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But We Didn’T Agree To That!: Why Class Proceedings Should Not Be Implied From Silent Or Ambiguous Arbitration Clauses After Lamps Plus, Inc. V. Varela, Andrea Demelo Laprade Dec 2021

But We Didn’T Agree To That!: Why Class Proceedings Should Not Be Implied From Silent Or Ambiguous Arbitration Clauses After Lamps Plus, Inc. V. Varela, Andrea Demelo Laprade

Catholic University Law Review

The application of class arbitrability when a contract is silent on the matter remains a mystery. The Supreme Court has not clarified its stance on class arbitrability and preemptive effects of the Federal Arbitration Act on state law when applied to determine if class arbitrability is available. The purpose of this Paper is to address how the Lamps Plus v. Varela decision created more confusion about the question of class arbitrability. It argues that the failure to address the particulars of the availability of class arbitration will perpetuate litigation on this issue. This Paper suggests that the FAA’s purpose supports …


The Best Of Times And The Worst Of Times: The Current Landscape Of Mandatory Arbitration Clause Enforcement In Domestic Arbitration, Virginia Neisler Feb 2019

The Best Of Times And The Worst Of Times: The Current Landscape Of Mandatory Arbitration Clause Enforcement In Domestic Arbitration, Virginia Neisler

Law Librarian Scholarship

There is nothing new about arbi­tration, a method of alternative dispute resolution designed to settle disputes more efficiently, cheaper, and faster than litigation. Today, mandatory arbitration clauses are ubiquitous in commercial contracts, social media terms and conditions, employment contracts, and more. These contracts, where one party in the weaker position (often a consumer or an employee) must either accept or reject the terms as written with no power to negotiate, are known as contracts of adhesion. The widespread use of arbitration clauses—specifically, pre­dispute, forced arbitration agreements, often including class­action waiv ers found in adhesion contracts—has come under pressure.


After Tackett: Incomplete Contracts For Post-Employment Healthcare, Maria O'Brien Hylton Apr 2016

After Tackett: Incomplete Contracts For Post-Employment Healthcare, Maria O'Brien Hylton

Pace Law Review

This is a story about a union and a private sector employer who repeatedly negotiated collective bargaining agreements which referenced side contracts which provided retirees with post-employment healthcare benefits. In the early decades of their relationship neither the union nor the employer appear to have given any thought to whether or not these retiree health benefits in fact vested—i.e. were promised to retirees at no cost for the remainder of their lives. By the 1980s and certainly the 1990s however, as health care costs soared and life expectancy expanded, both parties continued to regularly re-negotiate agreements that were silent as …


College Football Coaches' Pay And Contracts: Are They Overpaid And Unduly Privileged?, Randall S. Thomas, R. Lawrence Van Horn Jan 2016

College Football Coaches' Pay And Contracts: Are They Overpaid And Unduly Privileged?, Randall S. Thomas, R. Lawrence Van Horn

Vanderbilt Law School Faculty Publications

College football coaches' employment contracts and compensation garner public attention and scrutiny in much the same way as those of corporate CEOs. In both cases, the public perception is that they must be overpaid and pampered Economic theory claims that for coaches and CEOs to be overpaid, they must be receiving compensation in excess of the value they create for their organizations. However, both receive pay-for-performance compensation, which structurally aligns their compensation with value creation. This means we need to examine the underlying structure of the contract that gives rise to the observed compensation to determine whether they are appropriately …


Restrictive Covenants In Illinois: Adequate Consideration Problems Show That The Common Law Is An Inadequate Solution, David S. Repking Jun 2015

Restrictive Covenants In Illinois: Adequate Consideration Problems Show That The Common Law Is An Inadequate Solution, David S. Repking

Chicago-Kent Law Review

Illinois courts have long dealt with whether restrictive covenants, specifically non-compete clauses, can and should be enforced when they involve employees of businesses. Many aspects of restrictive covenants have been litigated, but a recent Illinois Appellate Court case analyzed the issue of what is adequate consideration in order to enforce a restrictive covenant against a former employee. The First District in Fifield v. Premier Dealer Services, Inc., affirmed a bright-line, two-year rule for deciding how long an employee must work for an employer before a re-strictive covenant can be enforced.

