Open Access. Powered by Scholars. Published by Universities.®
- Institution
- Publication Year
Articles 1 - 30 of 36
Full-Text Articles in Law
Mass Arbitration 2.0, Andrew B. Nissensohn
Mass Arbitration 2.0, Andrew B. Nissensohn
Washington and Lee Law Review
Over the past four decades, corporate interests, in concert with the Supreme Court, have surgically dismantled the American civil litigation system. Enacted nearly a century ago, the Federal Arbitration Act (FAA) was once a procedural law mandating that federal courts enforce arbitration agreements between sophisticated parties with equal bargaining power. Through death by a thousand cuts, corporate interests shielded themselves from nearly all methods of en masse dispute resolution. These interests weaponized the FAA into a “one size fits all” means to compel potential litigants with unequal bargaining power into arbitration. The so-called “Arbitration Revolution” is the subject of much …
Does Rigorously Enforcing Arbitration Agreements Promote “Autonomy”?, Hiro N. Aragaki
Does Rigorously Enforcing Arbitration Agreements Promote “Autonomy”?, Hiro N. Aragaki
Indiana Law Journal
In recent years, the U.S. Supreme Court has helped transform arbitration law into a radical private-ordering regime in which freedom of contract has come to eclipse public regulation. Arbitration jurisprudence justifies this transformation in part on a profound and longstanding commitment to the ideal of individual autonomy, understood as the freedom—lacking in litigation—to select a disputing process best suited to one’s needs.
In this Article, I question the cogency of this justification. I argue, first, that autonomy has had different and sometimes conflicting meanings even within arbitration jurisprudence. Second, depending on the meaning one ascribes to autonomy, it is at …
Employment Arbitration Reform: Preserving The Right To Class Proceedings In Workplace Disputes, Javier J. Castro
Employment Arbitration Reform: Preserving The Right To Class Proceedings In Workplace Disputes, Javier J. Castro
University of Michigan Journal of Law Reform
The recent judicial enforcement of class waivers in arbitration agreements has generated ample debate over the exact reach of these decisions and their effects on the future of collective action for consumers and employees. In AT&T Mobility v. Concepcion, a 5-4 majority of the Supreme Court majority held that the Federal Arbitration Act (FAA) preempted state laws prohibiting companies from incorporating class action waivers into arbitration agreements. The Court upheld such waivers on the grounds that they are consistent with the language and underlying purpose of the FAA. Most courts across the country have since reinforced the strong federal policy …
The Unjustified Furor Over Securities Arbitration, Gilbert R. Serota
The Unjustified Furor Over Securities Arbitration, Gilbert R. Serota
Pepperdine Law Review
No abstract provided.
Determining Arbitrability Of The Dispute: The Clear And Unmistakable Standard For Choice Of Law In Arbitration Agreements , Kristen Sanocki
Determining Arbitrability Of The Dispute: The Clear And Unmistakable Standard For Choice Of Law In Arbitration Agreements , Kristen Sanocki
Journal of Dispute Resolution
This note will also address the "clear and unmistakable" standard adopted by the Ninth Circuit and used to determine whether or not parties have agreed to apply non-federal arbitrability law. Based on the Ninth Circuit's reasoning in Cape Flattery Ltd. v. Titan Mar., LLC, this Note concludes that the court properly extracted a standard normally used to determine whether a court decides arbitrability as applicable to determining whether parties have sufficiently contracted for non-federal arbitrability law. Lastly, this Note will address the interpretation of arbitration clauses under federal law.
