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Full-Text Articles in Law
Be Careful What You Do Not Ask For: Contracts With The Federal Government For Which Purely Nonmonetary Relief Exists In The Event Of Breach Must Provide For Monetary Damages To Make Them Available To Non-Breaching Private Parties, Matthew W. Cecil
Journal of Dispute Resolution
By further limiting access to one of the only forums in which private parties may seek monetary damages over $10,000 from the federal government, the United States Federal Circuit Court of Appeals in Higbie v. United States1 has ensured non-breaching private parties will not be wholly compensated for their injuries and has undermined the court’s own interest in bolstering mediation.
Get The Best Of Both Worlds: Illusory Arbitration Agreements, Desiree Shay
Get The Best Of Both Worlds: Illusory Arbitration Agreements, Desiree Shay
Journal of Dispute Resolution
This Note addresses the clauses in franchise-franchisee agreements that preserve the right for a franchisor to unilaterally alter the terms of arbitration after the franchise relationship has begun. A majority of courts, applying state contract law, have held that these clauses are unenforceable due to a lack of consideration, making the contract illusory. However, courts still come to different conclusions because each court has to follow state contract law. The United States Supreme Court’s holding on this issue might not be able to have full effect because the Federal Arbitration Act requires that courts rely on state law. The Seventh …
Day's Pyramid Ignores Sturdy Severability Foundation, Builds Off Granite Rock: Day V. Fortune Hi-Tech Marketing, Inc., Wesley K . Dagestad
Day's Pyramid Ignores Sturdy Severability Foundation, Builds Off Granite Rock: Day V. Fortune Hi-Tech Marketing, Inc., Wesley K . Dagestad
Journal of Dispute Resolution
Persons involved in a pyramid scheme are often blind to the overarching pyramid's purpose; similarly, contracting parties may possess little initial knowledge of an agreement's terms in their entirety. Arbitration agreements and other contractual obligations can be hidden in the depths of multiple documents, memorialized through simultaneous agreements incorporating the additional terms by various references. After Day, courts may now be required to dig through countless terms to parties' agreements to determine if a valid contract exists, and if so, which agreement governs the dispute at issue. After sifting through this contractual jungle, courts will be forced to take one …
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, …
New Use Of The Doctrine Of Unconscionability To Invalidate Arbitration Agreements In Consumer Contracts, The Note, Valerie Dixon
New Use Of The Doctrine Of Unconscionability To Invalidate Arbitration Agreements In Consumer Contracts, The Note, Valerie Dixon
Journal of Dispute Resolution
Manfredi v. Blue Cross and Blue Shield suggests that this old judicial hostility is alive and well in Missouri jurisprudence. In an effort to level the playing field between parties of unequal bargaining power, Missouri courts have applied the unconscionability doctrine as a way to sidestep the United States Supreme Court's asserted policy favoring arbitration over litigation.7 This note considers the new approach of Missouri courts in invalidating arbitration agreements through the doctrine of unconscionability in the consumer context.
