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Articles 1 - 24 of 24
Full-Text Articles in Law
Arbitral Discovery Of Non-Parties, Jason F. Darnall, Richard Bales
Arbitral Discovery Of Non-Parties, Jason F. Darnall, Richard Bales
Journal of Dispute Resolution
This article argues that the broad power approach is the better reasoned of the two. Timely discovery of important information is vital in any dispute. Further, fair results should be the goal of any dispute resolution process. The possessor of the pertinent information, i.e., whether it is held by parties or non-parties, should be irrelevant. Part II of this article describes the differences between discovery in litigation and discovery in arbitration. Part III examines the limited power approach to prehearing discovery, which restricts the power of an arbitrator to compel non-party participation in discovery to the actual hearing. Part IV …
Hold All Arbitrations: Public Policy Invalidations Are On The Loose - Town Of Groton V. United Steelworkers Of America, Christina S. Lewis
Hold All Arbitrations: Public Policy Invalidations Are On The Loose - Town Of Groton V. United Steelworkers Of America, Christina S. Lewis
Journal of Dispute Resolution
The United States Supreme Court has held that arbitration awards derived from collective bargaining agreements may be invalidated based on public policy. However, an arbitration award should only be invalidated if the public policy is explicit, well-defined, and dominant.' This article will examine how the Connecticut Supreme Court applied the public policy test and whether the court adequately justified its decision.
Supreme Court Defines Final Decisions Relating To Arbitration Decisions And Ducks The More Important Costs Issue - Green Tree Financial Corp. - Alabama V. Randolph, The, Franklin D. Romines Ii.
Supreme Court Defines Final Decisions Relating To Arbitration Decisions And Ducks The More Important Costs Issue - Green Tree Financial Corp. - Alabama V. Randolph, The, Franklin D. Romines Ii.
Journal of Dispute Resolution
The United States Supreme Court in Green Tree Financial Corp. - Alabama v. Randolph dealt with two arbitration issues of varying import. The less controversial issue involved defining the term 'final decision' in the context of arbitration proceedings.2 The second major issue in the case provided the Court an opportunity to analyze cost assignments in arbitration agreements that were silent on the issue.3 This issue has generated considerable policy disagreement among the circuits
The Unclear "Clear And Unmistakable" Standard: Why Arbitrators, Not Courts, Should Determine Whether A Securities Investor's Claim Is Arbitrable, Guy Nelson
Vanderbilt Law Review
When an individual investor opens an account with a securities broker, the customer often must sign a standard-form contract as a precondition of conducting business with the broker. This non- negotiable contract, referred to as a Customer Agreement, generally contains an arbitration clause under which the parties agree to submit any future disputes to arbitration conducted by one of the securities industry's self-regulatory organizations ("SROs"). Proceedings initiated under the broad and inclusive arbitration clause are subject to the arbitration guidelines established by the SROs, a group which includes all the major stock exchanges. Virtually all brokers are members of an …
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.
Just Say The "Magic Words": Advocating An Arbitration Clause Should Be Held To An Express Waiver Standard For The Doctrine Of Indian Sovereign Immunity--C&L Enterprises V. Citizen Band Potawatomi Indian Tribe, Jeremy Clinefelter
American Indian Law Review
No abstract provided.
Arbitration Of Statutory Claims In The Unionized Workplace: Is Bargaining With The Union Required?, Ann C. Hodges
Arbitration Of Statutory Claims In The Unionized Workplace: Is Bargaining With The Union Required?, Ann C. Hodges
Law Faculty Publications
This article analyzes the question of whether arbitration of statutory claims should be classified as a mandatory or permissive subject of bargaining under the National Labor Relations Act (NLRA). First, this article reviews the post-Wright cases that hold that a union-negotiated waiver is permissible. Second, this article reviews the only decision to consider the issue of classification of the bargaining subject, Air Line Pilots Ass'n, International v. Northwest Airlines, Inc., a case arising in the United States Court of Appeals for the District of Columbia under the Railway Labor Act. In that case, the court concluded that the …
Paying The Price Of Process: Judicial Regulation Of Consumer Arbitration Agreements, Stephen J. Ware
Paying The Price Of Process: Judicial Regulation Of Consumer Arbitration Agreements, Stephen J. Ware
Journal of Dispute Resolution
Arbitration clauses now appear in many of the form contracts through which consumers obtain goods, services and credit.' Why do so many businesses that deal with consumers choose arbitration? Relative to litigation, arbitration provides opportunities for a business to save on its dispute-resolution costs. If arbitration does, in fact, lower these costs then arbitration lowers the prices (and interest rates) consumers pay because competition forces businesses to pass their cost-savings on to consumers.