First Options Of Chicago, Inc. V. Kaplan And The Kompetenz-Kompetenz Principle , Adrianna Dulic
First Options Of Chicago, Inc. V. Kaplan And The Kompetenz-Kompetenz Principle , Adrianna Dulic
Pepperdine Dispute Resolution Law Journal
In 1995, the United States Supreme Court in First Options of Chicago, Incorporated v. Kaplan considered whether arbitral tribunals or courts should have the primary power to decide if parties agreed to arbitrate the merits of the dispute and whether the court of appeals should accept the district court's findings of fact and law or apply a de novo standard of review. The Court unanimously held that, unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitral tribunal. Furthermore, in such a case, …
Charge Me, Pay Me, But Don't Even Think Of Litigating Me: The Dominance Of Arbitration In Truth-In-Lending Claims , M. Susan Hale
Charge Me, Pay Me, But Don't Even Think Of Litigating Me: The Dominance Of Arbitration In Truth-In-Lending Claims , M. Susan Hale
Pepperdine Dispute Resolution Law Journal
This article analyzes the impact of the courts' ever increasing priority to enforce arbitration agreements in Truth In Lending Act (TILA) claims and reform. Part I entails a general discussion of TILA's logistics; the goals, the means, and the remedies. Part II briefly traces the rise of arbitration as well as evaluating its various advantages and disadvantages. Part III reports on the current emphasis of enforcing arbitration agreements in federal courts by explaining the basis of enforcing the agreement. Part IV explores the impact of arbitrating TILA claims on the claim and on individuals. Part V provides an analysis of …
The State Of Arbitral Fees After Green Tree Financial: Uncertainty And Contradiction Demands Further Guidance From The Supreme Court, Kevin C. Clark
The State Of Arbitral Fees After Green Tree Financial: Uncertainty And Contradiction Demands Further Guidance From The Supreme Court, Kevin C. Clark
Pepperdine Dispute Resolution Law Journal
There are millions of employees in America who work every day without regard to the technical and seemingly mundane matters that govern their employment. What they don't realize however, is that their employment may be governed by an arbitration agreement. The terms of the arbitration agreement may be unclear until a dispute arises. This is particularly applicable in the area of arbitral fees, where there is a split among United States Courts of Appeals when addressing the issue of who should pay the fees arising from the arbitration of employment disputes. This fissure in American jurisprudence is the subject of …
Will Eeoc V. Waffle House, Inc. Signal The Beginning Of The End For Mandatory Arbitration Agreements In The Employment Context? , Marc A. Altenbernt
Will Eeoc V. Waffle House, Inc. Signal The Beginning Of The End For Mandatory Arbitration Agreements In The Employment Context? , Marc A. Altenbernt
Pepperdine Dispute Resolution Law Journal
Since the inception of several employment and discrimination statutes, arbitration has grown exponentially as an alternative for the adjudication of employment disputes. The Supreme Court has traditionally held that statutory claims are indeed arbitrable pursuant to a valid arbitration agreement under the Federal Arbitration Act ("FAA"). In an effort to end employment discrimination based on "race, color, religion, sex, or national origin," Congress enacted the Civil Rights Act of 1964 ("Title VII"). In order to adequately effect this calling, the Equal Employment Opportunity Commission ("EEOC") was created as the Act's primary enforcement mechanism. While arbitration agreements under the FAA and …
Reframing The Dilemma Of Contractually Expanded Judicial Review: Arbitral Appeal Vs. Vacatur , Eric Van Ginkel
Reframing The Dilemma Of Contractually Expanded Judicial Review: Arbitral Appeal Vs. Vacatur , Eric Van Ginkel
Pepperdine Dispute Resolution Law Journal
The Federal Arbitration Act ("FAA") of 1925 was created to ensure enforceability of agreements to arbitrate. The FAA is the centerpiece of the federal arbitration policy as construed by the Supreme Court. Section 10(a) FAA enumerates grounds on which an arbitral award can be set aside. The central issue discussed herein is whether parties can agree by contract to allow one of the parties to initiate review of the arbitral award by a court that would otherwise have jurisdiction over those parties, or whether the court's powers are somehow limited to the grounds for vacatur enumerated in Section 10(a) FAA. …
Sailing Around Erie: The Emergence Of A Federal General Common Law Of Arbitration , Kenneth F. Dunham
Sailing Around Erie: The Emergence Of A Federal General Common Law Of Arbitration , Kenneth F. Dunham
Pepperdine Dispute Resolution Law Journal
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.
A Fighting Chance: The Proposed Servicemembers Access To Justice Act & Its Potential Effects On Binding Arbitration Agreements, Sean M. Hardy
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 …
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.
