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Articles 1 - 30 of 56
Full-Text Articles in Law
Blind Justice And Just Arbitrators: Understanding The Federal Arbitration Act’S Evident Partiality Standard, Heather Cameron
Blind Justice And Just Arbitrators: Understanding The Federal Arbitration Act’S Evident Partiality Standard, Heather Cameron
Fordham Law Review
Arbitral awards are intended to be binding on parties who subject their disputes to arbitration. However, an arbitrator’s bias in favor of one of the parties is one of the few grounds on which a party can object to such an award. The standard used to evaluate such bias is known as “evident partiality.” This Note examines two commonly used standards—referred to in this Note as the “possible impression” standard and the “likely actual bias” standard—deployed by U.S. courts to define evident partiality and determine whether the requirements for vacating an arbitral award have been fulfilled. This Note advocates that …
Contract Creep, Tal Kastner, Ethan J. Leib
Contract Creep, Tal Kastner, Ethan J. Leib
Faculty Scholarship
Scholars and judges think they can address the multiple purposes and values of contract law by developing different doctrinal regimes for different transaction types. They think if we develop one track of contract doctrine for sophisticated parties and another for consumers, we can build a better world of contract: protecting private ordering for sophisticated parties and protecting consumers’ needs all at once. Given the growing enthusiasm for laying down these separate tracks and developing their infrastructures, this Article brings a necessary reality check to this endeavor by highlighting for scholars and judges how doctrine in contract law functions in fact: …
Face Off: An Examination Of State Biometric Privacy Statutes & Data Harm Remedies, Maya E. Rivera
Face Off: An Examination Of State Biometric Privacy Statutes & Data Harm Remedies, Maya E. Rivera
Fordham Intellectual Property, Media and Entertainment Law Journal
As biometric authentication becomes an increasingly popular method of security among consumers, only three states currently have statutes detailing how such data may be collected, used, retained, and released. The Illinois Biometric Information Privacy Act is the only statute of the three that enshrines a private right of action for those who fail to properly handle biometric data. Both the Texas Capture or Use Biometric Identifier Act Information Act and the Washington Biometric Privacy Act allow for state Attorneys General to bring suit on behalf of aggrieved consumers. This Note examines these three statutes in the context of data security …
A Tale Of Two Trade Powers: Balancing Investor-State Dispute Settlement And Environmental Risk Between The European Union And United States In A Changing Political Climate, Sarah Ben-Moussa
Fordham Environmental Law Review
No abstract provided.
Oh, Won't You Stay With Me?: Determining Whether § 3 Of The Faa Requires A Stay In Light Of Katz V. Cellco Partnership, Alessandra Rose Johnson
Oh, Won't You Stay With Me?: Determining Whether § 3 Of The Faa Requires A Stay In Light Of Katz V. Cellco Partnership, Alessandra Rose Johnson
Fordham Law Review
The Federal Arbitration Act (FAA) provides the legal framework to render international and interstate arbitration agreements judicially enforceable in the United States. In furtherance of that goal, it provides that, if a party initiates litigation rather than arbitration of an arbitrable dispute, either party may request that the court stay the litigation pending resolution in an arbitration proceeding. The U.S. courts of appeals are currently split as to whether § 3 of the FAA requires a court under these circumstances to stay the action or whether the court has the discretion to dismiss the action altogether. In Katz v. Cellco …
The Origins Of Argentina's Litigation And Arbitration Saga, 2002-2016, Arturo C. Porzecanski
The Origins Of Argentina's Litigation And Arbitration Saga, 2002-2016, Arturo C. Porzecanski
Fordham International Law Journal
The voluminous and protracted litigation and arbitration saga featuring the Republic of Argentina (mostly as defendant or respondent, respectively) established important legal and arbitral precedents, as illustrated by three cases involving Argentina which were appealed all the way up to the US Supreme Court and were settled in 2014. At first glance, the scale of Argentina-related litigation activity might be explained by the sheer size of the government’s 2001 default, the world’s largest-ever up to that point. However, its true origins are to be found in the unusually coercive and aggressive way that the authorities in that country went about …
Recent Trends In Discovery In Arbitration And In The Federal Rules Of Civil Procedure, Paul Radvany
Recent Trends In Discovery In Arbitration And In The Federal Rules Of Civil Procedure, Paul Radvany
Faculty Scholarship
No abstract provided.