The two-year rule protects employees because an employer cannot …


An Empirical Analysis Of Noncompetition Clauses And Other Restrictive Postemployment Covenants, Randall S. Thomas, Norman D. Bishara, Kenneth J. Martin Jan 2015

An Empirical Analysis Of Noncompetition Clauses And Other Restrictive Postemployment Covenants, Randall S. Thomas, Norman D. Bishara, Kenneth J. Martin

Vanderbilt Law Review

Employment contracts for most employees are not publicly available, leaving researchers to speculate about whether they contain postemployment restrictions on employee mobility, and if so, what those provisions look like. Using a large sample of publicly available CEO employment contracts, we are able to examine these noncompetition covenants, including postemployment covenants not to compete ("CNCs" or "noncompetes'), nonsolicitation agreements ("NSAs"), and nondisclosure agreements ("NDAs'). What we found confirms some long-held assumptions about restrictive covenants but also uncovers some surprises.

We begin by discussing why employers use restrictive covenants and examining how the courts have treated them. We then analyze an …


An Empirical Analysis Of Noncompetition Clauses And Other Restrictive Postemployment Covenants, Randall Thomas Jan 2015

An Empirical Analysis Of Noncompetition Clauses And Other Restrictive Postemployment Covenants, Randall Thomas

Vanderbilt Law School Faculty Publications

Employment contracts for most employees are not publicly available, leaving researchers to speculate about whether they contain postemployment restrictions on employee mobility, and if so, what those provisions look like. Using a large sample of publicly available CEO employment contracts, we are able to examine these noncompetition covenants, including postemployment covenants not to compete ("CNCs" or "noncompetes'), nonsolicitation agreements ("NSAs"), and nondisclosure agreements ("NDAs'). What we found confirms some long-held assumptions about restrictive covenants but also uncovers some surprises.

We begin by discussing why employers use restrictive covenants and examining how the courts have treated them. We then analyze an …


Tenure, The Aberrant Consumer Contract, James J. White Jan 2014

Tenure, The Aberrant Consumer Contract, James J. White

Chicago-Kent Law Review

The tenure contract that prevails among the faculty at nearly all American colleges and universities is unusual, for the employee, who is normally the weaker, is favored by the contract over the employer, who is normally the stronger. The first part of the paper explains what tenure means and how it came about in the early twentieth century. The second part of the paper argues that the contract protects not only academic freedom but also bad teaching and weak scholarship. Finally the paper argues that the tenure contract should be abolished or restricted to minimize the inefficiencies that are now …


Eliminating The Mandatory Trade-Off: Should Employees Have The Right To Choose Arbitration ?, Michael Peabody Apr 2012

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 …


Parallel Contract, Aditi Bagchi Feb 2012

Parallel Contract, Aditi Bagchi

All Faculty Scholarship

This Article describes a new model of contract. In parallel contract, one party enters into a series of contracts with many similarly situated individuals on background terms that are presumptively identical. Parallel contracts depart from the classical model of contract in two fundamental ways. First, obligations are not robustly dyadic in that they are neither tailored to the two parties to a given agreement nor understood by those parties by way of communications with each other. Second, obligations are not fixed at a discrete moment of contract. Parallel contracts should be interpreted differently than agreements more consistent with the classic …


A Fighting Chance: The Proposed Servicemembers Access To Justice Act & Its Potential Effects On Binding Arbitration Agreements, Sean M. Hardy Feb 2012

A Fighting Chance: The Proposed Servicemembers Access To Justice Act & Its Potential Effects On Binding Arbitration Agreements, Sean M. Hardy

Pepperdine Dispute Resolution Law Journal

In August 2008 a bill was introduced in the United States Senate that clearly states Uniformed Services Employment and Reemployment Rights of 1994 (USERRA) claims supersede any preexisting arbitration clauses in employment agreements. This bill, known as the Servicemembers Access to Justice Act (SAJA), would restore full access to the federal court system for USERRA plaintiffs. This paper examines the SAJA and its potential effects on the USERRA. It begins with a survey of the history behind the passage of the USERRA, as well as the FAA. Next, it describes the two federal circuit court decisions that have led to …


