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Articles 1 - 26 of 26
Full-Text Articles in Law
The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble:" A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N. C. Smalkin
The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble:" A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N. C. Smalkin
Faculty Scholarship
Recently, a respected jurist has lamented the declining number of federal jury trials. Chief Judge William Young of the United States District Court for the District of Massachusetts, writing in the Federal Lawyer, pointed out that jury trials in federal civil cases declined 26% in the decade between 1989 and 1999, which he attributed to four factors: the district court judiciary’s “loss of focus” on the core function of trying jury cases; the business community’s loss of interest in jury adjudication (“opting out of the legal system altogether” in favor of arbitration); Congress’s “marginalizing the district court judiciary”; and …
California’S New Ethics Standards: A Hot Bed Of Controversy, Rebecca Callahan
California’S New Ethics Standards: A Hot Bed Of Controversy, Rebecca Callahan
ExpressO
The article examines California’s new ethics rules and examines the cases which have been decided to date challenging and applying those rules. The stated goals of the New Ethics Rules are “to inform and protect participants in arbitration, and to promote public confidence in the arbitration process.” This is a laudable goal since arbitration is a private process that is dependent on public acceptance. The heart of the controversy concerning the New Ethics Rules revolves around the practical inconvenience and cost burden associated with compliance. The enclosed article concludes that such a burden goes hand-in-hand with the privilege of being …
Market Solutions To Market Problems: Re-Examining Arbitral Immunity As A Solution To Unfairness In Securities Arbitration, Peter B. Rutledge
Market Solutions To Market Problems: Re-Examining Arbitral Immunity As A Solution To Unfairness In Securities Arbitration, Peter B. Rutledge
Scholarly Works
This paper addresses the fairness of securities arbitrations in the United States. A few decades ago, such a topic would have been relegated to the academic hinterlands. For the first fifty years following the enactment of the nation's securities laws, pre-dispute arbitration agreements between investors and the securities industry were not enforceable. In a series of decisions in the late 1980s, the Supreme Court reversed course and held that such disputes were indeed arbitrable. Following those decisions, arbitration quickly became the preferred method of dispute resolution for cases arising under the nation's securities laws, especially disputes between investors and broker-dealers. …
The Nature And Enforcement Of Investor Rights Under Investment Treaties: Do Investment Treaties Have A Bright Future, Susan Franck
The Nature And Enforcement Of Investor Rights Under Investment Treaties: Do Investment Treaties Have A Bright Future, Susan Franck
Articles in Law Reviews & Other Academic Journals
The number of investment treaties has surged in the past decade. Even now, the United States and Canada are actively engaged in programs designed to facilitate the completion of multilateral treaties such as the Dominican Republic-Central American Free Trade Agreement (CAFTA-DR) and Bilateral Investment Treaties (BITs). These investment treaties act like economic bills of rights, which grant foreign investors substantive protections and procedural rights to facilitate investment. Sovereigns, meanwhile, may benefit from these treaties by obtaining increased foreign direct investment, which may promote the development of their country's infrastructure 6 and offer citizens basic services including access to clean water, …
Sailing Around Erie:The Emergence Of A Federal General Common Law Of Arbitration, Kenneth Dunham
Sailing Around Erie:The Emergence Of A Federal General Common Law Of Arbitration, Kenneth Dunham
ExpressO
This paper traces the history of American arbitration from the common law to the FAA. It discusses the FAA as a procedural act prior to Southland v. Keating and as a substantive law act following Southland. It discusses the Erie doctrine as applicable to federal courts and state law preemption. The article concludes that Southland by-passed Erie using the Commerce Clause and the Supremacy Clause to create a federal common law of arbitration.
