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Yeshiva University, Cardozo School of Law

2022

CJCR Blog

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Full-Text Articles in Law

The Negative Effects Of Arbitration Clauses In Meal Delivery Service Subscriptions, Amanda Pasternak Dec 2022

The Negative Effects Of Arbitration Clauses In Meal Delivery Service Subscriptions, Amanda Pasternak

CJCR Blog

This past June, Daily Harvest, a vegan meal delivery service that sells soups, smoothies, and more recalled one of its products, French Lentil + Leek Crumbles, after hundreds of consumer reports of gastrointestinal illness, potential liver function issues, and other adverse reactions. According to the Food and Drug Administration (FDA), from April 28 to June 17, 2022, around 28,000 units of the recalled product were distributed to consumers throughout the United States via online sales, direct delivery, and retail sales. Samples were also given to a small number of consumers. Daily Harvest received around 470 reports of illness, which the …


Keeping The Economy On Track: The Role Of Mediation, Super Mediation, And The National Mediation Board In Rail Labor Disputes, Chelsea Hill Nov 2022

Keeping The Economy On Track: The Role Of Mediation, Super Mediation, And The National Mediation Board In Rail Labor Disputes, Chelsea Hill

CJCR Blog

The threat of strike action by America’s railway workers in late summer 2022, in response to an inability to agree to a new contract acceptable to both management and labor, raised fears of a national economic shutdown. Although an agreement is pending ratification by rail union membership, a potential rail strike in an already-fragile economy highlighted an inherent tension in the way collective bargaining in the rail industry is governed under the Rail Labor Act (“RLA”). The RLA established a procedure-heavy process with designated roles for multiple federal government actors and an emphasis on mediation, establishing a new, independent executive …


Misapplication Of The Sliding Scale Or A Nod To Arbitration Agreements?, Elliot Tepfer Nov 2022

Misapplication Of The Sliding Scale Or A Nod To Arbitration Agreements?, Elliot Tepfer

CJCR Blog

The Eleventh Circuit’s recent decision in Lambert v. Signature Healthcare LLC. (11th Cir. July 8, 2022), pushes the limit in upholding arbitration clauses in contracts. In June 2012, Claire Lambert was 57 years old and was unemployed for approximately six months before accepting a position at Signature Healthcare, LLC (“Signature”). As a condition of her employment with Signature, Lambert signed an arbitration agreement that covered claims relating to recruitment, employment, or termination of employment. Lambert also signed an acknowledgment that she had received Signature’s employee handbook. The handbook acknowledgment stated that Signature may unilaterally change or discontinue any policy in …


Will Mediation Return To In-Person Only Or Will The Future Hold For An Option Of Zoom Mediation?, Sydney Grant Oct 2022

Will Mediation Return To In-Person Only Or Will The Future Hold For An Option Of Zoom Mediation?, Sydney Grant

CJCR Blog

March 2020 rapidly changed the way the legal world operated. Before the pandemic, 100% of mediations were conducted in-person. However, due to health concerns, the ADR community had to quickly come up with a solution on how to continue conducting mediations in a safe, efficient, and effective manner. Questions arose about whether virtual mediations would be as effective as in-person ones and if the mediator would be able to establish the same rapport with the parties as they were able to in-person.

This post was originally published on the Cardozo Journal of Conflict Resolution website on October 12, 2022. The …


Reconsideration Of Forced Arbitration In Data Privacy Legislation, Andy (Chen Di) Xu Oct 2022

Reconsideration Of Forced Arbitration In Data Privacy Legislation, Andy (Chen Di) Xu

CJCR Blog

Pre-dispute arbitration principles were established in 1925 by Congress through the Federal Arbitration Act (FAA) and were meant to “create an efficient way for businesses with comparable bargaining power to negotiate and agree upon an alternative means of conflict resolution.” However, the driving legal maxims behind the FAA failed to address cases with a large power imbalance between the parties. Arbitration in such cases usually see a company “likely be[ing] represented in arbitration by lawyers who are well-versed in the process and the issue involved, while the wronged customer must find an attorney willing to represent them for what is …


Trouble On The Del Mar Bluffs: The Latest Use Of Mediation In Land Use Disputes, Nicholas Beudert Aug 2022

