Law Commons^™

Washoe Cty. Sch. Dist. V. White, 133 Nev. Adv. Op. 43 (June 29, 2017), Margarita Elias

Nevada Supreme Court Summaries

Kara White (“White”) was terminated from her role as elementary school principal after the school district’s decision to terminate her was affirmed in an arbitration hearing. White filed a motion to vacate the award in district court. The district court granted White’s motion, holding that (1) the arbitrator exceeded his authority, (2) the arbitrator manifestly disregarded NRS 391.3116, and (3) the award was arbitrary and capricious. The school district appealed to the Supreme Court of Nevada, which reversed the district court’s ruling.

Trial And Error: Legislating Adr For Medical Malpractice Reform, Lydia Nussbaum

Scholarly Works

The U.S. healthcare system has a problem: hundreds of thousands of people die each year, and over a million are injured, by medical mistakes that could have been avoided. Furthermore, over ninety percent of these patients and their families never learn of the errors or receive redress. This problem persists, despite myriad reforms to the medical malpractice system, because of lawmakers' dominant focus on reducing providers' liability insurance costs. Reform objectives are beginning to change, however, and the vehicle for implementing these changes is alternative dispute resolution ("ADR"). Historically, legislatures deployed ADR to curb malpractice litigation and restrict patients' access …

Notes From A Quiet Corner: User Concerns About Reinsurance Arbitration – And Attendant Lessons For Selection Of Dispute Resolution Forums And Methods, Jeffrey W. Stempel

Scholarly Works

Arbitration between insurers and reinsurers – those who insure insurance companies – should logically run as smoothly as any arbitration process. Like the traditional commercial arbitration that drove enactment of the Federal Arbitration Act, reinsurance arbitration involves experienced actors in a confined industry in which the parties should be constructively aware of the rules, norms, customs and practices of the industry. But in spite of this, reinsurance arbitration experiences consistent problems of which the participants complain. This article reviews the complaints and exams possible solutions – including the possibility of arbitrating less and litigating more. Although these possible solutions would …

The Three Phases Of The Supreme Court’S Arbitration Jurisprudence: Empowering The Already-Empowered, Martin H. Malin

Nevada Law Journal

No abstract provided.

Principal Investments V. Harrison, 132 Nev. Adv. Op. 2 (Jan. 14, 2016), Katherine Maher

Nevada Supreme Court Summaries

The Court held unless the arbitration agreement commits the question to the arbitrator with “clear and unmistakable” language, a litigation-conduct waiver is presumptively for the court to decide because it is a waiver based on active litigation in court. Thus, the district court judge in this case did not err in addressing whether the moving party waived its right to arbitrate, instead of referring the question to the arbitrator.

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

Scholarly Works

Drawing on economic, psychological and philosophical considerations, this Essay considers whether consumers should be "free" to "agree" to contractually trade their opportunity to litigate in a class action for the opportunity to bring an arbitration claim against a company. The Essay suggests that by looking at the CFPB's regulation through these three lenses, one sees that the regulation is desirable—even a poster child—for the potential value of regulation when market forces are not sufficient to protect individual or public interests.

Wph Architecture, Inc. V. Vegas Vp, Lp., 131 Nev. Adv. Op. 88 (Nov. 5, 2015), Emily Dyer

Nevada Supreme Court Summaries

The Court determined that (1) NRCP 68, NRS § 17.115, and NRS § 18.020, which allow costs and fees to be awarded in several types of district court cases, do not require an arbitrator to award fees and costs after an offer of judgment has been made; and (2) NRCP 68, NRS § 17.115, and NRS § 18.020 are substantive in their application to arbitration proceedings.

Tallman V. Eight Judicial District Court, 131 Nev. Adv. Op. 60673 (Sep. 24, 2015), Marta Kurshumova

Nevada Supreme Court Summaries

The Court held that an employment arbitration agreement, which contains a clause waiving the right to initiate or participate in class actions, constitutes a valid contract, even though it is not signed by the employer. The Court further determined that the Federal Arbitration Act applies to all transactions involving commerce and does not conflict with the National Labor Relations Act, which permits and requires arbitration. Finally, the Court found that a party does not automatically waive its contractual rights to arbitration by removing an action to federal court.

Mika V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 71 (Sep. 24, 2015), Kory Koerperich

Nevada Supreme Court Summaries

The court denied extraordinary writ relief from the district court’s decision to compel arbitration between Petitioners and their employer based on a long-form arbitration agreement signed only by the Petitioners, and federal law favoring arbitration agreements.