International Arbitration Is Not Your Father's Oldsmobile, Kenneth F. Dunham
International Arbitration Is Not Your Father's Oldsmobile, Kenneth F. Dunham
Journal of Dispute Resolution
This article provides a short prospectus for the unwary lawyer who must venture into unfamiliar territory abroad. Although there are numerous arbitral forums available in countries all over the world, this article will focus primarily on the LCIA and the ICC. Following a brief history of international arbitration and the history of these two international arbitral forums, the article will discuss some of the major issues in international arbitration such as forum selection, issue preclusion and procedural matters. This article also includes sections on appealing awards and enforcement of awards under existing international treaties. The article is brought to a …
Everybody Loves Arbitration: The Second Circuit Sets Pro-Arbitration Precedent In International Commercial Arbitration Cases, Jasen Matyas
Everybody Loves Arbitration: The Second Circuit Sets Pro-Arbitration Precedent In International Commercial Arbitration Cases, Jasen Matyas
Journal of Dispute Resolution
Phoenix Aktiengesellschaft v. Ecoplas, Inc. presented the Second Circuit with an unresolved question of preemption in international arbitration under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention). The court specifically addressed the issue of whether the consent-to-confirmation requirement of section 9 of the Federal Arbitration Act (FAA) conflicted with section 207 of the FAA which does not require such consent. Section 208 incorporates Chapter 1 provisions to the extent that such provisions are not in conflict with Chapter 2. Phoenix held that the two provisions were in conflict, and consent-to-confirmation is not incorporated into Chapter 2. …
Rules For A New Game: Finding A Workable Solution For Applying Class Actions To The Arbitration Process, Andrew Remy Norton
Rules For A New Game: Finding A Workable Solution For Applying Class Actions To The Arbitration Process, Andrew Remy Norton
Journal of Dispute Resolution
In 2003, the Supreme Court's decision in Green Tree Financial Corp. v. Bazzle, indicated that class-wide arbitration was permissible. As a result the number of cases of class-wide arbitration is likely to increase. Because of the few courts that have actually employed class-wide arbitration it has not been definitively settled as to how the hybrid procedure should be conducted. One school of thought emphasizes the class members' due process rights, while another argues that maintaining the integrity of the arbitration process should be a priority. This casenote analyzes the two separate theories and attempts to devise a workable solution for …
Pro-Arbitration Policy: Is This What The Parties Really Intended - The Courts' Treatment Of Forum Selection Clauses In Arbitration Agreements, The, Lance Roskens
Journal of Dispute Resolution
In today's global economy, it is not uncommon for parties from different locations to contract together both in commerce and in employment. Especially in the context of employers, one party will often want any and all disputes it has with its employees to be resolved via arbitration in a certain forum. To accomplish this, employers often include a forum selection clause in the arbitration agreement with the future employee. Thus, if and how courts address forum selection clauses is of paramount importance to employers. In Sterling Financial Investment Group, Inc. v. Hammer, the 11 th Circuit Court of Appeals were …
Arbitrability Of Arbitrability, The, Michelle St. Germain
Arbitrability Of Arbitrability, The, Michelle St. Germain
Journal of Dispute Resolution
If you can read the following only once and understand it, consider yourself part of a very small minority: "It is the dilemma of the box within a box or, in the case of arbitration, the authority as to the decision as to the authority to make the decision." That is "arbitrability" in a nutshell; not a simple concept. Indeed, at oral argument in First Options of Chicago, Inc. v. Kaplan, the confusion occurred to a U.S. Supreme Court Justice.
An Evaluation Of Current Legitimacy-Based Objections To Nafta's Chapter 11 Investment Dispute Resolution Process, Naveen Gurudevan
An Evaluation Of Current Legitimacy-Based Objections To Nafta's Chapter 11 Investment Dispute Resolution Process, Naveen Gurudevan
San Diego International Law Journal
The year 1994 saw the conclusion of a very important trilateral trade and investment treaty in North America: the North American Free Trade Agreement. Since then, this agreement has had a tremendous impact on the trading relations among the three signatory states-the United States, Canada, and Mexico. Of particular significance is Chapter 11, the Investment Chapter. One of the main objectives of Chapter 11 is to provide an effective means for the resolution of disputes between a foreign investor and the host government. To this end, it provides a mechanism whereby private parties can initiate arbitration proceedings against the host …
An Arbitrator's Authority To Award Attorney Fees For Bad-Faith Arbitration, Thomas V. Burch
An Arbitrator's Authority To Award Attorney Fees For Bad-Faith Arbitration, Thomas V. Burch
Thomas V. Burch
No abstract provided.