Comparing Ceo Employment Contract Provisions: Differences Between Australia And The United States, Randall Thomas, Jennifer G. Hill, Ronald W. Masulis Jan 2011

Comparing Ceo Employment Contract Provisions: Differences Between Australia And The United States, Randall Thomas, Jennifer G. Hill, Ronald W. Masulis

Vanderbilt Law School Faculty Publications

The results of our comparison of U.S. and Australian contracts offer some interesting contrasts with several earlier studies that compare U.S. and U.K. CEO compensation. In those prior studies, the authors conclude that U.S. CEOs' compensation is significantly higher than U.K. CEOs' compensation. What is interesting about our initial results is that U.S. CEOs clearly do not have higher base salaries in comparison to Australia. On the other hand, U.S. contracts are much more likely to include restricted stock and stock option features, which generally require payment after a CEO remains at the firm a fixed number of years, typically …


Arbitration Costs And Forum Accessibility: Empirical Evidence, Christopher R. Drahozal Jul 2008

Arbitration Costs And Forum Accessibility: Empirical Evidence, Christopher R. Drahozal

University of Michigan Journal of Law Reform

In this Article, written for this symposium issue on "Empirical Studies of Mandatory Arbitration," I examine the available empirical evidence on these two questions. I take "mandatory arbitration" to refer to pre-dispute arbitration clauses in consumer and employment (and maybe franchise) contracts. Accordingly, I limit my consideration of the empirical evidence to those types of contracts. I do not discuss empirical studies of international arbitrations, which almost always arise out of agreements between commercial entities. Nor do I discuss empirical studies of court-annexed arbitrations, which may not derive from party agreement and do not ordinarily proceed to a binding award.


Separating Contract And Promise, Aditi Bagchi Sep 2007

Separating Contract And Promise, Aditi Bagchi

All Faculty Scholarship

Contract has been conceptualized as a species of promise. Treating contractual promise as a kind of promise highlights certain important aspects of contracting, but it also obscures essential differences between legally binding and everyday, or what I will call “private,” promises. The moral character of a private promise depends on the fact that it is not only freely made but also freely kept. Most contractual promises are not intended to have and (by definition) do not have this voluntary character. A promisor essentially opts out of the private practice of promising when she assigns to a third party the authority …


Bearded Ladies Walking On The Brooklyn Bridge, David G. Epstein Jan 2006

Bearded Ladies Walking On The Brooklyn Bridge, David G. Epstein

Law Faculty Publications

This article discusses the post-Restatement Second use, misuse, and abuse of the terms "bilateral contract" and "unilateral contract" and answers the hypotheticals in the first paragraphs of the article.


On The Stickiness Of Default Rules, Omri Ben-Shahar, John A. E. Pottow Jan 2006

On The Stickiness Of Default Rules, Omri Ben-Shahar, John A. E. Pottow

Articles

It was once perceived, and still is commonly taught, that default rules in contract law must mimic efficient arrangements. Otherwise, these rules impose needless transaction costs upon parties who seek to opt out of them to reach more efficient positions. In settings where these costs are high, parties might find themselves "stuck" in a default, unable to reach the outcome that they prefer. The strong version of this account-that the only factor that can make an inefficient default rule stick is the direct cost of drafting a tailored provision-has been gradually reappraised. It is by now recognized that factors beyond …


The Unfulfilled Promise Of Promissory Estoppel In The Employment Setting, Robert A. Hillman Oct 1999

The Unfulfilled Promise Of Promissory Estoppel In The Employment Setting, Robert A. Hillman

Cornell Law Faculty Publications

Although the theory of promissory estoppel enforces promises that induce reasonable detrimental reliance, this article reveals the theory's colossal failure in the non-union employment setting. This conclusion is based on an examination of all of the reported decisions in the United States that discussed promissory estoppel over a two-year period in the mid 1990's. During this period, employees won only 4.23 percent of employment promissory estoppel cases decided on the merits. At first blush, this is very surprising because employers, through their communications, seek to create the expectation of a stable, secure work environment and employees, because of their lack …