How Italian Colors Guts Private Antitrust Enforcement By Replacing It With Ineffective Forms Of Arbitration, Einer Elhauge
How Italian Colors Guts Private Antitrust Enforcement By Replacing It With Ineffective Forms Of Arbitration, Einer Elhauge
Fordham International Law Journal
The United States is becoming more like Europe, and not in a good way. For a long time, the central difference between antitrust enforcement in the United States and Europe has been that the United States features not only public enforcement, but a vigorous system of private antitrust enforcement, while in Europe, public agencies have had an effective monopoly on antitrust enforcement. But that difference is on the verge of collapsing. We are achieving a form of convergence; but contrary to expectations, this convergence is not coming from recent European efforts to facilitate private enforcement, which have not yet overcome …
A Substantive Right To Class Proceedings: The False Conflict Between The Faa And Nlra, Michael D. Schwartz
A Substantive Right To Class Proceedings: The False Conflict Between The Faa And Nlra, Michael D. Schwartz
Fordham Law Review
In recent decades, the U.S. Supreme Court’s Federal Arbitration Act jurisprudence has greatly expanded the scope of enforceable arbitration agreements. In AT&T Mobility LLC v. Concepcion, decided in 2011, the Court held that a class arbitration waiver in a consumer contract was enforceable, despite state law to the contrary. In January 2012, the National Labor Relations Board ruled that, despite the Court’s holding in Concepcion, class waivers in employment arbitration agreements are unenforceable due to employees’ right under the National Labor Relations Act to engage in concerted activity. However, nearly all federal and state courts that have subsequently …
Enforcing International Insurers’ Expectations: Can States Unilaterally Quash Commercial Arbitration Agreements Under The Mccarran-Ferguson Act?, Mary Pennisi
Fordham Journal of Corporate & Financial Law
This Note examines the split in federal circuit courts created by Safety National Casualty Corp. on whether the MFA reverse-preempts the New York Convention and allows states to quash arbitration agreements in international insurance contracts.
Freedom, Finality, And Federal Preemption: Seeking Expanded Judicial Review Of Arbitration Awards Under State Law After Hall Street, Brian T. Burns
Freedom, Finality, And Federal Preemption: Seeking Expanded Judicial Review Of Arbitration Awards Under State Law After Hall Street, Brian T. Burns
Fordham Law Review
When the U.S. Supreme Court decided Hall Street Associates, L.L.C. v. Mattel, Inc. in March 2008, the Court held that under the Federal Arbitration Act (FAA), parties to an arbitration agreement may not contractually expand the grounds for judicial review of an arbitration award beyond the grounds enumerated in the FAA. In dicta, however, the Court expressly left open the possibility that parties nonetheless may obtain expanded review by relying on state arbitration law, rather than the FAA. This Note examines the availability of contractually expanded review under state law and addresses the question of whether, in light of Hall …
The Crumbled Difference Between Legal And Illegal Arbitration Awards: Hall Street Associates And The Waning Public Policy Exception, Jonathan A. Marcantel
The Crumbled Difference Between Legal And Illegal Arbitration Awards: Hall Street Associates And The Waning Public Policy Exception, Jonathan A. Marcantel
Fordham Journal of Corporate & Financial Law
No abstract provided.
The Olympic Binding Arbitration Clause And The Court Of Arbitration For Sport: An Analysis Of Due Process Concerns, Jason Gubi
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
Securities Arbitrators Do Not Grow On Trees, Constantine N. Katsoris
Securities Arbitrators Do Not Grow On Trees, Constantine N. Katsoris
Fordham Journal of Corporate & Financial Law
No abstract provided.
