Law Commons^™

Stiffing The Arbitrators: The Problem Of Nonpayment In Commercial Arbitration, Brian Farkas, Neal M. Eiseman

Brian Farkas

Commercial arbitration is a creature of contract; the parties are there because they choose to be, either including an arbitration clause in their written agreement or, after a dispute developed, electing to avoid litigation all together. Arbitration also comes with an up-front cost non-existent in litigation: the arbitrators. Taxpayers pay for their state and federal judges, but the parties themselves pay for their arbitrators. But what happens if one party refuses (or is otherwise unable) to pay the arbitrator? If the arbitrator then refuses to proceed, as is likely, should the dispute revert to court, in derogation of the prior …

Complexity In Litigation: A Differential Diagnosis, Curtis E.A. Karnow

Curtis E.A. Karnow

This note examines complex litigation with the goal of providing practical options for its management. It is written from a judge’s perspective. I review the definition of a “complex” case and explain its emphasis on the need for a judge to manage the case, with a focus on enabling settlement. I address a series of specific characteristics or aspects of complex cases, explaining how these affect the progress of the case. Then the note explores the many tools and techniques judges have to manage and ameliorate difficult aspects of complex cases. {Pre-print. Final article as published differs substantially and is …

Business Entities - Basic Legal Issues, Curtis E.A. Karnow

Curtis E.A. Karnow

Brief introduction to certain business litigation issues including vicarious liability, sealing records, representation by counsel, qualification of domestic corporations; depositions of persons most knowledgeable, and conflicts of laws.

The Adversarial System, Three Lemons, And Cocaine: The Role Of Confirmation Bias, Curtis E.A. Karnow

Curtis E.A. Karnow

A short note on confirmation bias and cognitive dissonance as it affects decision making by lawyers and judges.

Breaking The Ice: How Plaintiffs May Establish Premises Liability In "Black Ice" Cases Where The Dangerous Condition Is By Definition Not Visible Or Apparent To The Property Owner, Hon. Mark Dillon

Hon. Mark C. Dillon

Plaintiffs that are injured as a result of encounters with "black ice," as distinguished from regular ice, face peculiar difficulties in establishing liability against property owners for the dangerous icy conditions on their premises. Black ice results from a unique process under certain conditions by which air bubbles are expelled from water during the freezing process, rendering the ice virtually invisible to the naked eye. Property owners therefore are not typically on actual or constructive notice of black ice conditions as to become subject to the legal requirement of undertaking measures to remedy the conditions. This article explores the law …

The Temptation Of Common Sense, Curtis E.A. Karnow

Curtis E.A. Karnow

The fallacies of invoking arguments from ‘common sense’ in legal briefs.

Class(Ic) Settlement Problems, Curtis E.A. Karnow

Curtis E.A. Karnow

A collection of classic problems in papers filed for preliminary court approval of class action settlements

Litigating For Justice: Defense Work At The International Criminal Tribunal For Rwanda (Ictr), Beth S. Lyons

Beth S. Lyons

Fair trial issues are usually a key part of any defense strategy – at trial or on appeal – but they serve an additional function at the international tribunals. They provide a “lever” for finding the truth. Fair trial guarantees – such as full disclosure of exculpatory material and other principles - make for truth telling; and they mitigate against the writing/re-writing history through judgments. Where there are fair trial violations, the likelihood of an accurate historical account, based on the evidence, is virtually non-existent. Hence, the struggle for fairness is a struggle for the truths.

Sealing Records, Curtis E.A. Karnow

Curtis E.A. Karnow

Practical tips on sealing records in California state courts

Patenting Thoughts, J. Ryan Lawlis

J. Ryan Lawlis

This paper argues that patents drawn towards computer-implemented inventions must overcome the overlooked fourth categorical bar on patent eligibility under 35 USC 101, the bar on mental processes. This paper arrives at this conclusion by way of an analysis of the questions for en banc rehearing presented by the Court of Appeals for the Federal Circuit in CLS Bank Intern. v. Alice Corp. Pty. Ltd., 484 Fed.Appx. 559 (Fed. Cir. 2012), asking what test should be used to analyze computer-implemented patent eligibility.

This paper first defines the historical context of subject matter eligibility for patent, beginning with the founding …

Case Of Interest Regarding The United States Supreme Court Upholding A Contractual Waiver Of Class Arbitration, William P. Huttenbach

William P. Huttenbach

Recent case you might find of interest regarding the United States Supreme Court upholding a contractual waiver of class arbitration. This case involves merchants filing a class action antitrust suit against American Express. See American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013). Respondents are merchants who accepted American Express cards. The contract between parties contained a clause that required all disputes between said parties to be resolved by arbitration and that no claims could be arbitrated on a class action basis. Respondents brought a class action suit against Petitioners for violation of the federal antitrust laws due …

Trials And Tribulations, Curtis E.A. Karnow

Curtis E.A. Karnow

A collection of practical tips and advice for litigators new to the bar, and for more experienced lawyers wishing to improve the odds of a receptive judge and jury. The advice applies to oral advocacy, trial, trial preparation, and other issues concerning presentation such as interacting with the jury and witnesses, courtroom staff, motions (including in limine motions), handling evidence, simulation and animations. This is the stuff they don’t teach in law school. (Presentation, Bar Assn. Of San Francisco & Barrister's Club, June 2013)

