Law Commons^™

Religious Arbitration And The New Multiculturalism: Negotiating Conflicting Legal Orders, Michael A. Helfand

Michael A Helfand

This Article considers a trend towards what I have termed the "new multiculturalism," where conflicts between law and religion are less about recognition and symbolism and more about conflicting legal orders. Nothing typifies this trend more than the increased visibility of religious arbitration, whereby religious groups use current arbitration doctrine to have their disputes adjudicated not in U.S. courts and under U.S. law, but before religious courts and under religious law. This dynamic has pushed the following question to the forefront of the multicultural agenda: under what circumstances should U.S. courts enforce arbitration awards issued by religious courts in accordance …

Fighting For The Debtor's Soul: Regulating Religious Commercial Conduct, Michael A. Helfand

Michael A Helfand

Although courts often think of religion in terms of faith, prayer, and conscience, many religious groups are increasingly looking to religion as a source of law, commerce, and contract. As a result, courts are being called upon to regulate conduct that is simultaneously religious and commercial. In addressing such cases, some courts minimize the religious features of the case and simply focus on its secular elements while others over-exaggerate the religious features of the case and thereby refuse to adjudicate the dispute on Establishment Clause grounds. As an example of this dynamic, I explore the constitutionality of imposing sanctions for …

A Pro-Congress Approach To Arbitration And Unconscionability, Stephen Friedman

Stephen E Friedman

This Essay endeavors to resolve a current controversy involving the application of the unconscionability doctrine to arbitration agreements. The pro-arbitration policies of the Federal Arbitration Act (FAA) and the anti-arbitration instincts of the unconscionability doctrine are difficult to reconcile. Instead of clarity in this area of law, we have a series of hints and clues, often contradictory, from the Supreme Court. Although Professor David Horton and I share a desire to clarify this area of the law, we have nearly opposite views about how this should be accomplished. This Essay sets forth my position and also responds to Unconscionability Wars, …

Arbitration Agreements Used By Nursing Homes: An Empirical Study And Critique Of At&T Mobility V. Concepcion, Lisa Tripp

Lisa Tripp

Although the health care industry had historically been one of the fields that had not embraced pre-dispute binding arbitration agreements, that reluctance appears to be changing in at least one sector of the health care field. An examination of admission contracts used by North Carolina nursing homes and telephone survey of North Carolina nursing homes revealed that 43 percent of nursing homes now incorporate pre-dispute binding arbitration provisions into their admission contracts. All of the major nursing home chains operating in North Carolina use pre-dispute binding arbitration agreements in at least some of their facilities, while smaller operators use them …

Factors To Consider Before Arbitrating In The Arab Middle East:, Radwa S. Elsaman Ms.

Radwa S Elsaman

This article discusses two significant factors affecting arbitration in the Arab Middle East: the effect of religion on arbitration and the effect of legislative constraints on arbitration. By presenting foreign investors and practitioners with an overview of some of the unique social, legal and religious issues distinctive to arbitration in the Arab Middle East, this article will provide foreign investors and practitioners with examples of factors to consider that can affect arbitration decisions in the Middle East.

Arbitration: Handling Finra's New Discovery Guide, Barry R. Temkin, Kate Digeronimo

Barry R. Temkin

On May 16, 2011, the Financial Industry Regulatory Authority (FINRA) implemented its revised Discovery Guide and document production lists to supplement its Code of Arbitration Procedure for Customer Disputes. The new Discovery Guide provides lists of documents that parties and arbitrators are directed to consider presumptively discoverable in disputes between investors and FINRA member firms and their associated persons. The new discovery guide provides two simplified lists of documents, in an effort to streamline the prior discovery guide, which had multiple fragmentary lists depending on the theories alleged in the statement of claim.