Fin Rah!...A Welcome Change: Why The Merger Was Necessary To Preserve U.S. Market Integrity, Yesenia Cervantes
Fin Rah!...A Welcome Change: Why The Merger Was Necessary To Preserve U.S. Market Integrity, Yesenia Cervantes
Fordham Journal of Corporate & Financial Law
No abstract provided.
Evolving Issues In Reinsurance Disputes: The Power Of Arbitrators, Robert W. Diubaldo
Evolving Issues In Reinsurance Disputes: The Power Of Arbitrators, Robert W. Diubaldo
Fordham Urban Law Journal
This Article examines emerging areas of the law governing the following procedural powers of arbitrators that impact reinsurance arbitrations, as well as other commercial disputes: (i) consolidation; (ii) non-party discovery; (iii) confidentiality; (iv) summary adjudication; and (v) the enforceability of a hold harmless agreement. Inconsistency in judicial interpretation of arbitral powers significantly impacts the cost-effectiveness and overall efficiency of arbitration -- reasons the parties seek to arbitrate their commercial disputes in the first place.
On The Face Of It? Establishing Jurisdiction On Claims To Compel Arbitration Under Section 4 Of The Faa, Leda Moloff
On The Face Of It? Establishing Jurisdiction On Claims To Compel Arbitration Under Section 4 Of The Faa, Leda Moloff
Fordham Law Review
Section 4 of the Federal Arbitration Act enables a party with an arbitration agreement to bring suit to compel arbitration if the dispute between parties is brought in court. The U.S. Courts of Appeals are split over how to establish jurisdiction when faced with a claim to compel arbitration. The disagreement centers on whether the court may “look through” to the underlying claim between parties to establish jurisdiction or whether establishment of jurisdiction must comply with the well-pleaded complaint rule, a rule requiring the petitioner to state the reason for jurisdiction on the face of their complaint to compel arbitration. …
The Secret To Success: An Examination Of New York State Mediation Related Litigation, Andrew N. Weisberg
The Secret To Success: An Examination Of New York State Mediation Related Litigation, Andrew N. Weisberg
Fordham Urban Law Journal
This Comment examines the difficulties in using alternative dispute resolution, specifically mediation, to settle disputes between parties. While mediation is meant to lighten the courts' caseload, it occasionally results in post-settlement issues concerning the mediated agreement, leaving the court to determine whether the agreement should be enforced. This Comment examines such enforcement issues, specifically how often enforcement issues arise and the typical grounds on which parties rely to vacate or modify mediated agreements. It discusses the research conducted on New York State cases decided between 1/1/2004 and 10/31/2006 and describes research conducted by Hamline University School of Law Professors James …
The Legitimacy Crisis In Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions, Susan D. Franck
The Legitimacy Crisis In Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions, Susan D. Franck
Fordham Law Review
No abstract provided.
Mediating International Business Disputes, Daniel Q. Posin
Mediating International Business Disputes, Daniel Q. Posin
Fordham Journal of Corporate & Financial Law
No abstract provided.
The Collision Of Church And State: A Primer To Beth Din Arbitrarion And The New York Secular Courts, Ginnine Fried
The Collision Of Church And State: A Primer To Beth Din Arbitrarion And The New York Secular Courts, Ginnine Fried
Fordham Urban Law Journal
This Comment analyzes the interaction between secular courts and beth din proceedings (arbitration panels made up of specialists in halacha, or Jewish law). Part I examines the reasons why an independent Jewish religious court system is required and utilized despite the existence of a fair and equitable secular court system. It describes the Jewish legal principles involved, and how they impact both Jewish litigants and lawyers. Part II describes the mechanics of transforming a religious tribunal into a legally binding arbitration panel in New York State. Part III discusses the limited grounds upon which a beth din award may be …
Inequities In The Resolution Of Securities Disputes: Individual Or Class Action; Arbitration Or Litigation, Farah Z. Usmani
Inequities In The Resolution Of Securities Disputes: Individual Or Class Action; Arbitration Or Litigation, Farah Z. Usmani
Fordham Journal of Corporate & Financial Law
No abstract provided.
