Law Commons^™

Evaluating Employment Arbitration: A Call For Better Empirical Research, Samuel Estreicher, Michael Heise, David Sherwyn

Cornell Law Faculty Publications

Since at least 1991, issues surrounding mandatory arbitration of employment and other disputes have intrigued, perplexed, angered, gratified, and confounded academics, politicians, lawyers, and others. As with many legal issues, the first wave of scholarly work centered on the law. As the law has pretty much settled, academics have turned to empirical work, focusing on how employment arbitration works, and how it compares to employment litigation. In part due to pressure from California legislation, the American Arbitration Association (“AAA”), the nation’s leading provider of arbitration services, opened access to its data base. Owing to inevitable data limitations, most analyses have …

Inside The Arbitrator's Mind, Susan D. Franck, Anne Van Aaken, James Freda, Chris Guthrie, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Arbitrators are lead actors in global dispute resolution. They are to global dispute resolution what judges are to domestic dispute resolution. Despite its global significance, arbitral decision making is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions, rather than fully deliberative decisions. We also find evidence that casts doubt on the conventional wisdom that arbitrators render “split the baby” decisions. Although direct comparisons are difficult, we find that arbitrators generally perform at least as well as, but never …

Punitive Damages In Securities Arbitration: An Empirical Study, Stephen Choi, Theodore Eisenberg

Cornell Law Faculty Publications

This article provides the first empirical analysis of punitive damages in securities arbitrations. Using a data set of over 6,800 securities arbitration awards, we find that claimants prevailed in 48.9 percent of arbitrations and that 9.1 percent of those claimant victories included a punitive damages award. The existence of a punitive damages award was associated with claims that suggested egregious misbehavior and with claims that provided higher compensatory awards. The pattern of punitive awards is more consistent with a traditional view of punitive damages that incorporates a retributive component than with a law and economics emphasis on efficient deterrence. We …

Why Adr Programs Aren’T More Appealing: An Empirical Perspective, Michael Heise

Cornell Law Faculty Publications

Standard law and economic theory suggests that litigating parties seeking to maximize welfare will participate in alternative dispute resolution (ADR) programs if they generate a surplus. ADR programs claim to generate social surplus partly through promoting settlements and reducing case disposition time. Although most associate ADR programs with trial courts, a relatively recent trend involves appellate court use of ADR programs. The emergence of court-annexed ADR programs raises a question. Specifically, if ADR programs achieve their goals of promoting settlements and reducing disposition time, why do some courts find it necessary to impose ADR participation? Attention to ADR’s ability to …

Burden Of Proof, Prima Facie Case And Presumption In Wto Dispute Settlement, John J. Barceló Iii

Cornell Law Faculty Publications

The essay maintains that the WTO Appellate Body's concepts and terminology concerning a claimant's burden of proof-the concepts of prima facie case, presumption, and burden shifting-are disturbingly ambiguous and potentially misleading. This is so whether one thinks of these terms from either a common law or a civil law perspective. In the face of the current ambiguity, a future panel might understand the AB's prima facie case concept to require an overwhelming level of proof from the claimant. On the other hand, a different panel might allow a rather weak level of claimant's proof to meet the prima facie requirement, …

Mandatory Arbitration For Customers But Not For Peers: A Study Of Arbitration Clauses In Consumer And Non-Consumer Contracts, Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin

Cornell Law Faculty Publications

We conducted a study of contractual practices by well-known firms marketing consumer products, comparing the firms' consumer contracts with contracts the same firms negotiated with business peers. The frequency of arbitration clauses in consumer contracts has been studied before, as has the frequency of arbitration clauses in non-consumer contracts. Our study is the first to compare the use of arbitration clauses within firms, in different contractual contexts.

