Law Commons^™

What’S In The Contract?: Rockefeller, The Hague Service Convention, And Serving Process Abroad, Thomas G. Vanderbeek

Vanderbilt Law Review

Today’s global economy relies on transnational commerce. The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”), implemented in 1965, encouraged transnational commerce by establishing a streamlined mechanism for serving foreign parties with process. More reliable international service methods helped ensure parties that they could resolve disputes with foreign parties through the courts. The Hague Service Convention thus created a bridge between civil and common law procedures on service while reducing some of the risks of engaging in business with foreign parties.

At the same time, the Hague Service Convention frequently …

Police Arbitration, Stephen Rushin

Vanderbilt Law Review

Before punishing an officer for professional misconduct, police departments often provide the officer with an opportunity to file an appeal. In many police departments, this appeals process culminates in a hearing before an arbitrator. While numerous media reports have suggested that arbitrators regularly overturn or reduce discipline, little legal research has comprehensively examined the outcomes of police disciplinary appeals across the United States.

In order to better understand the use of arbitration in police disciplinary appeals and build on prior research, this Article draws on a dataset of 624 arbitration awards issued between 2006 and 2020 from a diverse range …

The Arbitration-Litigation Paradox, Pamela K. Bookman

Vanderbilt Law Review

The Supreme Court's interpretation of the Federal Arbitration Act is universally touted as favoring arbitration. Its arbitration cases and decisions in other areas are also viewed as supporting the Court's more general hostility to litigation. These pro-arbitration and anti-litigation policies can be mutually reinforcing. Moreover, they appear to be mutually consistent, in part because the Court describes the essential features of arbitration as being "informal," "speedy," "efficient"-in short, the categorical opposite of litigation.

This Article contends that the Court's approach is not as "pro- arbitration" as it appears. On the contrary, the Court's pro-arbitration and anti- litigation values sometimes conflict. …

Bespoke Discovery, Jessica Erickson

Vanderbilt Law Review

The U.S. legal system gives contracting parties significant freedom to customize the procedures that will govern their future disputes.' With forum selection clauses, parties can decide where they will litigate future disputes.2 With fee-shifting provisions, they can choose who will pay for these suits. 3 And with arbitration clauses, they can make upfront decisions to opt out of the traditional legal system altogether.4 Parties can also waive their right to appeal,5 their right to a jury trial,6 and their right to file a class action.7 Bespoke procedure, in other words, is commonplace in the United States. Far less common, however, …

Arbitration And Article Iii, Peter B. Rutledge

Vanderbilt Law Review

Arbitration implicates serious constitutional concerns that have not received adequate attention in case law or commentary. Recent litigation in the D.C. Circuit over the constitutionality of the North American Free Trade Agreement ("NAFTA") represents the most recent, high-profile example. A centerpiece of NAFTA and its implementing legislation is an arbitration mechanism that divests Article III courts of virtually all jurisdiction over countervailing duty and anti-dumping claims and invests that authority in panels of Associate Professor of Law, Columbus School of Law, Catholic University of America. Arbitration implicates serious constitutional concerns that have not received adequate attention in case law or …

Equitable Estoppel And The Compulsion Of Arbitration, Alexandra A. Hui

Vanderbilt Law Review

Freedom of contract is a longstanding principle deeply rooted in American jurisprudence, protected by the Contract Clause and by the Due Process Clauses of the Fifth and Fourteenth Amendments.' Because of the legal system's high regard for freedom of contract, parties are free to negotiate virtually all issues, thus creating rights and limiting duties and obligations to one another.

In exercising this freedom to contract, parties often negotiate an arbitration clause. These clauses, also referred to as "predispute arbitration agreements," are contractual provisions agreed to in advance of any dispute that require a party to submit any and all future …

Arbitration Costs And Contingent Fee Contracts, Christopher R. Drahozal

Vanderbilt Law Review

A common criticism of arbitration is that its upfront costs (arbitrators' fees and administrative costs) may preclude consumers and employees from asserting their claims. Some commentators have argued further that arbitration costs undercut the benefits to consumers and employees of contingent fee contracts, which permit the claimants to defer payment of attorneys' fees and litigation expenses until they prevail in the case (and if they do not prevail, avoid such costs altogether). This paper argues that this criticism has it exactly backwards. Rather than arbitration costs interfering with the workings of contingent fee contracts, the contingent fee mechanism provides a …