The Trouble With Categories: What Theory Can Teach Us About The Doctrine-Skills Divide, Linda H. Edwards

Scholarly Works

We might not need another article decrying the doctrine/skills dichotomy. That conversation seems increasingly old and tired. But like it or not, in conversations about the urgent need to reform legal education, the dichotomy’s entailments confront us at every turn. Is there something more to be said? Perhaps surprisingly, yes. We teach our students to examine language carefully, to question received categories, and to understand legal questions in light of their history and theory. Yet when we talk about the doctrine/skills divide, we seem to forget our own instruction.

This article does not exactly take sides in the typical skills …

Forced Arbitration Undermines Enforcement Of Federal Laws By Suppressing Consumers' And Employees' Ability To Bring Claims, Jean R. Sternlight

Congressional Testimony

Testimony of Professor Jean R. Sternlight to the Senate Judiciary Committee, arguing for the passage of the Arbitration Fairness Act of 2013.

Tainted Love: An Increasingly Odd Arbitral Infatuation In Derogation Of Sound And Consistent Jurisprudence, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

Similarities Between Arbitration And Bankruptcy Litigation, Stephen J. Ware

Nevada Law Journal

No abstract provided.

Integrating "Alternative" Dispute Resolution Into Bankruptcy: As Simple (And Pure) As Motherhood And Apple Pie, Nancy A. Welsh

Nevada Law Journal

No abstract provided.

"Brother Can You Spare A Dime?" Technology Can Reduce Dispute Resolution Costs When Times Are Tough And Improve Outcomes, David Allen Larson

Nevada Law Journal

No abstract provided.

Lawyerless Dispute Resolution: Rethinking A Paradigm, Jean R. Sternlight

Scholarly Works

Do participants in mediation and arbitration have attorneys? Do they need them? Although the phenomenon of pro se litigation has received substantial attention in recent years, few commentators or policymakers have focused on these questions. The failure to focus on the possible need for representation in mediation and arbitration is based on an often unstated premise that because ADR processes are purportedly non-adversarial or less adversarial than litigation, disputants need representation less in ADR than they do in litigation. This Article suggests that the failure to focus on the possible need for representation in mediation and arbitration is fundamentally misguided. …

Fixing The Mandatory Arbitration Problem: We Need The Arbitration Fairness Act Of 2009, Jean R. Sternlight

Scholarly Works

No abstract provided.

Mandating Minimum Quality In Mass Arbitration, Jeffrey W. Stempel

Scholarly Works

The Supreme Court's decision in McMahon and its progeny has led many businesses and employers to embrace what was once deemed a localized, industry-specific practice. The "new" or "mass arbitration" only mildly resembles the traditional system employed by niches in industry for settling commercial matters among commercial actors. While the "old" system involved parties who were relatively equal in bargaining power and knowledge, these systems for mass arbitration lack a freely entered bargain and resemble more closely, contracts of adhesion. Privatized arbitration resolves issues of both statutory and substantive law, and there is a strong argument, given the inexperience of …

The Arrival Of The "Have-Nots" In International Arbitration, Catherine A. Rogers

Nevada Law Journal

No abstract provided.

The Arbitration Penumbra: Arbitration Law And The Rapidly Changing Landscape Of Dispute Resolution, Thomas J. Stipanowich

Nevada Law Journal

No abstract provided.

Misjudging: Implications For Dispute Resolution, Donna Shestowsky

Nevada Law Journal

No abstract provided.

Keeping Arbitrations From Becoming Kangaroo Courts, Jeffrey W. Stempel

Scholarly Works

Arbitration has grown rapidly during the past 20 years. Particularly notable and problematic is the rapid onset of new or mass arbitration that has resulted from the judiciary's modern favorable attitude toward enforcement of arbitration clauses, even those imposed upon consumers, employees, small vendors, and debtors as part of a standardized contract of adhesion. In a separate article (See "Mandating Minimum Quality in Mass Arbitration," 76 U. Cin. L. Rev. (forthcoming 2007)), I present a more comprehensive list of what I regard as the necessary steps that must be taken to insure minimally acceptable quality and fairness in mass arbitration. …

In Defense Of Mandatory Arbitration (If Imposed On The Company), Jean R. Sternlight

Scholarly Works

Having spent much of her academic life battling companies' mandatory imposition of binding arbitration on consumers and employees, the author now switches gears. This Article contemplates whether mandatory binding arbitration is acceptable if imposed by the government on companies (governmental mandatory arbitration) rather than by companies on their employees and consumers (private mandatory arbitration). Specifically, the Article considers the possibility of statutes that would provide little guys (consumers and employees) with an opportunity to take their disputes to binding arbitration rather than litigation. If the little guys chose arbitration over litigation, post-dispute, companies would have to agree to such arbitration, …