The Federal Arbitration Act And Individual Employment Contracts: A Better Means To An Equally Just End, William F. Kolakowski Iii Jun 1995

The Federal Arbitration Act And Individual Employment Contracts: A Better Means To An Equally Just End, William F. Kolakowski Iii

Michigan Law Review

This Note argues that courts should adopt a narrow reading of the employment contract exception to the FAA, thus making arbitration agreements in most individual employment contracts enforceable under the Act. Part I argues that a textual analysis of the FAA supports a narrow interpretation of the exception. Because some courts and commentators have argued that the text favors a broad interpretation, Part II examines the legislative history of the exception and demonstrates that no firm conclusions can be drawn about congressional intent regarding the exception's scope. Finally, Part III demonstrates that a narrow reading of the exception best serves …


Policing Employment Contracts Within The Nexus-Of-Contracts Firm, Katherine V.W. Stone Jul 1993

Policing Employment Contracts Within The Nexus-Of-Contracts Firm, Katherine V.W. Stone

Cornell Law Faculty Publications

No abstract provided.


"Bad Faith Breach": A New And Growing Concern For Financial Institutions, Susan D. Gresham Jan 1989

"Bad Faith Breach": A New And Growing Concern For Financial Institutions, Susan D. Gresham

Vanderbilt Law Review

A majority of courts have determined that all contracts impose on the parties to the contract an implied covenant of good faith and fair dealing in their actions with each other. This implied covenant prohibits a contracting party from injuring another party's right to receive the benefits of the agreement. Breach of this implied covenant usually creates a cause of action based on contract rights. Moreover, California courts maintain that breach of the implied covenant of good faith and fair dealing creates a tort action as well. The California courts initially limited these tort actions to claims against insurance companies. …


Challenging The Employment-At-Will Doctrine Through Modern Contract Theory, Clare Tully Jan 1983

Challenging The Employment-At-Will Doctrine Through Modern Contract Theory, Clare Tully

University of Michigan Journal of Law Reform

This Note advocates an implied contract analysis that both satisfies contractual requirements and protects the reasonable expectations of employees and employers. Part I describes the various reliance interests that employees bring to their jobs, the employer inducements that cause this reliance, and the business benefits that accrue when employees rely upon these inducements. Part II examines in detail judicial reluctance to enforce either these reliance interests or employer promises as contract rights under the at-will doctrine. Part II also urges the increased use of modern contract theories such as promissory estoppel, quasi-contract, and implied contract to protect employee reliance interests …


Employment Contracts Terminable At Will: Monge V. Beebe Rubber Co. And Bad Faith Discharges, Terry Sellars Jan 1974

Employment Contracts Terminable At Will: Monge V. Beebe Rubber Co. And Bad Faith Discharges, Terry Sellars

Kentucky Law Journal

No abstract provided.


Comment: The Enforcement Of Agreements To Arbitrate, Irving Kovarsky Oct 1961

Comment: The Enforcement Of Agreements To Arbitrate, Irving Kovarsky

Vanderbilt Law Review

Three 1960 Supreme Court decisions' have limited the ability of litigants to challenge successfully the jurisdiction and award-making powers of labor arbitrators. The limitations imposed by the Court upon the judiciary's power to question the arbitrator, a reversal of traditional procedure, is of great significance and will unquestionably necessitate some readjustment on the part of management. This article attempts to place these recent developments in perspective and to suggest briefly certain practical changes in the attitudes of courts and contract negotiators that may result from them.


Injunction - Mutuality- Personal Service Contract Mar 1932

Injunction - Mutuality- Personal Service Contract

Michigan Law Review

Plaintiff and defendant entered into a contract whereby plaintiff was to teach defendant boxing and to use his best efforts to negotiate and manage boxing bouts for defendant over a period of five years, the proceeds of the contests to be divided between plaintiff, defendant, and a brother of defendant on a percentage basis. Defendant agreed not to engage, during the life of the contract, in any "boxes, exhibition fights, or theatrical performances except such as have been procured by" the plaintiff. On appeal by defendant from a temporary injunction restraining his breach of the negative covenant, held, assuming …