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Articles 1 - 23 of 23
Full-Text Articles in Law
Surprises In The Skies: Resolving The Circuit Split On How Courts Should Determine Whether An "Accident" Is "Unexpected Or Unusual" Under The Montreal Convention, Ashley Tang
Washington Law Review
Article 17 of both the Montreal Convention and its predecessor, the Warsaw Convention, imposes liability onto air carriers for certain injuries and damages from “accidents” incurred by passengers during international air carriage. However, neither Convention defines the term “accident.” While the United States Supreme Court opined that, for the purposes of Article 17, an air carrier’s liability “arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger,” it did not explain what standards lower courts should employ to discern whether an event is “unexpected or unusual.” In 2004, …
The New Bailments, Danielle D’Onfro
The New Bailments, Danielle D’Onfro
Washington Law Review
The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care …
Structural Barriers To Inclusion In Arbitrator Pools, Nicole G. Iannarone
Structural Barriers To Inclusion In Arbitrator Pools, Nicole G. Iannarone
Washington Law Review
Critics increasingly challenge mandatory arbitration because the pools from which decisionmakers are selected are neither diverse nor inclusive. Evaluating diversity and inclusion in arbitrator pools is difficult due to the black box nature of mandatory arbitration. This Article evaluates inclusion in arbitrator pools through a case study on securities arbitration. The Article relies upon the relatively greater transparency of the Financial Industry Regulatory Authority (FINRA) forum. It begins by describing the unique role that small claims securities arbitration plays in maintaining investor trust and confidence in the securities markets before describing why ensuring that the FINRA arbitrator pool is both …
"Underdog" Arbitration: A Plan For Transparency, Ramona L. Lampley
"Underdog" Arbitration: A Plan For Transparency, Ramona L. Lampley
Washington Law Review
The use of mandatory, pre-dispute arbitration clauses in consumer, employment, health-care, and even nursing home agreements is ever-increasing, even though the general public has distrust and a lack of understanding of the nature of arbitration. The Supreme Court in AT&T Mobility LLC v. Concepcion, and then in American Express Co. v. Italian Colors Restaurant, has signaled firmly that mandatory pre-dispute arbitration is here to stay. This is true even for individual low-value claims in which one party, say the consumer or employee, has little or no bargaining power. I call these claims “underdog claims.” There have been numerous …
Settling Significant Cases, Jeffrey R. Seul
Settling Significant Cases, Jeffrey R. Seul
Washington Law Review
Negotiation, mediation, and other consensus-based alternatives to litigation are most often studied and defended in the context of ordinary disputes, in which liability and distributive issues are contested, but the background norms that govern the outcome of a lawsuit are not. Many consider adjudication to be the only acceptable process for addressing "significant cases": disputes about abortion, school prayer, the environment, and other value-laden issues in which background norms are contested. I argue that this perspective is ironic because litigation, like negotiation, entails compromise. Litigation is a lottery in which the substantive values a party seeks to defend, and which …
Government-To-Citizen Online Dispute Resolution: A Preliminary Inquiry, Anita Ramasastry
Government-To-Citizen Online Dispute Resolution: A Preliminary Inquiry, Anita Ramasastry
Washington Law Review
This Article first examines the use of ODR [online dispute resolution] as a tool for private sector dispute resolution. It explores some of the reasons for a slower rate of uptake in business-to-consumer e-commerce disputes. The Article then suggests that a new and innovative use for ODR may be for public sector dispute resolution—between governments and citizens. The use of technology for public dispute resolution may promote access to justice in the administrative context.
Back To Prima Paint Corp. V. Flood & Conklin Manufacturing Co.: To Challenge An Arbitration Agreement You Must Challenge The Arbitration Agreement, Andre V. Egle
Washington Law Review
The Federal Arbitration Act (FAA) requires courts to order parties in a dispute arising out of a commercial contract containing an arbitration provision to proceed to arbitration unless the formation or performance of the arbitration agreement itself is at issue. In 1967, the U.S. Supreme Court held in Prima Paint Corp. v. Flood & Conklin Manufacturing Co. that under the FAA, courts, instead of arbitrators, should resolve claims for fraudulent inducement of arbitration agreements. However, courts were not permitted to resolve claims for fraud in the inducement of the underlying commercial contracts. The Court also held that when deciding whether …
On Apology And Consilience, Erin Ann O'Hara, Douglas Yarn
On Apology And Consilience, Erin Ann O'Hara, Douglas Yarn
Washington Law Review
This Article joins the current debate about the proper relationship between apology and the law. Several states are considering legislation designed to shield apologies from the courtroom, and mediators are increasing their focus on the importance of apologies. The article develops an evolutionary economic analysis of apology that combines the tools of economics, game theory, and biology to more fully understand its role in dispute resolution. When the analysis is applied to the uses of apology before and at trial, a more sophisticated understanding of the relationship between apology and the law emerges.
