in resolving issues of national security. To understand when policymakers can and should promote the use of legal mechanisms, they need to understand the political reasons behind the reluctance of states to use these forums. This essay identifies five factors that significantly influence the willingness of states to relinquish decision control and pursue arbitration or adjudication: third-party bias, salience, uncertainty, bargaining power, and armed conflict. To promote the use of …
It's Time For An Alternative Dispute Resolution Procedure, S. James Rosenfeld
It's Time For An Alternative Dispute Resolution Procedure, S. James Rosenfeld
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
A Substantive Right To Class Proceedings: The False Conflict Between The Faa And Nlra, Michael D. Schwartz
A Substantive Right To Class Proceedings: The False Conflict Between The Faa And Nlra, Michael D. Schwartz
Fordham Law Review
In recent decades, the U.S. Supreme Court’s Federal Arbitration Act jurisprudence has greatly expanded the scope of enforceable arbitration agreements. In AT&T Mobility LLC v. Concepcion, decided in 2011, the Court held that a class arbitration waiver in a consumer contract was enforceable, despite state law to the contrary. In January 2012, the National Labor Relations Board ruled that, despite the Court’s holding in Concepcion, class waivers in employment arbitration agreements are unenforceable due to employees’ right under the National Labor Relations Act to engage in concerted activity. However, nearly all federal and state courts that have subsequently …
What The Awards Tell Us About Labor Arbitration Of Employment Discrimination Claims, Ariana R. Levinson
What The Awards Tell Us About Labor Arbitration Of Employment Discrimination Claims, Ariana R. Levinson
University of Michigan Journal of Law Reform
This Article contributes to the debate over mandatory arbitration of employment-discrimination claims in the unionized sector. In light of the proposed prohibition on union waivers in the Arbitration Fairness Act, this debate has significant practical implications. Fundamentally, the Article is about access to justice. It examines 160 labor arbitration opinions and awards in employment-discrimination cases. The author concludes that labor arbitration is a forum in which employment-discrimination claims can be-and, in some cases, are-successfully resolved. Based upon close examination of the opinions and awards, the Article recommends legislative improvements in certain cases targeting statutes of limitations, compulsory process, remedies, class …
Enjoining Politically Motivated Strikes In Federal Courts: The Jacksonville Bulk Terminals Case, Mark A. Ozzello
Enjoining Politically Motivated Strikes In Federal Courts: The Jacksonville Bulk Terminals Case, Mark A. Ozzello
Pepperdine Law Review
The United States Supreme Court, in Jacksonville Bulk Terminals, Inc. v. International Longshoremen's Association, acknowledged that a work stoppage entirely motivated by political goals constitutes a "labor dispute" within the Norris-La Guardia Act which is prohibited from injunctive relief by a federal court. In so ruling, the Supreme Court found the Boys Markets, Inc. v. Retail Clerks Union and Buffalo Forge Co. v. United Steelworkers of America, AFL-CIO exceptions, which allow an injunction to issue pending arbitration in situations where the dispute underlying the work stoppage is arbitrable, to be inapplicable to the no-strike clause in the collective-bargaining agreement scrutinized. …
The Perfect Circle: Arbitration's Favors Become Its Flaws In An Era Of Nationalization And Regulation, Kimberly R. Wagner
The Perfect Circle: Arbitration's Favors Become Its Flaws In An Era Of Nationalization And Regulation, Kimberly R. Wagner
Pepperdine Dispute Resolution Law Journal
The article presents information on the evolution of international commercial arbitration and viability of alternative dispute resolution (ADR) process. It briefly discusses the importance of international commercial arbitration and several attributed reasons for its decline such as Americanization, nationalization, and overregulation. It reflects mediation as the replacement for arbitration, and compares the advantages of mediation and arbitration.
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.
Egaps - Arbitration Plans For Nonunion Employees , Charles J. Morris
Egaps - Arbitration Plans For Nonunion Employees , Charles J. Morris
Pepperdine Law Review
No abstract provided.
Federal Sector Labor Arbitration: Differences, Problems, Cures , Dennis R. Nolan
Federal Sector Labor Arbitration: Differences, Problems, Cures , Dennis R. Nolan
Pepperdine Law Review
No abstract provided.