Pillars Of Civilization: Attorneys And Arbitration, Robert S. Clemente, Karen Kupersmith
Pillars Of Civilization: Attorneys And Arbitration, Robert S. Clemente, Karen Kupersmith
Fordham Journal of Corporate & Financial Law
No abstract provided.
Take My Arbitrator, Please: Commissioner "Best Interests" Disciplinary Authority In Professional Sports, Jason M. Pollack
Take My Arbitrator, Please: Commissioner "Best Interests" Disciplinary Authority In Professional Sports, Jason M. Pollack
Fordham Law Review
No abstract provided.
The Use Of Arbitration To Settle Territorial Disputes, Carla S. Copeland
The Use Of Arbitration To Settle Territorial Disputes, Carla S. Copeland
Fordham Law Review
No abstract provided.
The Uncertain Legacy Of Gilmer: Mandatory Arbitration Of Federal Employment Discrimination Claims, John W.R. Murray
The Uncertain Legacy Of Gilmer: Mandatory Arbitration Of Federal Employment Discrimination Claims, John W.R. Murray
Fordham Urban Law Journal
The United States Supreme Court in Alexander v. Gardner-Denver Co. held that an employee could not be forced to arbitrate his discrimination claim against an employer pursuant to his union's collective bargaining agreement. Subsequent cases viewed Gardner-Denver as prohibiting mandatory arbitration in employment discrimination claims, until the Supreme Court upheld an agreement to submit all statutory discrimination claims to arbitration in Gilmer v. Interstate/Johnson Lane Corp. Gilmer seems to have limited the prohibition of mandatory arbitration in Gardner-Denver to collective bargaining agreements. Subsequently, many lower courts interpret Gilmer as an approval of arbitration clauses in employment agreements, and as such, …
A Model For Arbitration: Autonomy, Cooperation And Curtailment Of State Power, Kenneth
A Model For Arbitration: Autonomy, Cooperation And Curtailment Of State Power, Kenneth
Fordham Urban Law Journal
As compared with the formal pleadings, massive discovery, aggressive motion practice, and endless appeals of litigation, arbitration is undoubtedly more efficient as a dispute resolution mechanism. However, efficiency is only one of many advantages of arbitration. Arbitration empowers disputing parties, promotes individual autonomy and cooperation, and curtails the power of government in the process. Still, the state should not wholly limit its involvement in arbitral processes; the courts do and should have a substantial role in determining the enforceability of arbitration agreements and awards in a few select contexts. Overall, courts should enforce arbitration agreements and only limit enforceability that …
The Role Of The Courts In The Securities Industry, Kevin T. Duffy, John N. Tognino
The Role Of The Courts In The Securities Industry, Kevin T. Duffy, John N. Tognino
Fordham Journal of Corporate & Financial Law
No abstract provided.
Sica: The First Twenty Years, Constantine N. Katsoris
Sica: The First Twenty Years, Constantine N. Katsoris
Fordham Urban Law Journal
This Article provides a broad overview of the topic of securities arbitration. It expresses the views of litigants from both sides of the spectrum. It argues that the public must trust in the integrity of the SRO (self-regulatory organization) arbitration process for securities arbitration to remain the basically mandatory system that it is today. The Article traces the evolution of arbitration rules in effect at various SROs. It then examines the Uniform Code of Arbitration in detail, and the SRO Codes. It explores the role of the American Arbitration Association (AAA), the NYSE Symposium, the Ruder Report and the Role …
Arbitration Of Patent Infringement Disputes: Encouraging The Use Of Arbitration Through Evidence Rules Reform, Gregg A. Paradise
Arbitration Of Patent Infringement Disputes: Encouraging The Use Of Arbitration Through Evidence Rules Reform, Gregg A. Paradise
Fordham Law Review
No abstract provided.