Impeaching Lying Parties With Their Statements During Negotiation: Demysticizing The Public Policy Rationale Behind Evidence Rule 408 And The Mediation-Privilege Statutes, Lynne H. Rambo
Washington Law Review
Virtually all American jurisdictions have laws—either rules of evidence or mediation-privilege statutes or both—that exclude from evidence statements that parties make during negotiations and mediations. The legislatures (and sometimes courts) that have adopted these exclusionary rules have invoked a public policy rationale: that parties must be able to speak freely to settle disputes, and they will not speak freely if their statements during negotiation can later be admitted against them. This rationale is so widely revered that many courts have relied on it to prohibit the use of negotiation statements to impeach, even when the inconsistency of the negotiation statement …
A Proposed Conflict Of Interest Rule For Attorney-Mediators, Michelle D. Gaines
A Proposed Conflict Of Interest Rule For Attorney-Mediators, Michelle D. Gaines
Washington Law Review
Maintaining the success and fairness of mediation requires mediators to be impartial toward all parties and to protect the confidentiality of mediation sessions. Attorney-mediators encounter conflicts of interest, based on prior or subsequent representation of clients, that can disrupt impartiality or confidentiality. When attorneys practice mediation, it is unclear where they should look for guidance: attorney rules of professional conduct, mediator ethical standards, or both. Additionally, attorney-mediators encounter unique issues that ethical guidelines designed for attorneys or mediators do not address adequately. This Comment proposes a comprehensive conflict of interest rule for inclusion in the Rules of Professional Conduct that …
Overextension Of Arbitral Authority: Punitive Damages And Issues Of Arbitrability—Raytheon Co. V. Automated Business Systems, Inc., 882 F.2d 6 (1st Cir. 1989), Douglas R. Davis
Overextension Of Arbitral Authority: Punitive Damages And Issues Of Arbitrability—Raytheon Co. V. Automated Business Systems, Inc., 882 F.2d 6 (1st Cir. 1989), Douglas R. Davis
Washington Law Review
Recently, commercial arbitrators' authority to award a full spectrum of remedies has greatly increased. In Raytheon Co. v. Automated Business Systems, Inc., the United States Court of Appeals for the First Circuit affirmed an arbitral award of punitive damages. The court upheld the award despite the arbitrators' failure to address a prehearing objection to the arbitrability of such sanctions. This Note concludes that courts should require arbitrators to resolve pre-hearing challenges to their authority and recommends that arbitrators interpret broadly-drafted arbitration clauses to encompass only traditional contract remedies.
Dispute Resolution In China, Robert F. Utter
Dispute Resolution In China, Robert F. Utter
Washington Law Review
It gives me great pleasure to submit this essay as part of a tribute to Professor Luvern Rieke. I first met him in his initial year of teaching contracts at the University of Washington, when I was a beginning law student. We later worked together in a variety of contexts including ecumenical religious projects; matters concerning domestic relations subjects when I served on the King County Superior Court bench; and on the Judicial Council, where I served as a member of the Washington State Supreme Court. To each role he brought a unique combination of personal qualities: he was thoughtful, …
Labor Law—Arbitration And Award—Limits To Arbitral Authority And A Standard Of Review For Arbitral Awards Against Successor Employers—United Steelworkers V. United States Gypsum Co., 492 F.2d 714 (5th Cir.), Cert. Denied 419 U.S. 998 (1974), Eric Richter
Washington Law Review
In United Steelworkers v. United States Gypsum Co. the Court of Appeals for the Fifth Circuit reviewed an arbitral award against a successor employer. In so doing, the court applied the doctrine which traditionally has governed arbitration awards against parties who have contracted to arbitrate. This note will examine the arbitral process in Gypsum against the background of the successor's duty to arbitrate and the standards evolved to govern this arbitration process. It concludes that the special circumstances under which the successor employer faces arbitration require imposition of cognizable limits on the authority of the arbitrator, subject to the review …
International Commercial Arbitratikon Under The United Nations Convention And The Amended Federal Arbitration Statute, Donald P. Swisher
International Commercial Arbitratikon Under The United Nations Convention And The Amended Federal Arbitration Statute, Donald P. Swisher
Washington Law Review
With little fanfare the United States in 1970 revolutionized its treatment of private international arbitration by acceding to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and by amending the federal arbitration statutes to give extremely broad effect to the arbitral remedy in most international transactions. As a result, a party with an agreement to arbitrate an international commercial dispute to which the new enactments apply can look to the federal courts and federal law for enforcement of the agreement to arbitrate and for recognition of the award of the arbitrators, regardless of whether the …
Labor Arbitration: A Dissenting View, By Paul R. Hays (1966), Robert S. Hunt
Labor Arbitration: A Dissenting View, By Paul R. Hays (1966), Robert S. Hunt
Washington Law Review
No abstract provided.
