Law Commons^™

Class Arbitration Waivers Cannot Be Found Unconscionable: A Pervasive And Common "Mis-Concepcion", Emma Silberstein

Northwestern University Law Review

In 1925, Congress enacted the Federal Arbitration Act (FAA) as a means of quelling judicial hostility towards arbitration agreements, providing a mechanism for the enforcement of such agreements. The Supreme Court’s treatment and application of the FAA has evolved over time, and in recent decades the FAA has been massively extended to cover not only arm’s-length commercial transactions, but consumer and employment contracts as well. The Supreme Court, its previous hostile stance long forgotten, has created a policy of favoring arbitration and striking down many an argument that may interfere with that policy. In particular, the Court solidified its position …

The Power Of Two Words To Split Circuits, Natalie Whitacre

University of Miami Law Review

28 U.S.C. § 1782 authorizes federal judges to grant assistance to a “foreign or international tribunal” for discovery proceedings. The meaning of the term “foreign or international tribunal” has been the subject of much dispute. In 2019 the Sixth Circuit became the first court of appeals to extend the purview of the statute to private commercial arbitration, creating a circuit split. However, the use of 28 U.S.C. § 1782 in arbitral proceedings raises a number of questions about whether U.S. style discovery would impede the efficiency of arbitration and whether the practice could be extended to international tribunals located within …

Our Courts, Ourselves: How The Alternative Dispute Resolution Movement Is Re-Shaping Our Legal System, Deborah R. Hensler

Dickinson Law Review (2017-Present)

Twenty-seven years ago, Professor Frank Sander urged American lawyers and judges to re-imagine the civil courts as a collection of dispute resolution procedures tailored to fit the variety of disputes that parties bring to the justice system. Professor Sander’s vision of the justice system encompassed traditional litigation leading to trial, but his speech at the 1976 Roscoe Pound Conference drew attention to alternatives to traditional dispute resolution that he argued would better serve disputants and society than traditional adversarial processes.

Today, interest in dispute resolution is high. This interest cuts across many domains, ranging from the family, to the schoolyard, …

Alternative Dispute Resolution For Election Access Issues In A Post-Voting Rights Act Section 5 Landscape, Casey Millburg

Arbitration Law Review

No abstract provided.

You Are Now Entering The School Zone, Proceed With Caution: Educators, Arbitration, & Children’S Rights, Raquel Muniz

Arbitration Law Review

No abstract provided.

The Iran-United States Claims Tribunal: The Effect Of Future Awards On International Terrorism, Casey J. College

Arbitration Law Review

No abstract provided.

Is My Case Mandamusable: A Guide To The Current State Of Texas Mandamus Law., Marialyn Barnard, Lorien Whyte, Emmanuel Garcia

St. Mary's Law Journal

It is important for all Texas lawyers to be knowledgeable about mandamus relief. Unfortunately, there is no bright line rule in terms of mandamus relief. The general rule for when mandamus relief may be granted is when the trial court clearly abused its discretion, and there is not an adequate remedy available from a court of appeals. A clear of abuse of discretion is determined if no other trial court would have come to the same conclusion. In deciding if mandamus relief is proper, appellate courts apply a balancing test. The appellate court considers several factors including: preserving relator’s substantive …

The Decline Of Civil Jury Trials: A Positive Development, Myth, Or The End Of Justice As We Now Know It?, Xavier Rodriguez

St. Mary's Law Journal

Jury participation is helpful in many respects. It fosters an understanding of the third branch of government and the workings of the judicial system. It offers the opportunity for individuals to serve in a unique role: neutral factfinder. Moreover, in an age of declining voter participation, jury service provides individuals with the opportunity to directly participate in our governmental structure. Despite these positive attributes, jury trials as we knew them are on the decline. That may or may not be problematic, depending on what types of cases are being impacted. Where parties have reached a voluntary and informed settlement on …

The Arbitration Of Federal Domestic Antitrust Claims: How Safe Is The American Safety Doctrine?, Bruce R. Braun

Pepperdine Law Review

No abstract provided.

Negotiating Better Superfund Settlements: Prospects And Protocols, Scott A. Cassel

Pepperdine Law Review

No abstract provided.

The Unjustified Furor Over Securities Arbitration, Gilbert R. Serota

Pepperdine Law Review

No abstract provided.

Implementation Of California's Dispute Resolution Programs Act: A State-Local Partnership, Mary-Alice Coleman

Pepperdine Law Review

No abstract provided.

Using Court-Annexed Arbitration To Reduce Litigant Costs And To Increase The Pace Of Litigation, John L. Barkai, Gene Kassebaum

Pepperdine Law Review

No abstract provided.

