Law Commons^™

Standards Of Review In Texas, W. Wendell Hall, Ryan G. Anderson

St. Mary's Law Journal

Abstract forthcoming

The Cfpb Proposed Arbitration Ban, The Rule, The Data, And Some Considerations For Change, Ramona L. Lampley

Faculty Articles

Predispute consumer arbitration has sparked energetic debate and sharply divides the utility of the class action versus the utility of individual arbitration. Thus far, the U.S. Supreme Court’s jurisprudence has given a “thumbs up” approach to predispute consumer arbitration waivers, which almost always include a class waiver agreement. Congress showed little interest in amending the Federal Arbitration Act (“FAA”), even for consumer cases. It seems that consumer arbitration was the “wild west” of the law, in that it was largely unregulated and could direct claims to the black hole of private dispute resolution. In May 2016, the Consumer Financial Protection …

Kcon Xi Essay Introduction: Compulsory Arbitration And Adhesion Contracts In The Age Of Donald Trump, Peter Linzer

St. Mary's Law Journal

Remarks of Peter Linzer on receiving the Lifetime Achievement Award from the 11th International Contracts Conference (K-CON XI). Revised after Election Day, 2016.

"What We Lose In Sales, We Make Up In Volume": The Faulty Logic Of The Financial Services Industry's Response To The Consumer Financial Protection Bureau's Proposed Rule Prohibiting Class Action Bans In Arbitration Clauses, Richard Frankel

St. Mary's Law Journal

Abstract forthcoming.

The Cfpb Anti-Arbitration Proposal: Let's Just Give Arbitration A Chance., Ramona L. Lampley

St. Mary's Law Journal

Abstract forthcoming.

Hurrah For The Consumer Financial Protection Bureau: Consumer Arbitration As A Poster Child For Regulation, Jean R. Sternlight

St. Mary's Law Journal

Abstract forthcoming.

Unconscionable Judicial Disdain For Unsophisticated Consumers And Employees' Contractual Rights? Legal And Empirical Analyses Of Courts' Mandatory Arbitration Rulings And The Systematic Erosion Of Procedural And Substantive Unconscionability Defenses Under The Federal Arbitration Act 1800-2015, Willy E. Rice

Faculty Articles

Although the Consumer Financial Protection Bureau (“CFPB”) has taken steps to educate consumers about the perils of hidden and complicated arbitration provisions in contracts, these activities are not enough. Exceedingly large populations of unsophisticated employees need assistance because they are increasingly forced to arbitrate state and federal claims. Consequently, the Court's extremely harsh “federal policies” have gradually, systematically, and significantly eroded consumers and employees' ability to defend themselves in compulsive-arbitration trials.

While arbitration may be within the reasonable expectations of consumers, a process that builds prohibitively expensive fees into the arbitration process is not. It is substantively unconscionable to require …

The Cfpb Anti-Arbitration Proposal: Let’S Just Give Arbitration A Chance, Ramona L. Lampley

Faculty Articles

In October 2015, the Consumer Financial Protection Bureau (“CFPB”) announced that it would propose a rule banning class action waivers in arbitration agreements for consumer financial services products. This proclamation came to fruition in May 2016 when the CFPB proposed 12 C.F.R. part 1040 and sought public comment on the proposed rule. The CFPB claims that the class-waiver, often imbedded in consumer arbitration agreements, gives companies a “free pass from being held accountable by their customers[,]” comparing it to the relief a consumer can obtain as being part of a class action. At the same time, the CFPB proposed reporting …

Courts Gone “Irrationally Biased” In Favor Of The Federal Arbitrations Act?—Enforcing Arbitration Provisions In Standardized Applications And Marginalizing Consumer-Protection, Antidiscrimination, And States’ Contract Laws: A 1925–2014 Legal And Empirical Analysis, Willy E. Rice

Faculty Articles

Spanning nearly forty years, the Supreme Court has issued multiple decisions and stated categorically that “judicial hostility to arbitration” was the sole impetus behind Congress’s decision to enact the Federal Arbitration Act of 1925. In fact, before the FAA, systemic trade-specific problems and practices generated heated disputes and widespread litigation among merchants and trade organizations. Thus, to arrest those constituents’ concerns, Congress enacted the FAA. Briefly, under the FAA section 2, arbitration is mandatory if a contractual arbitration provision is valid and a controversy “arises out of the contract.” However, common-law rules of contract formation are equally clear: Standing alone, …

The Fine Print, Ramona L. Lampley

Faculty Articles

A recent study by the Consumer Financial Protection Bureau (“CFPB”), the federal agency tasked with “empowering consumers to take control over their economic lives,” found that more than 50 percent of the market for consumer credit cards had arbitration agreements, and almost 100 percent of storefront payday lending contracts require its customers to take their disputes to binding arbitration. The same study found that most consumers do not know their credit cards have a binding arbitration agreement and that it is not a primary concern for consumers in deciding which credit cards to obtain.