Labor Arbitration: A Dissenting View, By Paul R. Hays (1966), Robert S. Hunt
Labor Arbitration: A Dissenting View, By Paul R. Hays (1966), Robert S. Hunt
Washington Law Review
No abstract provided.
Arbitration In U.S./Japanese Sales Disputes, Taro Kawakami, Dan Fenno Henderson
Arbitration In U.S./Japanese Sales Disputes, Taro Kawakami, Dan Fenno Henderson
Washington Law Review
But one area where the usefulness of arbitration is recognized almost universally is international business such as U.S./Japanese sales under discussion here. On reflection the reasons are not altogether happy ones, for most of the benefits as seen by the proponents of arbitration seem to flow largely from the inadequacies of litigation, which are especially pronounced in the transnational context. What are some of the difficulties peculiar to transnational litigation? In the U.S./Japanese context they include: differences of jurisdictional requirements; uncertainty about which law will be found to govern an international contract under current choice-of-law rules; uncertainty even as to …
Arbitration Clauses And Fraudulent Inducement, Anon
Arbitration Clauses And Fraudulent Inducement, Anon
Washington Law Review
Plaintiff and defendant entered into a contract containing a provision that "any controversy or claim arising out of or relating to this Agreement... shall be settled by arbitration." A dispute arose and defendant demanded arbitration. Plaintiff brought an action in federal district court to rescind the contract on the ground of fraudulent inducement, moving to stay arbitration. Defendant cross-moved to stay trial pending arbitration. The district court granted defendant's motion and denied plaintiff's. The Second Circuit Court of Appeals affirmed. Held: Unless there is an allegation that the arbitration provision itself was fraudulently induced, an issue of fraudulent inducement of …
Arbitration In U.S./Japanese Sales Disputes, Taro Kawakami, Dan Fenno Henderson
Arbitration In U.S./Japanese Sales Disputes, Taro Kawakami, Dan Fenno Henderson
Washington Law Review
But one area where the usefulness of arbitration is recognized almost universally is international business such as U.S./Japanese sales under discussion here. On reflection the reasons are not altogether happy ones, for most of the benefits as seen by the proponents of arbitration seem to flow largely from the inadequacies of litigation, which are especially pronounced in the transnational context. What are some of the difficulties peculiar to transnational litigation? In the U.S./Japanese context they include: differences of jurisdictional requirements; uncertainty about which law will be found to govern an international contract under current choice-of-law rules; uncertainty even as to …
Arbitration Clauses And Fraudulent Inducement, Anon
Arbitration Clauses And Fraudulent Inducement, Anon
Washington Law Review
Plaintiff and defendant entered into a contract containing a provision that "any controversy or claim arising out of or relating to this Agreement... shall be settled by arbitration." A dispute arose and defendant demanded arbitration. Plaintiff brought an action in federal district court to rescind the contract on the ground of fraudulent inducement, moving to stay arbitration. Defendant cross-moved to stay trial pending arbitration. The district court granted defendant's motion and denied plaintiff's. The Second Circuit Court of Appeals affirmed. Held: Unless there is an allegation that the arbitration provision itself was fraudulently induced, an issue of fraudulent inducement of …
Some Confusing Matters Relating To Arbitration In Washington, Wesley A. Sturges, William W. Sturges
Some Confusing Matters Relating To Arbitration In Washington, Wesley A. Sturges, William W. Sturges
Washington Law Review
A review of the case law and statutes of the state of Washington relating to arbitration points up several issues which are of importance to those who may become concerned with arbitrations in the state of either commercial or labor controversies. Some of these issues result from the views which were advanced by the supreme court relating to the arbitration statute of 1881. These issues are still open, although that statute was repealed by the present act, which was originally enacted in 1943. Other uncertainties inhere in the views which have been advanced by the court since the enactment of …
The 1943 Washington Arbitration Act, John C. Braman
The 1943 Washington Arbitration Act, John C. Braman
Washington Law Review
Changes in the arbitration laws of the State of Washington effected by the 1943 Act, can be expected to increase the effectiveness of written arbitration agreements as a means of settling controversies. The new act is patterned after the old Washington act of 1881, which was repealed in toto, but its scope is larger and it is more specific in providing legal machinery for the conduct of arbitration.
The Settlement Of Disputes By Arbitration, Alfred N. Heuston
The Settlement Of Disputes By Arbitration, Alfred N. Heuston
Washington Law Review
A movement has recently gained considerable headway in this country to overturn the well settled common law rule that executory agreements to arbitrate disputes are revocable." Congress and the legislatures of New York, New Jersey, Massachusetts, and Oregon have recently enacted laws designed to effect this result. Where such laws are in force it is no longer possible for one to enter into a solemn agreement with another to arbitrate in case any dispute should arise, and later, when a dispute has arisen, resort directly to the courts, in total disregard of such agreement.