Similarities Between Arbitration And Bankruptcy Litigation, Stephen Ware

Stephen Ware

Enforceability Of Forum Selection Clauses: A "Gallant Knight" Still Seeking Eldorado, Nathan M. Crystal, Francesca Giannoni-Crystal

Nathan M. Crystal

Forum selection clauses (“FSC”) are very common in both domestic and international contracts. In Bremen v. Zapata Off-Shore Company (“Bremen”), 407 U.S. 1 (1972), the Supreme Court established basic standards for the enforceability of such clauses. Relying on Bremen standards, courts today generally enforce FSC. However, the vagueness of Bremen standards leaves room for a party to resist enforcement. The result may be delay and inefficiency. The Supreme Court has said that arbitration clause is a form of FSC, but it has applied different standards for the enforcement of arbitration clauses from FSC. This article argues for a reformulation of …

Speaker, “Religious Arbitration And The New Multiculturalism: Negotiating Conflicting Legal Orders”, Michael Helfand

Michael A Helfand

No abstract provided.

Predisposed With Integrity: The Elusive Quest For Justice In Tripartite Arbitrations, Deseriee A. Kennedy

Deseriee A. Kennedy

No abstract provided.

On Babies And Bathwater: The Arbitration Fairness Act And The Supreme Court's Recent Arbitration Jurisprudence, Sarah Cole

Sarah Cole

Abstract: On Babies and Bathwater: The Arbitration Fairness Act and the Supreme Court’s Recent Arbitration Jurisprudence, Professor Sarah Rudolph Cole, Moritz College of Law, Ohio State University

This article addresses an important but widely overlooked issue that has plagued arbitration for many years – the disconnect between the judicial embrace of arbitration agreements between consumers (or employees) and businesses and the negative public and legislative attitude toward such agreements. For many years, Democratic legislators attempted to pass a law banning the use of pre-dispute arbitration agreements in employment disputes. In 2009, the legislators renamed this legislation and expanded its reach. …

Opening The Door To Justice: Amending The Federal Arbitration Act To Remedy The Unjust Use Of Predispute Arbitration Agreements., John D. Wood

John D. Wood, Esq.

This paper assesses the Arbitration Fairness Act’s proposed amendments to the Federal Arbitration Act, as well as the possibility of contracting for heightened judicial review of arbitration awards. In brief, I support the amendments as well as the possibility of review. Section 2(b) of the AFA would prohibit the enforcement of predispute arbitration agreements that require arbitration of employment, consumer, or franchise disputes or disputes arising under any statute intended to protect civil rights. I demonstrate why the prevailing practice of summarily enforcing predispute arbitration agreements is unjust in these contexts, and why Congressional amendment, rather than State law or …

Enforceable Arbitration Clauses In Wills And Trusts: A Critique, Stephen W. Murphy

Stephen W Murphy

A dispute over a trust or estate can tax family relationships and resources. Arbitration is an alternative that can save time and money, prevent conflict, and avoid public scrutiny. Donors might hope to place an arbitration clause in a will or trust, to require that their beneficiaries and fiduciaries settle their disputes there, rather than through long, costly, and public litigation. This paper will refer to such a provision as a “donative arbitration clause.” But state arbitration statutes would not enforce a donative arbitration clause. Those statutes only enforce arbitration clauses in a contract; and the courts that have considered …

Contracting Out Of Process, Contracting Out Of Corporate Accountability: An Argument Against Enforcement Of Pre-Dispute Limits On Process, Meredith R. Miller

Meredith R. Miller

There have been many well-articulated and convincing critiques aimed at mandatory arbitration. Indeed, presently before Congress is proposed legislation titled the Arbitration Fairness Act, that would ban pre-dispute arbitration in the consumer, franchise and employment contexts. However, maligned as the plaintiff bar's pro-lawsuit legislation, the Arbitration Fairness Act is predicted to have very little chance of enactment. Consequently, across varying industries, the pre-dispute arbitration regime endures unheedingly. Thus, this Article sets aside the arguments aimed generally at pre-dispute arbitration clauses and, instead, sets its sights on some of the terms that seem to arise in such clauses. The focus here …

Speaker, “Religious Arbitration And The New Multiculturalism: Negotiating Conflicting Legal Orders”, Michael Helfand

Michael A Helfand

No abstract provided.

Panelist, “Rabbinical Arbitration In The 21st Century: Contemporary Issues And Challenges”, Michael Helfand

Michael A Helfand

No abstract provided.