Mandatory Arbitration Of An Employee's Statutory Rights: Still A Controversial Issue Or Are We Beating The Proverbial Dead Horse - Penn V. Ryan's Family Steakhouse, Inc., Andrea L. Myers
Journal of Dispute Resolution
Since the early 1980s, the Supreme Court has espoused a strong preference for arbitration in the employment setting. Despite this general preference, the Supreme Court has never clearly stated that mandatory arbitration of statutory rights is always reasonable. This omission has led to much controversy about whether this preference permits the mandatory arbitration of all statutory rights or only those that are amenable to arbitration as defined by the Supreme Court.
Arbitration And The Fisc: Nafta's Tax Veto, William W. Park
Arbitration And The Fisc: Nafta's Tax Veto, William W. Park
Faculty Scholarship
Taxes, said Franklin Roosevelt, "are the dues that we pay for the privileges of membership in an organized society." Harsher tongues describe tax as a form of property seizure. Somewhere between these competing characterizations of revenue raising-club dues and forced takings-lies a clue to why the North American Free Trade Agreement ("NAFTA") reserves special treatment for investment disputes implicating fiscal matters. NAFTA gives foreign investors a right to settle investment disputes by arbitration, a process more politically and procedurally neutral than either host state courts or foreign gunboats. Without the option to arbitrate, the specter of unfair expropriation might chill …
To Litigate Or Arbitrate - No Matter - The Credit Card Industry Is Deciding For You, Johanna Harrington
To Litigate Or Arbitrate - No Matter - The Credit Card Industry Is Deciding For You, Johanna Harrington
Journal of Dispute Resolution
This Comment posits that consumers lose their legal protections in the credit industry when arbitration policies are favored over consumer credit protection policies. Part II will examine the language of credit card arbitration clauses including a discussion of the circumstances under which a credit card holder might bring a claim. Part III will discuss barriers to challenging the arbitration provisions. Part IV will summarize how the courts have addressed mandatory arbitration clauses in credit cards. Part V will examine traditional consumer credit protection laws, specifically whether the Truth-in-Lending Act is able to protect consumers from mandatory arbitration clauses. Finally, Part …
Waiver - Not Yet: After More Than Eight Years Of Pre-Trial Litigation The Second Circuit Orders Arbitration - Crysen/Montenay Energy Co. V. Shell Oil Co. And Scallop Petroleum Co., David A. Geisler Ii.
Waiver - Not Yet: After More Than Eight Years Of Pre-Trial Litigation The Second Circuit Orders Arbitration - Crysen/Montenay Energy Co. V. Shell Oil Co. And Scallop Petroleum Co., David A. Geisler Ii.
Journal of Dispute Resolution
Arbitration clauses, like most terms in a contract, are enforceable against either party and, unless expressly or impliedly waived, should be enforced. While the federal courts and Congress have a policy that strongly favors arbitration, in some situations the factual nature of the case leads the court to conclude that the right to arbitrate the matter has been waived. The Second Circuit Court of Appeals, in In re Crysen/Montenay Energy Co. v. Shell Oil Co. and Scallop Petroleum Co., addressed this issue; however the court concluded that the policy favoring the enforcement of arbitration provisions outweighed the prejudice to Crysen/Montenay …
Class Action Vs. Arbitration: Does Tila Support Class Actions In Arbitration Where Statutory Rights Are Concerned - Johnson V. West Suburban Bank, Christina S. Lewis
Class Action Vs. Arbitration: Does Tila Support Class Actions In Arbitration Where Statutory Rights Are Concerned - Johnson V. West Suburban Bank, Christina S. Lewis
Journal of Dispute Resolution
Johnson v. West Suburban Bank is an important case in American jurisprudence because it combines several United States Supreme Court cases to establish a test for whether arbitration provisions relating to statutory rights should be upheld when they essentially preclude class actions. This Casenote will examine the progression the courts have taken and Johnson's subsequent test. Finally, an evaluation of this test will follow.
Arbitration Of Olympic Eligibility Disputes: Fair Play And The Right To Be Heard, Jay E. Grenig
Arbitration Of Olympic Eligibility Disputes: Fair Play And The Right To Be Heard, Jay E. Grenig
Marquette Sports Law Review
No abstract provided.
Introducing The Court Of Arbitration For Sport: The Ad Hoc Division At The Olympic Games, Richard H. Mclaren
Introducing The Court Of Arbitration For Sport: The Ad Hoc Division At The Olympic Games, Richard H. Mclaren
Marquette Sports Law Review
No abstract provided.
Off His Rocker: Sports Discipline And Labor Arbitration, Roger I. Abrams
Off His Rocker: Sports Discipline And Labor Arbitration, Roger I. Abrams
Marquette Sports Law Review
No abstract provided.