Trouble On The Del Mar Bluffs: The Latest Use Of Mediation In Land Use Disputes, Nicholas Beudert

CJCR Blog

The California Coastal Commission has asked the Surface Transportation Board (“STB”) to mediate a dispute between the Commission, the city of Del Mar, California, and the North County Transit District (“NCTD”) over the NCTD’s plan to install a safety fence railing along a train line running along the Del Mar Bluffs. The Coastal Commission and Del Mar residents oppose the plan, saying it will damage the bluffs and ruin the community’s view and access to the beach. The NCTD says that the safety railing is necessary to limit access to the rails and stop people from trespassing and being injured. …


The Use Of Restorative Justice To Address The Rise In Content Moderation Disputes, Elad Michael Aug 2022

The Use Of Restorative Justice To Address The Rise In Content Moderation Disputes, Elad Michael

CJCR Blog

In February 2022, Spotify apologized for the controversy surrounding Joe Rogan who posted racial, insensitive content on the company’s platform. Spotify’s CEO commented that the company would consult outside advisors on those issues, a move that is reminiscent of Facebook’s introduction of its Oversight Board. While the Board provides quasi-judicial review over content moderation issues submitted by Facebook or its users, it can also serve as a model for restorative justice in the content moderation area.

This post was originally published on the Cardozo Journal of Conflict Resolution website on August 16, 2022. The original post can be accessed via …


The “New Era” Of Adr, Alexis Narotzky Aug 2022

The “New Era” Of Adr, Alexis Narotzky

CJCR Blog

On January 4, 2022, customers who purchased tickets via Ticketmaster since July 2021 sued Ticketmaster and its parent company Live Nation Entertainment, Inc. (“Live Nation”) alleging “widespread monopolization” related to fees charged with all ticket purchases. This litigation is a follow-up to a January 2021 complaint alleging the same. In response to the initial complaint, Ticketmaster changed its arbitration forum from JAMS to New Era ADR (“New Era”).

This post was originally published on the Cardozo Journal of Conflict Resolution website on August 13, 2022. The original post can be accessed via the Archived Link button above.


Cjcr Publishes Volume 23, Issue 3 (Symposium 2022), Elan Kirshenbaum Jul 2022

Cjcr Publishes Volume 23, Issue 3 (Symposium 2022), Elan Kirshenbaum

CJCR Blog

Third of three issues to be published in 2022 is now available online; print edition to be released July 18.

This post was originally published on the Cardozo Journal of Conflict Resolution website on July 6, 2022. The original post can be accessed via the Archived Link button above.


Actors’ Equity Expands Membership, Remy Leelike Jun 2022

Actors’ Equity Expands Membership, Remy Leelike

CJCR Blog

Amidst the reopening of theaters after the coronavirus pandemic shutdown, Actors’ Equity Association (“Actors’ Equity”) was criticized for not adequately meeting the needs of its membership and for reacting too slowly in announcing its Covid Safety Plans, which left theaters without enough time to become compliant. At the time, one fear that its members had was that, because Actors’ Equity does not usually allow its members to perform without a union contract, theaters might forgo union contracts for their productions and turn to the non-union labor pool instead. At the same time, Actors’ Equity was in the process of rolling …


Sdny Reaffirms Strong Deference Owed To Arbitrators, Ryan Katz May 2022

Sdny Reaffirms Strong Deference Owed To Arbitrators, Ryan Katz

CJCR Blog

On November 16, 2021, the United States District Court for the Southern District of New York affirmed an arbitration tribunal’s decision that International Engineering and Construction (“IEC”) pay over $8 million plus interest to GE Oil and Gas, as a result of their dispute with Baker Hughes (formerly GE Oil and Gas) over construction delays while building a gas plant in Nigeria. Notably, the court stated that IEC’s arguments “might have traction” if the court were the first to hear the dispute, but given the strong deference owed to arbitrators, IEC’s arguments were insufficient to overturn the order.

This post …


Cjcr Publishes Volume 23, Issue 2 (Summer 2022), Elan Kirshenbaum May 2022

Cjcr Publishes Volume 23, Issue 2 (Summer 2022), Elan Kirshenbaum

CJCR Blog

Second of three issues to be published in 2022 is now available online; print edition to be released May 31.

