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Articles 1 - 8 of 8
Full-Text Articles in Law
Resolving Mass Legal Disputes Through Class Arbitration: The United States And Canada Compared, S. I. Strong
Resolving Mass Legal Disputes Through Class Arbitration: The United States And Canada Compared, S. I. Strong
Faculty Publications
This article compares three issues that have arisen as a result of recent Supreme Court decisions in both countries: the circumstances in which class arbitration is available; the procedures that must or may be used; and the nature of the right to proceed as a class. In so doing, the article not only offers valuable lessons to parties in the U.S. and Canada, but also provides observers from other countries with a useful framework for considering issues relating to the intersection between collective relief and arbitration.
From Supreme Court To Shopfloor: Mandatory Arbitration And The Reconfiguration Of Workplace Dispute Resolution, Alexander Colvin
From Supreme Court To Shopfloor: Mandatory Arbitration And The Reconfiguration Of Workplace Dispute Resolution, Alexander Colvin
Alexander Colvin
[Excerpt] In a series of court battles during the 1990s, employers successfully defended the use of mandatory employment arbitration against challenges that the procedures inherently undermined the statutory rights of employees. Efforts to introduce legislation in Congress aimed at reversing the Gilmer decision were unsuccessful. In 2001, the Supreme Court reaffirmed its acceptance of mandatory arbitration to resolve employment disputes in Circuit City Stores, Inc. v. Adams. However, some courts have been willing to strike down arbitration procedures that contain particularly egregious violations of due process. For example, courts have refused to enforce arbitration agreements that restrict employee damage awards, …
Faa Law, Without The Activism: What If The Bellwether Cases Were Decided By A Truly Conservative Court, Richard C. Reuben
Faa Law, Without The Activism: What If The Bellwether Cases Were Decided By A Truly Conservative Court, Richard C. Reuben
Faculty Publications
The U.S. Supreme Court has decided an extraordinary number of cases under the Federal Arbitration Act in the last half century, a pattern that continues today at the pace of a case or two a year. During this time, Republican presidential candidates have made much political hay out of the Supreme Court, running against the Warren Court’s “liberal activism” by promising to appoint judges who would decide cases more conservatively. In this article, I analyze whether this promise has been fulfilled in the context of the Supreme Court’s FAA jurisprudence by identifying the core principles of judicial conservatism – restraint, …
United States Supreme Court And Class Arbitration: A Tragedy Of Errors, The Symposium, Gary Born, Claudio Salas
United States Supreme Court And Class Arbitration: A Tragedy Of Errors, The Symposium, Gary Born, Claudio Salas
Journal of Dispute Resolution
This Essay describes and critiques the U.S. Supreme Court's recent misadventures with class arbitration. First, the Essay reviews the origins and rise of class arbitration under the FAA, particularly following the Supreme Court's Bazzle decision. In Part II, the Essay discusses application of the unconscionability doctrine to class action waivers, under the California courts' Discover Bank doctrine. In Part III, the Essay recounts the Supreme Court's retrenchment from class arbitration in Stolt-Nielsen and, more fully, in Concepcion. It also critiques the Court's apparent analysis in Concepcion and offers an alternative analysis for the Concepcion result that is more consistent with …
Tainted Love: An Increasingly Odd Arbitral Infatuation In Derogation Of Sound And Consistent Jurisprudence, Jeffrey W. Stempel
Tainted Love: An Increasingly Odd Arbitral Infatuation In Derogation Of Sound And Consistent Jurisprudence, Jeffrey W. Stempel
Scholarly Works
No abstract provided.
Legal Process In A Box, Or What Class Action Waivers Teach Us About Law-Making, Rhonda Wasserman
Legal Process In A Box, Or What Class Action Waivers Teach Us About Law-Making, Rhonda Wasserman
Articles
The Supreme Court’s decision in AT&T Mobility v. Concepcion advanced an agenda found in neither the text nor the legislative history of the Federal Arbitration Act. Concepcion provoked a maelstrom of reactions not only from the press and the academy, but also from Congress, federal agencies and lower courts, as they struggled to interpret, apply, reverse, or cabin the Court’s blockbuster decision. These reactions raise a host of provocative questions about the relationships among the branches of government and between the Supreme Court and the lower courts. Among other questions, Concepcion and its aftermath force us to grapple with the …
Advisory Adjudication, Girardeau A. Spann
Advisory Adjudication, Girardeau A. Spann
Georgetown Law Faculty Publications and Other Works
The Supreme Court decision in Camreta v. Greene is revealing. The Court first issues an opinion authorizing appeals by prevailing parties in qualified immunity cases, even though doing so entails the issuance of an advisory opinion that is not necessary to resolution of the dispute between the parties. And the Court then declines to reach the merits of the underlying constitutional claim in the case, because doing so would entail the issuance of an advisory opinion that was not necessary to the resolution of the dispute between the parties. The Court's decision, therefore, has the paradoxical effect of both honoring …
Purpose, Precedent, And Politics: Why Concepcion Covers Less Than You Think, Michael A. Helfand
Purpose, Precedent, And Politics: Why Concepcion Covers Less Than You Think, Michael A. Helfand
Michael A Helfand
This article sketches some possible limitations on the impact AT&T Mobility v. Concepcion will have going forward. While many have seen the Supreme Court’s decision as simultaneously signaling an end to the viability of class action lawsuits and undermining principles of federalism, there may be reasons to believe that it will not have implications quite so far reaching. Specifically, this article proposes three reasons why Concepcion’s impact may be limited. First, the decision lends itself to a more narrow reading, which simply demands that courts take the entire of an arbitration agreement into account before deploying common law defenses to …