Market For Private Dispute Resolution Services - An Empirical Re-Assessment Of Icann-Udrp Performance, The, Jay P. Kesan, Andres A. Gallo
Market For Private Dispute Resolution Services - An Empirical Re-Assessment Of Icann-Udrp Performance, The, Jay P. Kesan, Andres A. Gallo
Michigan Telecommunications & Technology Law Review
We present a thorough analysis of one of the ADR regimes that is considered a significant success in Internet markets, the Uniform Dispute Resolution Policy (UDRP) implemented by the Internet Corporation for Assigned Names and Numbers (ICANN). In this work, we perform a complete empirical analysis of the UDRP and evaluate its performance. We then extrapolate the results to other sectors of the Internet market and to private dispute resolution in general.[...] In this paper, we thoroughly critique the performance of the UDRP providers and identify the main variables that determine ICANN's efficiency. For example, one of the key variables, …
Democracy And Dispute Resolution: The Problem Of Arbitration, Richard C. Reuben
Democracy And Dispute Resolution: The Problem Of Arbitration, Richard C. Reuben
Faculty Publications
Scholars have approached arbitration, especially under the Federal Arbitration Act, from a variety of perspectives, including doctrinal, historical, empirical, and practical. One aspect that has not yet been fully considered, however, is the relationship between arbitration and constitutional democracy. Yet, as a dispute-resolution process that is often sanctioned by the government, that sometimes inextricably intertwines governmental and private conduct, and that derives its legitimacy from the government, it is appropriate--indeed, our responsibility--to ask whether arbitration furthers the goals of democratic governance. It is only sensible that state-supported dispute resolution in a democracy should strengthen, rather than diminish, democratic governance and …
The Legitimacy Crisis In Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions, Susan Franck
The Legitimacy Crisis In Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions, Susan Franck
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Mobile Home Mania? Protecting Procedurally Fair Arbitration In A Consumer Microcosm, Amy J. Schmitz
Mobile Home Mania? Protecting Procedurally Fair Arbitration In A Consumer Microcosm, Amy J. Schmitz
Faculty Publications
Consumers' lack of warranty remedies prompted Congress to enact the 2000 Manufactured Housing Improvement Act (MHIA). Under the Act, the Office of Housing and Urban Development (HUD) must develop a program for resolving MH warranty disputes by the end of 2005. This article provides input regarding that program. It also calls for broader protection of procedural fairness in arbitration of disputes regarding warranties for mobile or manufactured homes (referred to in the article as MHs for ease of reference). Although HUD's program aims to create a process for resolving warranty disputes among manufacturers, dealers and installers, this article proposes that …
The Vocation Of International Arbitrators, Catherine A. Rogers
The Vocation Of International Arbitrators, Catherine A. Rogers
Journal Articles
This Essay examines the vocation of the international arbitrator. I begin by evaluating, under sociological frameworks developed in literature on Weberian theories of the professions, how the arbitration community is organized and regulated. Arbitrators operate in a largely private and unregulated market for services, access to which is essentially controlled by what might be considered a governing cartel of the most elite arbitrators. I conclude my description with an account of how recently international arbitrators have begun to display a professional impulse, meaning efforts to present themselves as a profession to obtain the benefits of professionalization. Professional status is often …
Regulating International Arbitrators: A Functional Approach To Developing Standards Of Conduct, Catherine A. Rogers
Regulating International Arbitrators: A Functional Approach To Developing Standards Of Conduct, Catherine A. Rogers
Journal Articles
Some scholars have protested that arbitrators are subject to less exacting regulation than barbers and taxidermists. The real problem with international arbitrators, however, is not that they are subject to less regulation, but that no one agrees about how they should be regulated. The primary reason for judicial and scholarly disagreement is that, instead of a coherent theory, analysis of arbitrator conduct erroneously relies on a misleading judicial referent and a methodologic failure to separate conduct standards (meaning those norms or rules that guide arbitrators' professional conduct) from enforcement standards (meaning those narrow grounds under which an arbitral award can …
Final Offer Arbitration, Harold I. Abramson
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 …
California's Unique Approach To Arbitration: Why This Road Less Traveled Will Make All The Difference On The Issue Of Preemption Under The Federal Arbitration Act, Michael G. Mcguiness, Adam J. Karr
California's Unique Approach To Arbitration: Why This Road Less Traveled Will Make All The Difference On The Issue Of Preemption Under The Federal Arbitration Act, Michael G. Mcguiness, Adam J. Karr
Journal of Dispute Resolution
We begin this article by framing the issue in simple terms. The statute itself is clear. The FAA contains a "savings clause" that provides that arbitration agreements shall be "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.", By its terms, the FAA permits courts to refuse to enforce arbitration agreements if the agreement is invalid under state laws that "arose to govern issues concerning the validity, revocability, and enforceability of contracts generally."