When Can Attorneys' Fees Be Recovered In An Award Enforcement Action, M. Anderson Berry, Katherine S. Ritchey, Nandini Iyer

M. Anderson Berry

Because parties do not always comply with arbitration awards, it may be necessary for the prevailing party to seek enforcement of the award in a court of law—typically in a jurisdiction where the losing party has sufficient assets. This article focuses on whether the prevailing party can recover attorneys’ fees accrued during the enforcement procedure in U.S. district court under the Federal Arbitration Act (FAA).

Timing Settlement, Curtis E.A. Karnow

Curtis E.A. Karnow

A review of empirical and theoretical research pertaining to the effective timing of settlement conferences, and the factors affecting success at settlement.

Reconsidering Arbitration: Evaluating The Future Of The Manifest Disregard Doctrine, Griffin Toronjo Pivateau

Griffin Toronjo Pivateau

In a recent decision, the Supreme Court indicated that parties may now have fewer rights to appeal arbitration awards. In Hall Street v. Mattel, Inc., the Court found that parties to an arbitration agreement could not supplement, by contract, the statutory grounds for challenging an arbitration award. Unfortunately, the Court called into doubt a long line of cases holding that a party could seek to vacate an arbitration decision where the arbitrator exhibited a manifest disregard for the law. Until the Hall Street decision, the manifest disregard doctrine enjoyed widespread acceptance. Appellate courts from every circuit have used the manifest …

Disputes Related To Healthcare Across National Boundaries: The Potential For Arbitration, Deth Sao

Deth Sao

Trade in international health services has the potential to play a leading role in the global economy, but its rapid growth is impeded by legal barriers. Advances in technology and cross-border movement of people and health services create legal ambiguities and uncertainties for businesses and consumers involved in transnational medical malpractice disputes. Existing legal protections and remedies afforded by traditional judicial frameworks are unable to resolve the following challenges: (1) assertion of personal jurisdiction; (2) choice of forum and law considerations; (3) appropriate theories of liability for injuries and damages arising from innovations in medical care and delivery of health …

Through The Looking Glass: Understanding Social Science Norms For International Investment Law, Susan Franck, Calvin Garbin, Jenna Perkins

Susan D. Franck

When social science methods are being employed in a new context — such as the assessment of international investment law — there is value in exploring the underlying assumptions and normative baselines of the enterprise. This article and response address critiques about the methodology of an article in the Harvard International Law Journal by: (1) describing the value of social science in international investment law; (2) replicating the research using new methodologies to conduct more than 20 new tests that were still unable to ascertain the existence of a reliable relationship between development status and outcomes on the basis of …

Confirming Piskei Din In Secular Court, Michael Helfand

Michael A Helfand

No abstract provided.

Arbitration Provisions: Little Darlings And Little Monsters, Stephen Friedman

Stephen E Friedman

This Article takes a new approach to resolving the growing tension between the Federal Arbitration Act (FAA) and the unconscionability doctrine. While arbitration provisions are favored under the FAA, they are viewed far more skeptically by courts applying unconscionability to refuse enforcement of one-sided arbitration provisions. This tension, which has increased dramatically in recent years, represents a major fault line in contract law. Jurisprudence and commentary on this issue have assumed that courts have the authority to apply the unconscionability doctrine to arbitration provisions. This Article refutes that assumption, taking the position that Congress, in passing the FAA, removed from …

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

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 …

East Asia’S Engagement With Cosmopolitan Ideals Under Its Trade Treaty Dispute Provisions, Chin Leng Lim

Chin Leng Lim

An East Asian view about how trade dispute settlement systems should be designed is slowly emerging. This paper argues that democratically-inspired trade law scholarship and cultural explanations of the international law behaviour of the Southeast and Northeast Asian trading nations have failed to capture or prescribe the actual treaty behaviour of these nations. Instead, such behaviour has resulted in the emergence of two different treaty models for the peaceful settlement of trade disputes. This article traces the practices of the Association of Southeast Asian Nations (ASEAN), together with that of China, Korea, Japan, Australia, and New Zealand. We find two …

A Economia Da Arbitragem, Bruno Meyerhof Salama

Bruno Meyerhof Salama