The results are striking: in our sample, mandatory arbitration clauses appeared in more than three-quarters of consumer contracts and less than one tenth of non-consumer contracts (excluding employment contracts) negotiated by the same …

Cultural Conflicts, Annelise Riles

Cornell Law Faculty Publications

This article builds upon insights from contemporary anthropology to rethink the field of conflicts as a matter of cultural conflict. This approach shifts the analysis away from the dominant approaches in the discipline, which take as their primary metric either questions of state power or of individual rights. Drawing on a case of conflict between Native American legal norms and U.S. state and federal law, this article argues for a conflicts methodology that takes seriously the role of cultural description in the process of cultural adjudication. To do so, in turn will require us to adopt a more sophisticated, flexible, …

The Flight From Arbitration: An Empirical Study Of Ex Ante Arbitration Clauses In The Contracts Of Publicly Held Companies, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

Informed parties bargaining for their mutual advantage will tend to agree to provisions that maximize the social surplus. Such bargaining includes provisions regarding the resolution of disputes that might arise under the contract. Thus, if a form of alternative dispute resolution, such as binding arbitration, provides greater social benefits than litigation, the dynamics of the process should tend to induce the parties to include a clause submitting future disputes to arbitration. This Article studies the actual contracting practices of large, sophisticated actors with respect to arbitration clauses. We examined over 2800 contracts, filed with the Securities Exchange Commission (SEC) in …

Assessing The Case For Employment Arbitration: A New Path For Empirical Research, David Sherwyn, Samuel Estreicher, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

Arbitration And Litigation Of Employment Claims: An Empirical Comparison, Theodore Eisenberg, Elizabeth Hill

Cornell Law Faculty Publications

The authors conducted empirical research comparing court case and arbitrated outcomes for employment disputes. In cases not involving civil rights claims, they found little evidence that arbitrated outcomes materially differed from trial outcomes where the claimant was a higher-paid employee. Moreover, they found no statistically significant differences between employee win rates or in the median or mean awards in arbitration and litigation. They also reported evidence indicating that arbitrated disputes conclude more quickly than litigated disputes.

Who Decides The Arbitrators' Jurisdiction? Separability And Competence-Competence In Transnational Perspective, John J. Barceló Iii

Cornell Law Faculty Publications

No abstract provided.

User Friendly: Informality And Expertise, Annelise Riles

Cornell Law Faculty Publications

No abstract provided.

Dispute Resolution In The Boundaryless Workplace, Katherine V.W. Stone

Cornell Law Faculty Publications

Since the Supreme Court's decision Gilmer v. Interstate/Johnson Lane Corp. which compelled an employee to submit his age discrimination claim to arbitration under the Federal Arbitration Act (FAA), there has been a dramatic increase in the number of nonunion firms adopting arbitration systems. At the same time, there has been a flood of lawsuits challenging these employment systems, and a corresponding avalanche of judicial opinions addressing the legal issues left open in Gilmer – issues such as the problematic nature of consent in employment arbitration, the deficiencies in due process, and the applicability of the FAA to employment contracts. These …

Rustic Justice: Community And Coercion Under The Federal Arbitration Act, Katherine V.W. Stone

Cornell Law Faculty Publications

Arbitration clauses are appearing in a wide variety of consumer transactions, including routine product purchase forms, residential leases, housing association charters, medical consent forms, banking and credit card applications, and employment handbooks. In the past fifteen years, the Supreme Court has reinterpreted the Federal Arbitration Act (FAA) so as to grant tremendous deference to private arbitral tribunals. By doing so, it has altered the landscape of civil litigation, taking many consumer claims out of the legal system and relegating them to private tribunals. In this Article, Professor Stone assesses the recent trend toward the privatization of civil justice in light …

Mandatory Arbitration Of Individual Employment Rights: The Yellow Dog Contract Of The 1990s, Katherine V.W. Stone

Cornell Law Faculty Publications

No abstract provided.

Settlement Class Actions And The Limits Of Adjudication, James A. Henderson Jr.

Cornell Law Faculty Publications

This paper is the Comment for a symposium on Individualized Justice, Mass Torts, and "Settlement Class Actions."

The Legacy Of Industrial Pluralism: The Tension Between Individual Employment Rights And The New Deal Collective Bargaining System, Katherine V.W. Stone

Cornell Law Faculty Publications

No abstract provided.

Agreements Changing The Forum For Resolving Malpractice Claims, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.