Altri Profili Del Contenzioso In Materia Di Contratti Derivati, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

Climate Change Litigation: Potential Reasons Canada Lags Behind The United States, Morgan Mcdonald

Morgan McDonald

Despite the overwhelming evidence that climate change threatens our environmental security, governments have neglected to enact comprehensive legislation regulating greenhouse gas (GHG) emissions. Since the political realm has failed to act, climate litigants have turned to the judicial branch to force GHG reform. Although the US and Canada support similar GHG emitting corporations and have similar legal systems, their experience in climate litigation is strikingly different. While US courts have seen approximately five hundred climate change actions, Canada has seen only two cases. The remarkable absence of climate litigation in Canada is concerning because these actions play an essential role …

Threats Escalate: Corporate Information Technology Governance Under Fire, Lawrence J. Trautman

Lawrence J. Trautman Sr.

In a previous publication The Board’s Responsibility for Information Technology Governance, (with Kara Altenbaumer-Price) we examined: The IT Governance Institute’s Executive Summary and Framework for Control Objectives for Information and Related Technology 4.1 (COBIT®); reviewed the Weill and Ross Corporate and Key Asset Governance Framework; and observed “that in a survey of audit executives and board members, 58 percent believed that their corporate employees had little to no understanding of how to assess risk.” We further described the new SEC rules on risk management; Congressional action on cyber security; legal basis for director’s duties and responsibilities relative to IT governance; …

What's Good In Theory May Be Flawed In Practice: Potential Legal Consequences Of Poor Implementation Of A Theoretical Sample, Melanie S. Williams, A. Lynn Phillips, G. Michael Phillips

Melanie S. Williams

The article discusses the problem of the use in litigation of statistical sampling. Sample-based research is increasingly used in cases as diverse as products liability, antitrust, intellectual property, and criminal law, among others. Sample-based research provides objective evidence upon which decisions, damages and liability may rest. Despite its importance, however, statistical evidence is often misused and misunderstood by attorneys who may be unfamiliar with the underlying form of analysis. The paper explores common errors when using litigative samples, comments upon best practices for the use in law of sample-based research, and demonstrates the importance of sound statistical sampling and data …

Making Plaintiffs Whole: A Tax Problem Of Interest, William E. Foster

William E Foster

This article illustrates the dramatic tax impact of interest awards in otherwise non-taxable litigation recoveries. While plaintiffs who recover personal injury awards typically receive favorable treatment, those receiving interest on such awards are taxed on the interest and are unable to utilize deductions for attorney’s fees paid to obtain the recovery. Further, the attorney’s portion of the recovery often will be included in the plaintiff’s gross income. The result is that the plaintiff recovers less of the interest than the Treasury or her attorney, preventing the plaintiff from being made whole. After reviewing the historical and theoretical framework that produces …

How A Changing Nation Is Fueling The Rise Of Trade Secret Litigation, David S. Almeling

David S. Almeling

Reports of pilfered trade secrets have grown increasingly common, and as recent studies demonstrate, trade secret litigation is on the rise. A 2010 study of the federal courts shows that trade secret litigation has grown exponentially while litigation in general has decreased. And a 2011 study of state courts shows that trade secret litigation is increasing at a faster rate than the rate of litigation in general. This essay asks: Why? Why is trade secret litigation more prevalent than ever? This essay posits — for the first time — explanations for the fact that trade secrets are increasingly important to …

A Vaguely Jocular Guide To In Limine Motions, Curtis E.A. Karnow

Curtis E.A. Karnow

A short review of problematic in limine (pre trial) motions

A Decision Procedure For Making And Evaluating Ccp 998 Offers, Ryan J. Vlasak

Ryan J Vlasak

This paper puts forth a decision procedure for making and evaluating offers to compromise pursuant to CCP section 998.

Growing Pains; Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated for substantive error even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the proposed Arbitration Fairness Act of 2009. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and …

Growing Pains; Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated for substantive error even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the proposed Arbitration Fairness Act of 2009. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and …

Growing Pains; Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated for substantive error even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the proposed Arbitration Fairness Act of 2009. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and …

Growing Pains; Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated for substantive error even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the proposed Arbitration Fairness Act of 2009. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and …

Growing Pains; Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated for substantive error even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the proposed Arbitration Fairness Act of 2009. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and …

Growing Pains; Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated for substantive error even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the proposed Arbitration Fairness Act of 2009. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and …

Growing Pains; Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated for substantive error even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the proposed Arbitration Fairness Act of 2009. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and …

Growing Pains; Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated for substantive error even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the proposed Arbitration Fairness Act of 2009. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and …

Growing Pains; Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated for substantive error even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the proposed Arbitration Fairness Act of 2009. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and …

Growing Pains; Building Arbitration's Legitimacy Through Everyday Arbitral Decisions, John B. Mcarthur

John B McArthur

Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated for substantive error even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the proposed Arbitration Fairness Act of 2009. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and …