Introduction: Second Symposium Issue On Alternative Dispute Resolution , L. Randolph Lowry

Pepperdine Law Review

No abstract provided.

Arbitration Clauses In Fee Retainer Agreements., Chrissy L. Schwennsen

St. Mary's Journal on Legal Malpractice & Ethics

Due to the variety of approaches jurisdictions employ when determining the legal ramifications of arbitration clauses in fee retainer agreements, it’s best to include an explanation of the legal consequences of arbitration in the agreements. The attorney can, and should, fully explain the potential benefits of arbitration to clients. State courts take various viewpoints on the issue, and most stand contrary to the position of the American Bar Association (ABA) and state ethics committees on the subject. Consequently, attorneys must disclose truthful and accurate information regarding arbitration agreements when engaged in multijurisdictional practice in order to ensure protection from malpractice …

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 …

Judicial Policing Of Consumer Arbitration , Edward A. Dauer

Pepperdine Dispute Resolution Law Journal

Adhesive consumer arbitration agreements pose questions that go beyond the problems of adhesion contracting generally. This essay describes why standard-form consumer arbitration requirements may be particularly troublesome. Despite its superficial neutrality, arbitration between individual consumers and business entities may be systematically more favorable to the business entities. The rules of arbitration law, however, inhibit effective judicial policing of the consequences of those inequalities. The federal sources of arbitration law further diminish the ability of state-based contract law to police the more subtle abuses. The result is a particularly difficult jurisprudential problem with a specially weakened legal solution. This essay offers, …

Internet Dispute Resolution (Idr): Bringing Adr Into The 21st Century , Richard Michael Victorio

Pepperdine Dispute Resolution Law Journal

It was only a matter of time before ADR hit the Interet. The Internet has sweepingly transformed society just as ADR has wrought tremendous change in our society, by enabling the swift and economical settlement of disputes, and unclogging the legal system in the process. The application of alternative dispute resolution methods to the Internet, termed "iDR" in this comment, has the potential to impact the landscape of both traditional ADR and the Internet itself. It brings the communication technology of the Internet to the practice of traditional, non-virtual, "real world" ADR, reducing costs and speeding up the exchange of …

Renegotiating Third World Debt , Arash S. Arabi

Pepperdine Dispute Resolution Law Journal

The debt crisis facing the Third World is one so severe that it threatens to shatter the economy of countless nations and leaves the future of their lenders in doubt. The only viable solution is to come up with an "alternative" method of dispute resolution to deal with the debt crisis - one that is a cross between arbitration and mediation. A disinterested body should be created to recover some, or if possible, all of the outstanding loans owed to financial institutions, while alleviating the extreme hardships the debt and current debt repayment methods have inflicted. It should be noted, …

East Meets West: An International Dialogue On Mediation And Med-Arb In The United States And China, Thomas J. Stipanowich, Jung Yang, Jay Welsh, Chen Qiming, Peter Robinson, Tan Jinghui, Chen Guang, Jeff Kichaven, Denise Madigan, Wang Hongsong, Zhang Jianhua

Pepperdine Dispute Resolution Law Journal

This Second Beijing Arbitration Commission (BAC)/Straus Institute for Dispute Resolution International Videoconference, following up on last year's successful inaugural program, will provide different perspectives on the current BAC initiative and evolving attitudes toward mediation and med-arb. Topics include: (1) the development and current state of business mediation in the U.S.; (2) the challenges and opportunities confronting China in developing stand-alone business mediation; (3) reflections on the skills necessary for mediators; (4) common pitfalls in mediation; (5) perspectives on med-arb (as opposed to stand-alone mediation); and (6) how to most effectively use mediation in conjunction with arbitration procedures.

Outward Bound To Other Cultures: Seven Guidelines For U.S. Dispute Resolution Trainers, Harold Abramson

Pepperdine Dispute Resolution Law Journal

"Would you like to go to Delhi to train people in negotiations?" the email message inquires. "Are you kidding?" you think to yourself. "Of course, I would get to do in an exotic location what I enjoy doing at home – helping others to resolve conflicts. And I also would meet fascinating people and tour an intriguing city and country with a local host." "YES," you reply after working out the logistical details. Now as you begin to pack your off-the-shelf training materials, you start to wonder how you should adapt your training for this foreign location. You do not …

Probing The Legitimacy Of Mandatory Mediation: New Roles For Judges, Mediators, And Lawyers., Tracy Walters Mccormack, Susan Schultz, James Mccormack

St. Mary's Journal on Legal Malpractice & Ethics

This Article probes the fundamental assumptions behind the use of mandatory or court-ordered mediation. The authors question the predominant use of standing rules or judicial practices referring cases to mediation. These referrals are inconsistent with the traditional roles of judges and courts, exclude the public from the justice system, and allow repeat players to develop a private justice system with little to no oversight. The Article questions why judges allow and encourage mandatory mediation and calls for all participants to take a more active role in the process. Based on surveys of judges, mediators, and lawyers, the Article exposes troublesome …