Islamic Arbitration: A New Path For Interpreting Islamic Legal Contracts, Charles P. Trumbull

Vanderbilt Law Review

Muslims living in a secular, liberal democratic state face a fundamental dilemma: reconciling the obligation to live according to Shari'a with their civic duty to follow secular laws. Muslims attempt to resolve this dilemma in a number of ways. Some enter public office and try to influence the generally applicable laws of their country. Others advocate greater legal pluralism, thus allowing Muslims to settle certain disputes under Islamic law. In Canada, for example, the Islamic Institute for Civil Justice ("IICJ") announced plans to create Shari'a tribunals and claimed that it would begin arbitrating family and commercial disputes according to Islamic …

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 …

Equitable Estoppel And The Outer Boundaries Of Federal Arbitration Law: The Alabama Supreme Court's Retrenchment Of An Expansive Federal Policy Favoring Arbitration, David F. Sawrie

Vanderbilt Law Review

A consumer purchases a manufactured home from a commercial vendor.' As part of the commercial transaction, the consumer and vendor execute a sales agreement containing the following arbitration clause: "All disputes, claims, or controversies arising from or relating to this Contract or the relationships which result from this Contract... shall be resolved by binding arbitration .... ,, The manufacturer of the home is not a party to the sales contract. Rather, the manufacturer issues a separate warranty agreement in connection with the consumer's purchase.

When the consumer discovers defects in the home, the consumer sues both the commercial vendor and …

Introduction: Current Issues In Arbitration, Shannon E. Pinkston

Vanderbilt Law Review

"[An incompetent attorney can delay a case for years, while a competent attorney can delay it for even longer."'

This oft-repeated joke illustrates the public perception of the delays and expense that accompany courtroom litigation. Indeed, growing frustration with crowded courts and exorbitant legal costs fuels the widespread Alternative Dispute Resolution ("ADR") movement. Notwithstanding the dramatic increase in its use, ADR, defined as "procedures for settling disputes by means other than litigation," is not a novel idea. In fact, ADR was present in America as early as the seventeenth century. In certain parts of colonial America, voluntary arbitration was a …

Contracting For An Expanded Scope Of Judicial Review In Arbitration Agreements, Tom Cullinan

Vanderbilt Law Review

Arbitration is generally defined as a process in which parties voluntarily agree to submit a dispute to an impartial third person called an arbitrator,' who is often selected by the parties and is empowered to make a decision based on the evidence and the parties' arguments. Because of its contractual nature, arbitration claims a central role in settling today's commercial disputes. By structuring the agreement to fit their needs, parties can tailor the arbitration agreement to provide significant advantages over other forms of dispute resolution. For example, arbitration is generally faster, cheaper, and more private than litigation. The parties can …

Deceptive Negotiating And High-Toned Morality, Walter W. Steele, Jr.

Vanderbilt Law Review

Rising concern about the adequacy of the adversary system to deal with disputes quickly, fairly, and economically has led to increased interest in a broad range of alternate dispute resolution mechanisms such as arbitration and the use of mini-trials. Presently, however, negotiation between disputants or negotiation between counsel for disputants is the best understood and most often utilized alternative to litigation. In fact, negotiating prior to litigating is so pervasive that it might be thought of as an inherent part of the litigation process. From a lawyer's perspective, an advantage of negotiation over other forms of dispute resolution is that …

Is There Arbitration After Burns?: The Resurrection Of John Wiley & Sons, Sue J. Henry

Vanderbilt Law Review

The decisions of the United States Supreme Court in John Wiley & Sons, Inc. v. Livingston, NLRB v. Burns International Security Services, Inc.,' and Howard Johnson Co. v. Detroit Local Joint Executive Board' have raised, but left unanswered, two significant questions regarding the proper balancing of the parties' interests: (1) does the successor employer's duty to arbitrate with the union under the predecessor's contract survive a corporate change?;and (2) if so, does the arbitrator have the power to impose the substantive terms of the predecessor's labor agreement on the successor? To answer these questions, this Article initially will analyze in …

Deference Of Jurisdiction By The National Labor Relations Board And The Arbitration Clause, Alan C. Rosser