If You Lose, It Is Binding, But If You Win - They Get A New Trial: Illinois Uninsured Motorist Arbitration, Michael J. Hanagan
If You Lose, It Is Binding, But If You Win - They Get A New Trial: Illinois Uninsured Motorist Arbitration, Michael J. Hanagan
Journal of Dispute Resolution
In Reed v. Farmers Insurance Group the Illinois Supreme Court-by a 4-3 vote-upheld an arbitration system in which injury victims are bound by awards below $20,000, but in which insurance companies can insist on a trial de novo for awards over that amount.' A recent legislative enactment has complicated the threshold at which awards change from binding to non-binding, by increasing it to $50,000. However, even in cases where a higher threshold applies, those injury victims receiving awards below the threshold (or losing on the issue of liability) are bound by the arbitration, while injury victims receiving awards higher than …
Where Can Unconscionability Take Arbitration - Why The Fifth Circuit's Conscience Was Only Partially Shocked, Mary Jane Groff
Where Can Unconscionability Take Arbitration - Why The Fifth Circuit's Conscience Was Only Partially Shocked, Mary Jane Groff
Journal of Dispute Resolution
As a means of countering the pro-arbitration stance taken by the Supreme Court, a number of lower courts have chosen to police the fairness of arbitration clauses in contracts by using the doctrine of unconscionability. The Supreme Court has authorized the use of generally applicable contract law principles including unconscionability-to invalidate arbitration agreements. Unconscionability provides courts with a flexible tool for coming to the rescue of parties who, if the court is sufficiently shocked, find themselves entangled in unfair arbitration clauses. This Note addresses the Fifth Circuit's use of unconscionability in respect to a particularly one-sided arbitration clause, and examines …
The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble": A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N.C. Smalkin
The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble": A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N.C. Smalkin
All Faculty Scholarship
Recently, a respected jurist has lamented the declining number of federal jury trials. Chief Judge William Young of the United States District Court for the District of Massachusetts, writing in the Federal Lawyer, pointed out that jury trials in federal civil cases declined 26% in the decade between 1989 and 1999, which he attributed to four factors: the district court judiciary's loss of focus on the core function of trying jury cases; the business community's loss of interest in jury adjudication (opting out of the legal system altogether in favor of arbitration); Congress's marginalizing the district court judiciary; and the …
Creeping Mandatory Arbitration: Is It Just?, Jean R. Sternlight
Creeping Mandatory Arbitration: Is It Just?, Jean R. Sternlight
Scholarly Works
This Article examines the phenomenon of mandatory binding arbitration, imposed on consumers and employees, and considers whether this type of dispute resolution serves or instead undermines justice. It is fairly easy to attack binding arbitration as unfair, for example pointing to the fact that it undermines rights to jury trial and to proceed in class actions. However, this Article seeks to examine the phenomenon of mandatory binding arbitration from a broader perspective, recognizing that it is inappropriate to assume that justice requires our existing system of litigation, with its class actions and jury trial. The Article concludes that while informal …
An Essay Challenging The Racially Biased Selection Of Arbitrators For Employment Discrimination Suits, Michael Z. Green
An Essay Challenging The Racially Biased Selection Of Arbitrators For Employment Discrimination Suits, Michael Z. Green
Faculty Scholarship
Since 1991, employers have increasingly decided to require that employees agree to arbitrate statutory employment discrimination claims as a condition of employment. This Essay seeks to expose some of the potential discriminatory components that may arise in the arbitrator selection process while highlighting the lack of legal remedy for those who believe that employers, in conjunction with neutral service provders, have stacked the pool in favor of having arbitrators who tend to be older, white and male. The Essay suggests the use of 42 U.S.C. Section 1981 as a potential remedy and challenge to the dearth of arbitrators of color …