Civil Jury Trials R.I.P. - Can It Actually Happen In America Essay., Royal Furgeson

St. Mary's Law Journal

Civil jury trials in America have been declining at a steady rate for the last thirty years. This is a well-documented trend. If the trend continues, within the foreseeable future, civil jury trials in American may eventually become extinct. Jury trials have been central to justice in America and its states since their inception. Their importance has been stated as bringing accountability to the law and to society. As all persons, even the powerful and wealthy ones, are accountable under the law. Yet, as important as juries and jury trials are to the health of justice in America, the civil …

Judicial Review Of Arbitration Awards In The Fifth Circuit., Christopher D. Kratovil

St. Mary's Law Journal

In the wake of a defeat in arbitration, trial lawyers seek appellate counsel looking for some method to escape the arbitrator’s decision. Most leave such offices disappointed after having been informed arbitration awards will be set aside by the courts “only in very unusual circumstances.” The Federal Arbitration Act (FAA) fully endorses arbitration and liberally encourages its use as an alternative to traditional litigation. Consistent with Congress’ focus on speed, efficiency, and cost reduction, a critical goal of arbitration is to establish “finality” at the earliest possible point. Unfortunately, early finality is antithetical to robust appellate proceedings. Yet, the FAA …

International Legal Malpractice: Not Only Will The Dog Eventually Bark, It Will Also Bite The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility: Essay., Ethan S. Burger

St. Mary's Law Journal

The internationalization of legal practice presents numerous issues for lawyers, such as obtaining qualifications to practice law in foreign jurisdictions and developing the necessary knowledge. Different and possibly conflicting notions of standards of care and professional responsibility will arise. Globalization is widely regarded as the principal driving force in international economic and political relations. From the standpoint of business activity there are myriad ways to assess the impact of globalization. These include tracking rates of exchange, observing altered methods, or examining how attitudes and information has changed. Globalization has increased the demand for specialized accounting and legal services connected with …

The Arbitration Of Private Commercial Disputes Between Residents Of Texas And Mexico., Wayne I. Fagan, Carlos Gabuardi Arreola

St. Mary's Law Journal

This paper evaluates whether the Texas International Arbitration Act (TIAA) will be a helpful addition to the laws governing arbitration of private commercial disputes between residents of Texas and Mexico. Owing to differences among cultures, languages, and legal systems, attorneys in the United States and in Mexico are turning to binding arbitration for the resolution of international disputes. Texas enacted an International Arbitration Act in 1989 to foster expanded international trade and facilitate resolution of international commercial disputes through conciliation and arbitration. Proponents of international arbitration argue it is the method of choice for resolution of private commercial disputes due …

Revisiting Standards Of Review In Civil Appeals., W. Wendell Hall

St. Mary's Law Journal

Applying and defining the accurate standard of review determines how likely an appeal will be successful. While the proper standard of review may be easy to identify, applying the standard of review to a case is often problematic. The standards define the interactions between trial and appellate courts by distributing the power of review throughout the judicial branch. The standards of review also limit a court’s authority to determine an error by a trial court, and whether the error warrants reversal. The standard sets the requirements of substantive law and provides a means for appellate judges to weigh arguments. This …

Cultural Neutrality: A Prerequisite To Arbitral Justice, Giorgio Bernini

Michigan Journal of International Law

In common parlance, neutrality is often equated with impartiality. Any such assimilation, however, would be incorrect, since neutrality and impartiality are intrinsically different. At the risk of oversimplification, neutrality may be defined as an objective status, i.e. the likelihood that the arbitrator will be, and remain, wholly equidistant in thought and action throughout the arbitral proceedings. Impartiality, on the contrary, partakes more of a subjective status, to be tested in the context of the concrete relations existing between the arbitrator(s) and each individual party. It follows that one can be impartial without being neutral; and conversely, that no arbitrator may …

A New Twist For Texas Lemon Owners., Ayala Alexopoulos

St. Mary's Law Journal

Twenty-five percent of the consumers with car warranty problems are dissatisfied with the complaint-handling process in the automobile industry and the result of their grievances. In response to the frustrations of defective car owners, Texas, along with many other states, passed a “lemon law” providing more definitive relief for consumer. Lemon laws provide a clearly defined cause of action against the manufacturer and provide the consumer with a low-cost, readily available mechanism for resolving their disputes. Most states’ lemon laws require the consumer to resort to arbitration provisions before initiating a court action if a manufacturer sets up a dispute …