The Historical Origins Of Baseball Grievance Arbitration, J. Gordon Hylton
The Historical Origins Of Baseball Grievance Arbitration, J. Gordon Hylton
Marquette Sports Law Review
No abstract provided.
Ulysses Tied To The Generic Whipping Post: The Continuing Odyssey Of Discovery "Reform", Jeffrey W. Stempel
Ulysses Tied To The Generic Whipping Post: The Continuing Odyssey Of Discovery "Reform", Jeffrey W. Stempel
Scholarly Works
One need not be a charter member of the Critical Legal Studies Movement (“CLS”) to see a few fundamental contradictions in litigation practice in the United States. A prominent philosophical tenet of the CLS movement is that law and society are gripped by a “fundamental contradiction” and simultaneously seek to embrace contradictory objectives. Civil litigation, particularly discovery, is no exception: New amendments to the discovery rules are the latest example of this contradiction. Although the new changes are not drastic, they continue the post-1976 pattern of making discovery the convenient scapegoat for generalized complaints about the dispute resolution system. One …
Mandatory Binding Arbitration And The Demise Of The Seventh Amendment Right To A Jury Trial, Jean R. Sternlight
Mandatory Binding Arbitration And The Demise Of The Seventh Amendment Right To A Jury Trial, Jean R. Sternlight
Scholarly Works
How can the body of law which protects the federal constitutional jury trial right be reconciled with a body of arbitration law which often states such propositions as (1) arbitration is favored; (2) arbitration clauses may be upheld absent a showing of voluntary, knowing, or intentional consent; (3) the party opposing arbitration bears the burden of proof; (4) arbitration can sometimes be imposed using unsigned envelope "stuffers," handbooks, and warranties; and (5) ambiguous contracts should be construed broadly to support arbitration? To be valid, in most courts the waiver and whether it was actually state arbitration clauses need not be …
The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine
The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine
Articles
A quarter century ago, in a provocative and prophetic article, David E. Feller lamented the imminent close of what he described as labor arbitration's "golden age." I have expressed reservations about that characterization, insofar as it suggested an impending shrinkage in the stature of arbitration. But Professor Feller was right on target in one important respect. Labor arbitration was going to change dramatically from the autonomous institution in the relatively self-contained world of union-management relations which it had been from the end of World War II into the 1970s. When the subject matter was largely confined to union-employer agreements, arbitration …
Ethics In Adr: The Many "Cs" Of Professional Responsibility And Dispute Resolution, Carrie Menkel-Meadow
Ethics In Adr: The Many "Cs" Of Professional Responsibility And Dispute Resolution, Carrie Menkel-Meadow
Georgetown Law Faculty Publications and Other Works
I have been teaching both alternative dispute resolution ("ADR") and professional responsibility for a long time, and I will devote the majority of this essay to reporting on some of the enormous changes and developments in this field. However, I will begin with a mea culpa at a higher level of ethical consciousness than the rules that govern us, or are about to govern us, typically use. I have spent the last five years of my life writing ethical rules for ADR, and I am worried about the future of this field. There are many changes occurring in ADR, and …
Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine
Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine
Articles
Can a privately negotiated arbitration agreement deprive employees of the statutory right to sue in court on claims of discrimination in employment because of race, sex, religion, age, disability, and similar grounds prohibited by federal law? Two leading U.S. Supreme Court decisions, decided almost two decades apart, reached substantially different answers to this questionand arguably stood logic on its head in the process. In the earlier case of Alexander v. Gardner-Denver Co., involving arbitration under a collective bargaining agreement, the Court held an adverse award did not preclude a subsequent federal court action by the black grievant alleging racial discrimination. …
Paying The Price Of Process: Judicial Regulation Of Consumer Arbitration Agreements, Stephen Ware
Paying The Price Of Process: Judicial Regulation Of Consumer Arbitration Agreements, Stephen Ware
Stephen Ware
Arbitration clauses now appear in many of the form contracts through which consumers obtain goods, services and credit. This article considers the effect on prices of two sorts of judicial decisions: (1) decisions making consumer arbitration clauses generally enforceable, and (2) decisions refusing to enforce arbitration clauses that lack certain pro-consumer features.
The Effects Of Gilmer: Empirical And Other Approaches To The Study Of Employment Arbitration, Stephen Ware
The Effects Of Gilmer: Empirical And Other Approaches To The Study Of Employment Arbitration, Stephen Ware
Stephen Ware
A forthcoming article, Christine Jolls, Accommodation Mandates, 53 Stan. L. Rev., provides a framework for analyzing the effects of employment discrimination statutes. This article extends that framework to employment arbitration to describe the effects of enforcement of employees' pre-dispute arbitration agreements. The article also critically reviews empirical studies of these effects.