Unconscionable Construction: How The Ninth Circuit Evades The Faa By Severing Arbitration Agreements As Unconscionable Note, Daniel B. Mitchell
Unconscionable Construction: How The Ninth Circuit Evades The Faa By Severing Arbitration Agreements As Unconscionable Note, Daniel B. Mitchell
Journal of Dispute Resolution
Bridge Fund Capital Corp. v. FastBucks Franchise Corp. illustrates a recent manifestation of an ongoing judicial hostility to arbitration. As the Supreme Court has developed its FAA jurisprudence to limit the severance of arbitration agreements, many lower courts have continued to develop legal justifications to circumvent these restrictions. The FAA's savings clause does afford some latitude for severance of arbitration agreements, but the Supreme Court has not yet defined the limits of the savings clause, nor whether the general contract defense and their justifications are sufficient to supersede FAA policy. Bridge Fund shows how the doctrine of unconscionability it being …
Sweet Vindication: The Second Circuit Strikes A Blow To Companies That Use Class-Action Waivers In Arbitration Agreements To Avoid The Law, Samuel E. Buffaloe
Sweet Vindication: The Second Circuit Strikes A Blow To Companies That Use Class-Action Waivers In Arbitration Agreements To Avoid The Law, Samuel E. Buffaloe
Journal of Dispute Resolution
Other scholars and courts have concluded that when a class action waiver prevents a plaintiff from vindicating his statutory rights, that waiver should be unenforceable. The U.S. Court of Appeals for the Second Circuit took this approach in In re American Express Merchants' Litigation. The court, however, was careful to point out that these class-action waivers should not be considered unenforceable per se, but that courts must examine each waiver on a case-by-case basis. This note will examine the court's reasoning and will discuss what courts and Congress should do to protect consumers when companies use class-action waivers to avoid …
No Exceptions: How The Legitimate Business Justification For Unconscionability Only Further Demonstrates California Courts' Disdain For Arbitration Agreements, Thomas H. Riske
Journal of Dispute Resolution
In Davis v. O'Melveny & Myers, the Ninth Circuit Court of Appeals considered whether an arbitration agreement adopted by a law firm and distributed to its employees was enforceable. When interpreting an arbitration agreement, how the contract doctrine of unconscionability should be applied by state courts, is an essential element of this case. While the Federal Arbitration Act ("FAA") has been interpreted to preempt any state law in conflict with it, state laws governing the necessary foundation to revoke a contract remain unaffected. In considering these principles, state courts have applied the doctrine of unconscionability to arbitration agreements in the …
Suing For Small Potatoes: Consumer Class Action Waivers In Arbitration Agreements Distinguished By The Ninth Circuit, Jaimee Conley
Suing For Small Potatoes: Consumer Class Action Waivers In Arbitration Agreements Distinguished By The Ninth Circuit, Jaimee Conley
Journal of Dispute Resolution
In Shroyer, the Ninth Circuit laid a foundation for looking at consumer class action arbitration waivers with greater scrutiny, using a much narrower test. In doing so, it communicates a clear message to large corporations that arbitration agreements that include class action waivers for the purpose of cheating consumers out of small amounts of money will not be tolerated. This case note will address the significance of the Ninth Circuit's decision and the policy arguments supporting such an approach.
New Judicial Hostility To Arbitration: Federal Preemption, Contract Unconscionability, And Agreements To Arbitrate, The, Steven J. Burton
New Judicial Hostility To Arbitration: Federal Preemption, Contract Unconscionability, And Agreements To Arbitrate, The, Steven J. Burton
Journal of Dispute Resolution
Part I of this Article sketches the basics of arbitration law and practice, and traces the development of the federal policy favoring arbitration, to establish a basis for evaluating contemporary judicial decisions. Part II examines the justification for the policy favoring arbitration and the reasons contracting parties may prefer arbitration. Part III evaluates the reasons courts give for finding arbitration agreements in employment and consumer contexts unconscionable, and therefore, unenforceable. The conclusion is that many courts make many clearly erroneous decisions, including decisions that are unconstitutional because they are preempted.