Vanderbilt Law Review

In 1935, when the Wagner Act was passed, arbitration was not used extensively as a method of settling labor disputes. Most parties to labor disputes relied on the National Labor Relations Board (NLRB) or the courts as means of settlement, rather than binding themselves to the decision of an arbitrator.' Gradually, however, with the increased avail-ability of more skilled arbitrators and the acute awareness of the costs of outside solution, arbitration has become a highly popular method of settling labor disputes. It is estimated that 94 percent of all collective bargaining agreements now provide for arbitration of grievances not settled …

Successorship And Collective Bargaining Agreements In Business Combinations And Acquisitions, Richard G. Vernon

Vanderbilt Law Review

Mergers, consolidations, and purchases of assets are important and frequent business transactions in our economy' and involve a great deal of planning and negotiating by the enterprises concerned. Until recently,the rights of employees and their representative labor unions generally were not considered to be a factor in these plans. In 1964, however, the Supreme Court, in John Wiley & Sons, Inc. v. Livingston, held that common law privity-of-contract principles, which lower courts traditionally had invoked to preclude survival of employees' rights, did not necessarily apply to collective bargaining agreements. Wiley was a nonunion corporation that had merged with a smaller …

Labor Law -- 1963 Tennessee Survey, Paul H. Sanders, Harvey Couch

Vanderbilt Law Review

I. ARBITRATION PROCESS

An active area of litigation today is concerned with the interrelation of the judicial process and the arbitration process in the settlement of labor disputes. It was observed in last year's survey that the Supreme Court of the United States had "embarked on the project of fashioning a body of federal common law governing the enforcement of collective bargaining agreements"' since the landmark decision in the Lincoln Mills case.

============================

II. PICKETING

The Labor-Management Reporting and Disclosure Act of 1959 amended section 8(b) of the National Labor Relations Act to make it an unfair labor practice for …

Insurance -- 1962 Tennessee Survey, Robert N. Covington

Vanderbilt Law Review

The courts of Tennessee were confronted by a number of interesting problems of insurance law during 1962. For the most part, the results were neither startling nor unsettling. There were, however, decisions that seem to qualify previous opinions, sometimes without citation, and there was one very troublesome opinion concerning credit life insurance.

Comment: The Enforcement Of Agreements To Arbitrate, Irving Kovarsky

Vanderbilt Law Review

Three 1960 Supreme Court decisions' have limited the ability of litigants to challenge successfully the jurisdiction and award-making powers of labor arbitrators. The limitations imposed by the Court upon the judiciary's power to question the arbitrator, a reversal of traditional procedure, is of great significance and will unquestionably necessitate some readjustment on the part of management. This article attempts to place these recent developments in perspective and to suggest briefly certain practical changes in the attitudes of courts and contract negotiators that may result from them.

Labor Law And Workmen's Compensation--1959 Tennessee Survey, Paul H. Sanders, J. Gilmer Bowman, Jr.

Vanderbilt Law Review

What is the meaning of the term "actual cash value" in the standard fire policy? The middle section of the court of appeals, following a prior Tennessee case and the weight of authority, held that the phrase is synonomous with "market value" only where the goods are readily replaceable in a current market. Where there is no market, or where the market value is inadequate to properly indemnify the insured, "actual cash value" means the "'value to the owner' or the loss he suffers in being deprived of the goods." Since the goods involved in this case were personal effects, …

Act Relating To Arbitration And To Make Uniform The Law With Reference Thereto, Law Review Staff

Vanderbilt Law Review

A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract. This act also applies to arbitration agreements between employers and employees or between their respective representatives (unless otherwise provided in the agreement.)

Vacation Of Awards For Fraud, Bias, Misconduct And Partiality, Alan H. Rothstein

Vanderbilt Law Review

The role of the arbitration process in today's society is to supplant the often laborious and time consuming procedures of the courts with a more informal process wherein the parties to a controversy, by agreement, give one or more individuals effective power to render a decision on a particular matter, or on future controversies as they arise. In order that the grant of the power be effective, and that a resulting award be obeyed, the courts will generally enforce a properly made award without examination of the underlying issues or evidence of the controversy developed during the arbitration. Judicial prescriptions …

A Symposium On Arbitration, Sylvan Gotshal

Vanderbilt Law Review

Twenty years ago an article on arbitration would have been an oddity in a law review. Significant of the change in thinking with regard to arbitration on the part of attorneys, bar associations, and law schools is the fact that within the past few months several law journals and reviews have had major articles devoted to various aspects of arbitration. This new literature in the legal field serves as notice to the practitioner and to the law student that arbitration has come of age. The editors of the Vanderbilt Law Review and the faculty of the Law School are, therefore, …