Missouri Courts Side With Employees Against The Eighth Circuit: Continued Employment Does Not Constitute Acceptance And Consideration For Mandatory Arbitration Agreements: Frye V. Speedway Chevrolet Cadillac, Laura Browne
Journal of Dispute Resolution
The question of whether continued employment constitutes acceptance and consideration for an employment contract, particularly applied to mandatory arbitration clauses, has split the authorities who decide on cases arising out of Missouri. The United States Court of Appeals for the Eighth Circuit, while purporting to apply Missouri law in cases arising out of Missouri, holds that an employee who continues to work for his or her employer after an arbitration program has been implemented is bound by it by the virtue of his or her continued employment. Missouri courts, however, disagree with this interpretation of Missouri law and held in …
Arbitration Clauses In Contracts Of Adhesion Trap Sophisticated Parties Too, Andrea Doneff
Arbitration Clauses In Contracts Of Adhesion Trap Sophisticated Parties Too, Andrea Doneff
Journal of Dispute Resolution
Part II of this Article will provide a survey of the FAA, the cases that have enforced it since its passage in 1925, and the distinctions made by the drafters and the courts. Part III addresses a number of the common themes and limitations raised by cases applying the FAA, including the ability to protect statutory rights, the right to contract and have courts enforce contractual obligations, the need to protect consumers subject to mandatory arbitration clauses, and the need for finality in arbitration. Part IV reviews recent legislative and Supreme Court decisions considering issues regarding sophisticated and unsophisticated parties …
Mistake And Disclosure In A Model Of Two-Sided Informational Inputs, Michael J. Borden
Mistake And Disclosure In A Model Of Two-Sided Informational Inputs, Michael J. Borden
Missouri Law Review
This paper will examine some theoretical aspects of contractual non-disclosure and the related doctrine of unilateral mistake. These two legal rubrics are conceptually similar; each is concerned with the degree to which parties must communicate their understandings about the nature of the contract into which they are about to enter. If one party fails to reveal enough information, the other party may enter into the agreement under a misunderstanding and consequently may attempt to avoid contractual liability on the basis of mistake or on a theory of nondisclosure. The law of contracts clearly attaches a great deal of importance to …
When Contracting Around The Law Will Not Work: The Potential Inability To Expressly Prohibit Punitive Damages In Arbitration, Alexia Norris
When Contracting Around The Law Will Not Work: The Potential Inability To Expressly Prohibit Punitive Damages In Arbitration, Alexia Norris
Journal of Dispute Resolution
Just as the availability of all appropriate remedies is an important part of judicial litigation, the attempt to identify and limit those remedies is an issue in an arbitration proceeding. After the United States Supreme Court's 1995 decision in Mastrobuono v. Shearson Lehman Hutton, Inc., it seemed clear that parties would be allowed to seek punitive damages if an agreement did not expressly prohibit such damages. Even so, parties continue to falter in writing agreements meant to contain the proper language that will succeed in limiting the availability of certain remedies. This is due to the continued confusion over how …
Centuries Of Contract Common Law Can't Be All Wrong: Why The Uma's Exception To Mediation Confidentiality In Enforcement Proceedings Should Be Embraced And Broadened, Peter Robinson
Journal of Dispute Resolution
The National Conference of Commissioners on Uniform State Laws and House of Delegates of the American Bar Association recently approved the Uniform Mediation Act ("UMA") with an eye toward unifying the law of mediation confidentiality in the United States. Soon, numerous states and other organizations will consider modifying statutes, court rules, or professional standards to conform to the UMA. One of the important aspects of mediation confidentiality is how it applies when enforcing a mediated agreement.' In some jurisdictions, mediation confidentiality interferes with the application of contract law when enforcing a mediated agreement to produce absurd results. This article will …
Ultra Vires Transactions, James L. Parks
Ultra Vires Transactions, James L. Parks
University of Missouri Bulletin Law Series
It used to be commonly said that if a private corporation made a contract which the legislature, creating it, expressly or impliedly prohibited it to make, all courts would be bound to treat such agreement as "illegal and therefore wholly void." This statement probably accurately expresses the orthodox attitude of courts with respect to ultra vires contracts. In some cases the same proposition, stands today, but often it has been unsatisfactory in its application, and for this reason has been relaxed in many instances to a considerable degree. The problem of giving relief upon or enforcing ultra vires agreements of …
Equitable Servitudes In Missouri, George L. Clark
Equitable Servitudes In Missouri, George L. Clark
University of Missouri Bulletin Law Series
Before the decision in Tulk v. Moxhay, a contract not to use land in a particular manner was treated by equity courts in the same way as were other negative contracts; if the plaintiff was so injured in the enjoyment of his own land that damages at law did not furnish an adequate remedy, equity would specifically enforce the contract by granting an injunction against the promisor. The right thus to control the use of the property in the hands of the promisor can hardly be classified as other than a property right, but since it was enforcible only against …