Parties To International Commercial Arbitration Agreements Beware: Bankruptcy Trumps Supreme Court Precedent Favoring Arbitration Of International Disputes, Lindsay Biesterfeld
Parties To International Commercial Arbitration Agreements Beware: Bankruptcy Trumps Supreme Court Precedent Favoring Arbitration Of International Disputes, Lindsay Biesterfeld
Journal of Dispute Resolution
Phillips v. Congelton (In re White Mountain Mining Co.), presents a heightened version of the conflict between the general policy favoring enforcement of arbitration agreements and the policy favoring resolution of bankruptcy-related claims in the bankruptcy court proceedings as the case involves a dispute over the enforcement of an international agreement to arbitrate a claim that is a "core" bankruptcy proceeding. In Phillips, the Fourth Circuit analyzed the underlying purposes of both the bankruptcy code and the federal arbitration statutes, and resolved the conflicting purposes of the two by giving greater deference to the policy favoring resolution of bankruptcy-related claims …
Interlocutory Appeals Under The Federal Arbitration Act And The Effect On The District Court’S Proceedings, Michael P. Winkler
Interlocutory Appeals Under The Federal Arbitration Act And The Effect On The District Court’S Proceedings, Michael P. Winkler
Oklahoma Law Review
No abstract provided.
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 …
On Hostile Ground: Ohio's Notice To Insolvent Insurance Companies With Arbitration Agreements - Bejamin V. Pipoly, Frank C. Koranda Jr.
On Hostile Ground: Ohio's Notice To Insolvent Insurance Companies With Arbitration Agreements - Bejamin V. Pipoly, Frank C. Koranda Jr.
Journal of Dispute Resolution
In Benjamin v. Popoly, the Court of Appeals of Ohio reviewed whether the liquidator of an insolvent insurance company have the power to avoid the enforcement of arbitration agreements. The court held that the broad statutory power conferred to a liquidator permitted them to affirm or disavow any contracts made by the insolvent insurance companies, including any contractual provisions for the arbitration of disputes. The court also expressly overruled prior Ohio case law regarding the status of arbitration agreements in insurance insolvency.
Going Dutch: Should Employees Have To Split The Costs Of Arbitration In Disputes Arising From Mandatory Employment Arbitration Agreements - Morrison V. Circuit City Stores, Inc., John F. Crawford
Journal of Dispute Resolution
Employers often require their employees to sign arbitration agreements as a condition of employment, obligating employees to submit their disputes with employers to binding arbitration. These agreements may include terms, such as cost splitting provisions, that may be advantageous to the employer, but extremely limiting to an employee seeking to enforce her statutory rights. The United States Supreme Court has yet to set out a clear position about whether an employee, by signed agreement, can be required to pay all or part of the arbitration fees and costs when the employee submits a statutory claim to arbitration. Federal district courts …
To Sever Or To Destroy: The Eighth Circuit Allows Invalid Provisions To Be Served From Otherwise Enforceable Arbitration Agreements, Michael K. Daming
To Sever Or To Destroy: The Eighth Circuit Allows Invalid Provisions To Be Served From Otherwise Enforceable Arbitration Agreements, Michael K. Daming
Journal of Dispute Resolution
The Federal Arbitration Act ("FAA") allows for arbitration to be a medium by which parties may settle disputes more expeditiously than litigation. The FAA declares specifically that written agreements to resolve disputes through arbitration are "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.,' 2
Arbitration Agreements In Labor And Employment Contracts: Well Within The Reach Of The Faa - Circuit City Stores, Inc. V. Adams, Lisa M. Eaton
Arbitration Agreements In Labor And Employment Contracts: Well Within The Reach Of The Faa - Circuit City Stores, Inc. V. Adams, Lisa M. Eaton
Journal of Dispute Resolution
Despite a series of decisions where the Supreme Court has upheld the use of arbitration in the employment context, the Court has never clearly stated that arbitration agreements contained in employment contracts fall under the Federal Arbitration Act (FAA). This omission has led to a split in the Circuits as to the scope of the FAA coverage ad exemption provisions. The controversy centers on whether the FAA covers all employment contracts except those of employees who transport people or goods in interstate commerce or whether the FAA exempts all employment contracts.