Drafting Of Grievance And Arbitration Articles Of Collective Bargaining Agreements, Charles A. Reynard

Vanderbilt Law Review

When the parties to collective bargaining negotiations formulate the provisions of their contract relating to grievances and arbitration, they are establishing the basic system of private administrative law that will govern the plant community for the period of the agreement. This is obviously a task that involves more than mere words and phrases. The maturity of their relationship, their respective understandings of the place of collective bargaining in our industrial society, the size and nature of the plant, and innumerable other considerations will substantially influence the choice of language and procedures adopted in the framing of these provisions. Because of …

Informing The Arbitrator, Robert L. Howard

Vanderbilt Law Review

In any arbitration proceeding the representative of each party has a two-fold obligation of major importance to the arbitrator, the effective fulfillment of which is essential to the success of the arbitration process. In the first place, the arbitrator must be advised in clear and concise terms as to exactly what constitutes the issue or issues to be determined, which, of necessity, to be effective, must be preliminary to the presentation of the case proper. In the second place, it is, of course, equally important to have a clear presentation of each party's case after the issue has been formulated. …

The Federal Courts And Indirect Criminal Contempt, Philip L. Peeler

Vanderbilt Law Review

The purpose of this note will be to deal with one method of implementation, i.e., the use of the court's power to punish for criminal contempt particularly in regard to decrees, and the extent to which and under what circumstances persons not directly named in those decrees may be subjected to punishment for conduct of a criminal nature which interferes with the enforcement of those decrees...

Judicial decisions which conflict with settled moral and ethnological convictions are not translated overnight into effective standards of acceptable behavior. The decisions, however, must be implemented.'The purpose of this note will be to deal …

The Proposed Uniform Arbitration Act Should Not Be Adopted, Alexander H. Frey

Vanderbilt Law Review

The primary reason why the proposed Uniform Arbitration Act should not be adopted is because, by an express provision in section 1, the Act is made applicable to "arbitration agreements between employers and employees or between their respective representatives." My experience as an arbitrator has been confined almost exclusively to labor disputes of which I have arbitrated hundreds. Consequently, I do not purport to be able to judge whether or not the proposed Act would be a valuable adjunct to the existing arbitration law in the area of commercial arbitration. But I am convinced that, if applied to labor arbitrations, …

Some Procedural Problems In Arbitration, Benjamin Aaron

Vanderbilt Law Review

By training and experience, lawyers are accustomed to deal with problems within a well-defined procedural framework. Familiarity with established rules of conduct, however archaic and nonsensical they may be, apparently does not breed contempt; on the contrary, it seems to enhance the average lawyer's feelings of security and self-confidence. Conversely, he is apt to become uneasy, irritable, even indignant, when compelled to function within a system of loose and flexible procedures, inconsistently applied according to a logic that to him is at best obscure and often inscrutable. The attorney who is not a labor relations specialist, and who only occasionally …

The Nature Of The Arbitration Process, William M. Hepburn, Pierre R. Loiseaux

Vanderbilt Law Review

The process of reaching a decision in labor-management arbitrations involves many uncertain factors. As to the final result in a case, we can perhaps say that it is in accord with the contract of the parties or that it is not; that it is "fair" or not; "practical" or unworkable; or that it accords with "public policy" or violates it. Some or all of the criteria discussed in this article may be satisfied in a particular case, but, as is proper, the parties are most often interested in basic equities, in whether an award can be brought within the ambit …

Book Notes, Law Review Staff

Vanderbilt Law Review

The Law of Torts By Fowler V. Harper and Fleming James, Jr. Boston: Little Brown & Co., 1956. Pp. xiv, 2062. $60.00.

This treatise is a valuable and significant contribution to Tort law.It is composed of two volumes of text and a third volume containing tables of cases, statutes and articles, and an index.

========================================

Management Rights and the Arbitration Process

Edited by Jean T. McKelvey. Washington: Bureau of National Affairs, 1956. Pp. viii,237. $3.50. This is a collection of the papers delivered at the Ninth Annual Meeting of the National Academy of Arbitrators held in January,1956. They include treatments …