This post was originally published on the Cardozo Journal of Conflict Resolution website on May 19, 2022. The original post can be accessed via the Archived Link button above.


Regulatory Adr For A Consensus Vaccine Standard, Avraham Snider Apr 2022

Regulatory Adr For A Consensus Vaccine Standard, Avraham Snider

CJCR Blog

On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) issued an emergency temporary standard (“ETS”) mandating that businesses with over 100 employees ensure that their employees be vaccinated against COVID-19 or be tested weekly for the virus. The temporary regulation set off a whirlwind of litigation from business groups and several state attorneys general. The cases were consolidated and received different rulings from the Fifth and Sixth Circuits, leading the U.S. Supreme Court to step in. In a per curium opinion (“NFIB case”), the Supreme Court found that a statute on workplace hazards did not justify a mandate …


Benefits Of Using Collaborative Lawyering Outside Of Family Law Disputes, Rachel Gershengoren Apr 2022

Benefits Of Using Collaborative Lawyering Outside Of Family Law Disputes, Rachel Gershengoren

CJCR Blog

Collaborative lawyering is a process of dispute resolution that combines aspects of mediation and negotiation with an agreement to settle. The central elements of collaborative lawyering are that all the parties involved sign a written participation agreement that ensures neither the clients nor the lawyers “make use of or threaten to make use of the court process during collaboration,” and if the clients must resort to litigation, the lawyers are “fired.” Thus, there is a financial incentive for all to reach a settlement, and the attorneys work together as colleagues, not adversaries. Another essential element of collaborative lawyering that distinguishes …


How Covid-19 May Have Rendered Defenses Against Forum Non Conveniens & Forum Selection Clauses Obsolete, Joseph Pomerantz Apr 2022

How Covid-19 May Have Rendered Defenses Against Forum Non Conveniens & Forum Selection Clauses Obsolete, Joseph Pomerantz

CJCR Blog

“Forum selection clauses are enforced because they provide certainty and predictability in the resolution of disputes.” Under New York law, forum selection clauses are deemed prima facie valid. However, if a party demonstrates that the enforcement of the forum selection is unreasonable under the circumstances such that: (1) the clause was the product of fraud; (2) enforcement would be unjust or unreasonable; (3) proceeding with the contractual forum would be so difficult or inconvenient that for all practical purposes the non-enforcing party would essentially be deprived of their day in court; or (4) enforcement would go against public policy, then …


Arbitration In The Entertainment Industry, Michelle Palagi Apr 2022

Arbitration In The Entertainment Industry, Michelle Palagi

CJCR Blog

The entertainment industry is driven by contractual agreements between actors, film studios, and countless behind-the-scenes players. When disputes inevitably arise, it is often within the parties’ best interests to resolve the issues quickly and privately, without garnering media attention. Arbitration provides disputants this avenue and it is why binding arbitration clauses are so prevalent within the industry. Arbitration clauses within a contract state that, should an issue arise between the parties, the parties will submit the dispute to arbitration. Arbitration allows for the parties to select an arbitrator, with a facilitator overseeing the negotiation, resulting in a legally binding outcome. …


Internal Arbitration As A Means For Resolving Youtube’S Rampant Copyright Problem, Thomas Mcgovern Mar 2022

Internal Arbitration As A Means For Resolving Youtube’S Rampant Copyright Problem, Thomas Mcgovern

CJCR Blog

YouTube, like other social media platforms, has given countless individuals the ability to produce and monetize their own videos in a way that has begun to mirror and even revolutionize traditional media and entertainment production. From talk shows and educational programs to cooking shows—and everything in between—“content” creators,” as they are called, have provided lucrative channels for viewership. One of the most notable YouTubers, with the handle MrBeast, has reportedly accrued a net worth of $25 million.