Creeping Mandatory Arbitration: Is It Just?, Jean R. Sternlight

Scholarly Works

This Article examines the phenomenon of mandatory binding arbitration, imposed on consumers and employees, and considers whether this type of dispute resolution serves or instead undermines justice. It is fairly easy to attack binding arbitration as unfair, for example pointing to the fact that it undermines rights to jury trial and to proceed in class actions. However, this Article seeks to examine the phenomenon of mandatory binding arbitration from a broader perspective, recognizing that it is inappropriate to assume that justice requires our existing system of litigation, with its class actions and jury trial. The Article concludes that while informal …

Arbitration, Unconscionability, And Equilibrium: The Return Of Unconscionability Analysis As A Counterweight To Arbitration Formalism, Jeffrey W. Stempel

Scholarly Works

However incomplete, unaggressive, or sub-optimal, unconscionability analysis of arbitration agreements has made something of a comeback in the late twentieth century and early twenty-first century. Just as nature abhors a vacuum, water seeks to be level, and ecosystems work to retain environmental stability, the legal system has witnessed an incremental effort by lower courts to soften the rough edges of the Supreme Court's pro-arbitration jurisprudence through rediscovery of what might be called the “unconscionability norm”--a collective judicial view as to what aspects of an arbitration arrangement are too unfair to merit judicial enforcement. In rediscovering and reinvigorating the unconscionability norm …

Using Arbitration To Eliminate Consumer Class Actions: Efficient Business Practice Or Unconscionable Abuse?, Jean R. Sternlight, Elizabeth J. Jensen

Scholarly Works

Companies are increasingly drafting arbitration clauses worded to prevent consumers from bringing class actions against them in either litigation or arbitration. If one looks at the form contracts she receives regarding her credit card, cellular phone, land phone, insurance policies, mortgage, and so forth, most likely, the majority of those contracts include arbitration clauses, and many of those include prohibitions on class actions. Companies are seeking to use these clauses to shield themselves from class action liability, either in court or in arbitration.

This article argues that while the unconscionability doctrine offers some protections, case-by-case adjudication is a costly means …

Self-Deregulation, The "National Policy" Of The Supreme Court, Paul D. Carrington

Nevada Law Journal

No abstract provided.

The Rise And Spread Of Mandatory Arbitration As A Substitute For The Jury Trial, Jean R. Sternlight

Scholarly Works

THE CIVIL JURY trial is fast disappearing from our legal landscape, and one important reason for its disappearance is the rapid growth of mandatory arbitration. Yet, the imposition of mandatory arbitration eliminates the civil jury, and often this elimination is not made through a knowing, voluntary, or intelligent waiver. As I have argued elsewhere in greater detail, unless federal courts are generally willing to abandon the Seventh Amendment "knowing/voluntary/intelligent" civil jury trial waiver standard, they need to significantly revise their approach to mandatory arbitration clauses. If a given state allows the civil jury trial right to be waived through a …

Forgetfulness, Fuzziness, Functionality, Fairness And Freedom, In Dispute Resolution, Jeffrey W. Stempel

Scholarly Works

Professor Subrin is a self-professed traditionalist who has been one of the most forceful defenders of what I might term neo-traditional “Clarkian” litigation. By that, I mean the model of civil disputing in which litigation is a primary vehicle. More important, the litigation is based on notice pleading, broad discovery, and a preference for adjudication on the merits.

Key Subrin works over the years have focused on the historical path of the Clarkian model, which served to fuel much of the law revolution of the mid-Twentieth Century, to the “new era” of civil procedure and dispute resolution that dominated the …

Is The U.S. Out On A Limb? Comparing The U.S. Approach To Mandatory Consumer And Employment Arbitration To That Of The Rest Of The World, Jean R. Sternlight

Scholarly Works

After quickly summarizing the landscape of mandatory arbitration both within and without the United States, this article will consider why mandatory arbitration is treated so disparately, whether it is problematic that approaches to mandatory arbitration are so varied among countries, and what the differing jurisdictions can and should learn from one another. The article concludes that the United States Congress should be very concerned with the fact that we are treating mandatory arbitration more permissively than other countries. I, along with many others, have previously presented many arguments for why mandatory arbitration is problematic. Our outlier status on this issue …