Paying The Price Of Process: Judicial Regulation Of Consumer Arbitration Agreements, Stephen J. Ware
Paying The Price Of Process: Judicial Regulation Of Consumer Arbitration Agreements, Stephen J. Ware
Journal of Dispute Resolution
Arbitration clauses now appear in many of the form contracts through which consumers obtain goods, services and credit.' Why do so many businesses that deal with consumers choose arbitration? Relative to litigation, arbitration provides opportunities for a business to save on its dispute-resolution costs. If arbitration does, in fact, lower these costs then arbitration lowers the prices (and interest rates) consumers pay because competition forces businesses to pass their cost-savings on to consumers.
Fallacy Of Duffield V. Robertson And Rosenberg V. Merrill Lynch: The Continuing Viability Of Mandatory Pre-Dispute Title Vii Arbitration Agreements In The Post-Civil Rights Act Of 1991 Era, The, Kristen Decker, William Krizner
Fallacy Of Duffield V. Robertson And Rosenberg V. Merrill Lynch: The Continuing Viability Of Mandatory Pre-Dispute Title Vii Arbitration Agreements In The Post-Civil Rights Act Of 1991 Era, The, Kristen Decker, William Krizner
Journal of Dispute Resolution
Two recent decisions, one in the Ninth Circuit and one in a Massachusetts District Court, have erroneously held that mandatory Title VII pre-dispute arbitration clauses are unenforceable under the Civil Rights Act of 1991.' A statutory construction analysis of the 1991 Civil Rights Act demonstrates that Congress did not intend to abolish the use of such clauses. Instead, Congress intended to support the use of mandatory pre-dispute arbitration as a valid and useful forum for the resolution of disputes arising under Title VII of the Civil Rights Act of 1964. The purpose of the following Article is twofold. First, this …
Arbitration Agreements: Should A Union Be Allowed To Make Collective Bargaining Agreements That Bind Individuals' Federal Statutory Claims To Arbitration - Brisentine V. Stone & (And) Webster Engineering Corp., Troy Groat
Journal of Dispute Resolution
With the constant increase of employment litigation2 among individuals, unions and companies, the use of arbitration clauses continues to grow each day. While it is clear that arbitration clauses can be beneficial, it is not clear when and in what situations they should be binding, and hence, waive the rights of parties to have their day in court. Against this backdrop, the Brisentine court faced the issue of whether a union, when making a collective bargaining agreement, can bind individual employee's federal statutory rights to arbitration
Arbitration Agreements: Standard Of Review, Interpretation And Who Is Bound - Kenamerican Resources, Inc. V. International Union, United Mine Workers Of America, Shea Welch
Journal of Dispute Resolution
In KenAmerican Resources, Inc. v. International Union, United Mine Workers of America, the United States Court of Appeals for the District of Columbia Circuit found that a corporation which did not sign an arbitration agreement entered into by an individual who owned both that company, KenAmerican Resources, Inc., and the company that was clearly bound to the arbitration agreement, Ohio Valley Resources, Inc., was not bound by the arbitration agreement. 2 This was because the agent who signed the agreement, Robert Murray, was not acting on KenAmerican's behalf.3
Physician-Patient Arbitration Agreements: Procedural Safeguards May Not Be Enough - Buraczynski V. Eyring, Jennifer Gillespie
Physician-Patient Arbitration Agreements: Procedural Safeguards May Not Be Enough - Buraczynski V. Eyring, Jennifer Gillespie
Journal of Dispute Resolution
Insurance companies and physicians increasingly are requiring medical malpractice claims to be settled by arbitration.2 As a result, many patients are being presented with a new choice when they enter their doctor's office: Sign an arbitration agreement or forgo treatment with their physician. In Buraczynski v. Eyring, the physician required the patients to sign an arbitration agreement prior to performing medical services for them? The agreement contained provisions designed to ensure that the patient made an informed decision before consenting to the agreement.4 But what if there were no other doctors available if the patient chose not to sign?