This post was originally published on the Cardozo Journal of Conflict Resolution website on March 27, 2022. The original post can be accessed …


Providing Certainty In An Uncertain Time: How Alternative Dispute Resolution Can Help Natural Disaster Victims Rebuild, Alexandra Rindenow Mar 2022

Providing Certainty In An Uncertain Time: How Alternative Dispute Resolution Can Help Natural Disaster Victims Rebuild, Alexandra Rindenow

CJCR Blog

The effects of climate change, specifically naturally disasters, have no borders or boundaries. In recent years, there has been an uptick in natural disasters, and in the last thirty years, the number of climate-related disasters has tripled. These disasters continue to have catastrophic effects, annually forcing over twenty million people from their homes. The damage caused by natural disasters is immediate, and it is often something for which people are not adequately prepared. Swift action must be taken to ensure that these people are provided with their basic needs. The burdens of these disasters fall on both claimants and defendants—claimants …


The Status Of Independent Truck Drivers Amid The Supply Chain Crisis, Joshua Becker Mar 2022

The Status Of Independent Truck Drivers Amid The Supply Chain Crisis, Joshua Becker

CJCR Blog

As the supply chain shortage continues, many truck drivers across the country find themselves disturbed with both their employers’ administrative decisions in response to pressures from the federal government and their working conditions. In the 2019 case, New Prime v. Oliveira, the U.S. Supreme Court declined to compel arbitration of wage and hour class action lawsuits brought by an interstate trucker and independent contractor. The Court unanimously ruled that the exemption language in the Federal Arbitration Act (“FAA”), which includes “seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,” also includes owner-operators (those who …


Cjcr Publishes Volume 23, Issue 1 (Spring 2022), Elan Kirshenbaum Mar 2022

Cjcr Publishes Volume 23, Issue 1 (Spring 2022), Elan Kirshenbaum

CJCR Blog

The Cardozo Journal of Conflict Resolution—the country’s preeminent legal journal of arbitration, negotiation, mediation, settlement, and restorative justice—today published the web edition of Volume 23, Issue 1 (Spring 2022).

The print edition of the issue is set to be released on March 9. This post was originally published on the Cardozo Journal of Conflict Resolution website on March 2, 2022. The original post can be accessed via the Archived Link button above.


The New Arbitration Class Action: Filing Thousands Of Individual Arbitration Claims, Yanni Thanopoulos Feb 2022

The New Arbitration Class Action: Filing Thousands Of Individual Arbitration Claims, Yanni Thanopoulos

CJCR Blog

Arbitration clauses that prohibit class action lawsuits guard companies from class action litigation. The Supreme Court has disparaged the use of class arbitration and has upheld class action waivers. As a result, if a contract contains an arbitration clause that bars class actions, the only recourse under the contract is to pursue individual arbitration. If a claim yields only a small amount of damages, the claimant would essentially be left with no recourse: the claimant would not be able to join a class action, and the cost of individual arbitration would outweigh the potential reward. Thus, arbitration clauses that forbid …


Community Mediation For A Divided Main Street, John Dellamore Feb 2022

Community Mediation For A Divided Main Street, John Dellamore

CJCR Blog

The political division across the United States has increasingly been documented over the last several years. Issues ranging from police brutality to COVID-19 restrictions have led many to take to the streets in protest. A unique feature of these protests, at least in terms of the last few decades, is that they are not isolated to major cities. In the context of Black Lives Matter, many have noted the increased prevalence of protests among small town residents. While Black Lives Matter was likely a significant catalyst to the demonstrations in these towns, participation amongst residents has focused on a broad …


Arbitration As A Solution To Commercial Cannabis Contract Clashes, Steven Frydman Feb 2022

Arbitration As A Solution To Commercial Cannabis Contract Clashes, Steven Frydman

CJCR Blog

With seventeen states completely legalizing recreational cannabis use and many other states having legalized it for medical use or at least having decriminalized it, it is no surprise that the cannabis industry is growing, and with its growth comes a need for laws regulating it. Despite these changes in state law, cannabis is still an illegal drug on the federal level, classified as a “Schedule I” drug under the Controlled Substances Act. Of course, this dichotomy in the law creates federalism concerns and problems for those in the cannabis industry when they attempt to access the courts for relief in …