The Arbitration Of Federal Domestic Antitrust Claims: How Safe Is The American Safety Doctrine?, Bruce R. Braun
The Arbitration Of Federal Domestic Antitrust Claims: How Safe Is The American Safety Doctrine?, Bruce R. Braun
Pepperdine Law Review
No abstract provided.
Negotiating Better Superfund Settlements: Prospects And Protocols, Scott A. Cassel
Negotiating Better Superfund Settlements: Prospects And Protocols, Scott A. Cassel
Pepperdine Law Review
No abstract provided.
The Unjustified Furor Over Securities Arbitration, Gilbert R. Serota
The Unjustified Furor Over Securities Arbitration, Gilbert R. Serota
Pepperdine Law Review
No abstract provided.
Implementation Of California's Dispute Resolution Programs Act: A State-Local Partnership, Mary-Alice Coleman
Implementation Of California's Dispute Resolution Programs Act: A State-Local Partnership, Mary-Alice Coleman
Pepperdine Law Review
No abstract provided.
Using Court-Annexed Arbitration To Reduce Litigant Costs And To Increase The Pace Of Litigation, John L. Barkai, Gene Kassebaum
Using Court-Annexed Arbitration To Reduce Litigant Costs And To Increase The Pace Of Litigation, John L. Barkai, Gene Kassebaum
Pepperdine Law Review
No abstract provided.
Introduction: Second Symposium Issue On Alternative Dispute Resolution , L. Randolph Lowry
Introduction: Second Symposium Issue On Alternative Dispute Resolution , L. Randolph Lowry
Pepperdine Law Review
No abstract provided.
Arbitration Clauses In Fee Retainer Agreements., Chrissy L. Schwennsen
Arbitration Clauses In Fee Retainer Agreements., Chrissy L. Schwennsen
St. Mary's Journal on Legal Malpractice & Ethics
Due to the variety of approaches jurisdictions employ when determining the legal ramifications of arbitration clauses in fee retainer agreements, it’s best to include an explanation of the legal consequences of arbitration in the agreements. The attorney can, and should, fully explain the potential benefits of arbitration to clients. State courts take various viewpoints on the issue, and most stand contrary to the position of the American Bar Association (ABA) and state ethics committees on the subject. Consequently, attorneys must disclose truthful and accurate information regarding arbitration agreements when engaged in multijurisdictional practice in order to ensure protection from malpractice …
Speech, Brian S. Harvey
Defining The Scope Of Indirect Expropriation For International Investments , Peter D. Isakoff
Defining The Scope Of Indirect Expropriation For International Investments , Peter D. Isakoff
Global Business Law Review
At present, arbitral tribunals have applied a variety of standards to ascertain when indirect expropriation occurs. This article examines the complexities and ambiguities of current indirect expropriation standards and argues that a clear, uniform standard is needed to identify indirect expropriation. Ultimately, this article proposes that arbitral tribunals should only find that indirect expropriation occurs when (i) a state takes actions that substantially deprive the foreign investor of the profitability of its investment, and (ii) the state action was not reasonably predictable to the investor. Part I of this article provides a summary of the current state of expropriation doctrine. …
Contractual Expansion Of Judicial Review Of Arbitration Awards In Missouri After Hall Street And Cable Connection, Benjamin A. Griffith
Contractual Expansion Of Judicial Review Of Arbitration Awards In Missouri After Hall Street And Cable Connection, Benjamin A. Griffith
Saint Louis University Law Journal
No abstract provided.
From Lord Coke To Internet Privacy: The Past, Present, And Future Of The Law Of Electronic Contracting, Juliet M. Moringiello, William L. Reynolds
From Lord Coke To Internet Privacy: The Past, Present, And Future Of The Law Of Electronic Contracting, Juliet M. Moringiello, William L. Reynolds
Maryland Law Review
No abstract provided.
Employment Law And Social Equality, Samuel R. Bagenstos
Employment Law And Social Equality, Samuel R. Bagenstos
Michigan Law Review
What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation. Against both of these positions, this Article argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. This Article argues that individual employment law, like employment discrimination law, is justified as preventing employers from contributing to or …