However, almost all arbitration agreements in …

“Underdog” Arbitration: A Plan For Transparency, Ramona L. Lampley

Faculty Articles

The use of mandatory, pre-dispute arbitration clauses in consumer, employment, health-care, and even nursing home agreements is ever-increasing, even though the general public has distrust and a lack of understanding of the nature of arbitration. The Supreme Court in AT&T Mobility LLC v. Concepcion, and then in American Express Co. v. Italian Colors Restaurant, has signaled firmly that mandatory pre-dispute arbitration is here to stay. This is true even for individual low-value claims in which one party, say the consumer or employee, has little or no bargaining power. I call these claims “underdog claims.” There have been numerous proposals to …

Contracting Away Your Right To Sue: What You Need To Know About Arbitration, Ramona L. Lampley

Faculty Articles

Arbitration agreements that typically accompany credit card agreements and other services can work well—or work disastrously. What many consumers do not realize is that in numerous everyday interactions with banks, employers and retailers, they are waiving their right to sue in court if a dispute does arise. Given the lack of consumer familiarity with arbitration, there is an inherent fear and distrust of the system often referred to either as alternative dispute resolution or private dispute resolution. Some of that public fear and distrust is well-founded. We know that private dispute resolution poses the opportunity for businesses to potentially take …

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 …

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 …

Not What, But When Is An Offer — Rehabilitating The Rolling Contract, Colin P. Marks

Faculty Articles

To what degree are rolling, or layered, contracts binding? A number of courts, starting with the now infamous case of ProCD, Inc. v. Zeidenberg, have held that, rather than a contract for the sale of a good, such as a computer, being completed in-store, the contract is formed when deferred terms found inside the package are reviewed by the buyer and accepted by some act -- usually use of the good (or declining to return it). This approach, which has been called the rolling contract, has been widely criticized by commentators as an abomination of contract law that ignores a …

The Irony Of At&T V. Concepcion, Colin P. Marks

Faculty Articles

Irony is defined as, “the use of words to express something other than and especially the opposite of the literal meaning.” Though many other definitions of the word exist, in light of the Supreme Court’s majority opinion in AT&T v. Concepcion, this definition comes to mind. Read broadly, the decision strikes a blow to the ability of consumers to bring suits against companies, both inside and outside of arbitration. But that was not the intent behind the federal act which the Court relied upon to justify its decision.

In 1925, when Congress passed the Federal Arbitration Act (FAA), its intended …

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 …

Is Arbitration Under Attack?: Exploring The Recent Judicial Skepticism Of The Class Arbitration Waiver And Innovative Solutions To The Unsettled Legal Landscape, Ramona L. Lampley

Faculty Articles

Courts have become increasingly likely in recent years to find class arbitration waivers in consumer product sales unenforceable due to the lack of incentives for consumers and their attorneys to recover for "low value" claims. This article explores the history of the unconscionability and vindication-of-statutory rights doctrines invoked by those courts. It then analyzes the progression of the class arbitration waiver in the consumer products industry, with emphasis on the third-generation "incentivizing" agreement. This "incentivizing" agreement, if viewed at the time of the purchase agreement, can be mutually beneficial to seller and consumer. Some consumers may wish to forego the …

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 …

Americans Abroad: International Educational Programs And Tort Liability, Vincent R. Johnson

Faculty Articles

In recent decades, the number of foreign programs operated by American colleges and universities has greatly expanded. Until recently, there were few reported cases involving claims arising from foreign educational ventures. However, the increase in international study abroad programs has been paralleled by an increase in tort claims. Additionally, because of the tendency of tort cases to be settled, the number of unreported cases, based on harm to students participating in study abroad programs, may be considerably larger than what appears in legal research databases.

Given the high cost of potential litigation, a program provider has no choice but to …

Federal Courts And The Regulation Of The Insurance Industry: An Empirical And Historical Analysis Of Courts' Ineffectual Attempts To Harmonize Federal Antitrust, Arbitration, And Insolvency Statutes With The Mccarran-Ferguson Act--1941-1993, Willy E. Rice

Faculty Articles

The movement to reform the McCarran-Ferguson Act is misplaced. The Supreme Court and the lower federal courts are inferior forums for resolving insurance-related controversies. The language of the McCarran-Ferguson Act is unclear, and this lack of clarity created division among the federal courts.

Courts are divided over the definition of “business of insurance” and this causes problems for both consumers and the insurance industry. In addition, the Act also states that the Sherman Act shall apply to any insurance-related agreement or activity involving boycott, coercion, or intimidation; yet again, courts are divided over the applicability of the Sherman Act. Also, …

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 …

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 …