Conflict And Compromise Over U.S.-E.U. Data Flows, Lydia Balestra Feb 2022

Conflict And Compromise Over U.S.-E.U. Data Flows, Lydia Balestra

CJCR Blog

Businesses and other entities that need to make transatlantic cross-border data transfers have waited with bated breath over the past year for a new agreement, after the Court of Justice of the European Union (“CJEU”) invalidated a European Union (“E.U.”) agreement with the United States that made such data transfers legally possible. Negotiations to develop a long-term, reliable solution are being conducted through the new U.S.-E.U. Trade and Technology Council (“Trade and Technology Council”), which met in Pittsburg, PA, in September 2021. Organizations ranging from Google to the U.S. Chamber of Commerce have stressed the urgency of finding a replacement. …


Practical Concerns For Automated Mediation, Myeonghwan Cha Jan 2022

Practical Concerns For Automated Mediation, Myeonghwan Cha

CJCR Blog

Although traditional mediations involve a human mediator, automated mediation not only provides a platform for virtual mediations and enhances communication of information, but also actively facilitates disputes through the use of artificially intelligent (“AI”) systems. Such systems are capable of identifying interests and goals, refining preferences, calculating tradeoffs, and creating potential solution packages. However, aside from the ethical concerns of automated mediation, there are various practical issues that require attention. Automated mediation systems, like Smartsettle, raise such issues, specifically concerns of creativity, care, and confusion.

This post was originally published on the Cardozo Journal of Conflict Resolution website on January …


The Diversity Issue In Arbitration, Tanuja Krishna Jan 2022

The Diversity Issue In Arbitration, Tanuja Krishna

CJCR Blog

Millions of Americans are subject to forced arbitration agreements. This means that they are barred from suing in court and are required to pursue their claims through arbitration proceedings. As much as proponents of arbitration argue that this process is a more efficient way to resolve disputes, there are a number of issues associated with it. However, aside from the commonly discussed fairness aspect, a bigger problem lies within arbitration: diversity. According to a new report from the American Association for Justice (“AAJ”), arbitrators at three of the largest arbitration service providers in the country—JAMS, the American Arbitration Association, and …


Covid-19 Eviction Moratoriums: Mediating Residential Landlord-Tenant Disputes, Stephanie Schatz Jan 2022

Covid-19 Eviction Moratoriums: Mediating Residential Landlord-Tenant Disputes, Stephanie Schatz

CJCR Blog

The coronavirus (“COVID-19”) pandemic prompted many unprecedented restrictions to be put in place throughout the world. These restrictions caused businesses to shut down, resulting in lost jobs and income. This led to many individuals’ inability to afford basic expenses, such as rent. Due to tenants’ loss of income and inability to fulfill their lease obligations, in March 2020, many states issued executive orders requiring a moratorium, or a suspension, on commercial and residential evictions for tenants who demonstrated that they were unable to pay rent due to the COVID-19 pandemic.

This post was originally published on the Cardozo Journal of …


Turning To Online Dispute Resolution In Responding To Unexpected Rises In Construction Costs, Jonah Lax Jan 2022

Turning To Online Dispute Resolution In Responding To Unexpected Rises In Construction Costs, Jonah Lax

CJCR Blog

The pandemic has caused the price of construction materials to increase at historic levels. For example, in June 2021, the price of softwood lumber was up 125.3% from twelve months prior, and the price of soft plywood products was up 207% over that same period. This put contractors with fixed price contracts in a difficult position of either keeping their commitment at a significant loss or facing a breach of contract claim. A fixed price contract or stipulated sum contract in construction is where parties set a total established price upfront for the entire project. Fixed price contracts accounted for …


The Role Of The Nba’S Collective Bargaining Agreement In Covid-Related Game Absences, Madeline S. Nelson Jan 2022

The Role Of The Nba’S Collective Bargaining Agreement In Covid-Related Game Absences, Madeline S. Nelson

CJCR Blog

With the National Basketball Association’s (“NBA”) 75th Anniversary on the horizon, the NBA had large plans for this season, but an unforeseen circumstance switched the focus of the season from the 75th Anniversary to the various coronavirus (“COVID-19”) vaccination mandates. NBA Commissioner Adam Silver announced in September that unvaccinated players in New York and San Francisco will not be paid if they miss games. The inability to play is not only due to each city’s mandates that require eligible people to be vaccinated for entry into public places—including stadiums and arenas—but also due to teams not wanting their players to …