Law Commons^™

National Labor Relations Board V. Murphy Oil Usa, Inc.: A Test Of Might, Elizabeth Storey

Duke Journal of Constitutional Law & Public Policy Sidebar

National Labor Relations Board v. Murphy Oil USA pits two co-equal federal statutes head-to-head. The Federal Arbitration Act mandates that all arbitration clauses be enforced. The National Labor Relations Act grants employees the right to act collectively to bring claims against employers. The Supreme Court must decide whether arbitration clauses in employment contracts, which require employees to arbitrate work-related disputes on an individual basis, contravene the interests of the NLRA. This commentary argues that the Supreme Court should recognize how these arbitration clauses undermine and subvert the protections of the NLRA by disallowing employees to act collectively. By invoking the …

International Investment Arbitration In Laos: Large Issues For A Small State, Romesh Weeramantry, Mahdev Mohan

Research Collection Yong Pung How School Of Law

Laos is no stranger to international investment arbitration. Despite its status as one of Southeast Asia's least developed countries, it has had an Investment Law for more than two decades and is also a party to several bilateral and Association of South East Asian Nations (ASEAN)-related investment agreements. More recently, two investment treaty claims have been made against it, one of which has given rise to an award challenge that went all the way to Singapore's highest court. This article will examine the history, evolution and current iteration of Laos' relationship with international investment law and focus on the two …

Third-Party Funding In International Arbitration, Victoria Sahani

Shorter Faculty Works

Third-party funding, also known as litigation funding, is a financing method in which an entity that is not a party to a particular dispute funds another party’s legal fees or pays an order, award, or judgment rendered against that party, or both. Third-party funding is a growing phenomenon that is becoming more mainstream in both the litigation and the international arbitration communities. The leading jurisdictions worldwide — in terms of volume and sophistication of third-party funding arrangements — are Australia, the U.K., the U.S. and Germany. In the past, third-party funding was a smaller niche market, but in recent years, …

International Investment Law Through The Lens Of Global Justice, Steven Ratner

Law & Economics Working Papers

The last decade has witnessed a series of criticisms from states, NGOs, and scholars of international investment law’s rules and procedures. Running in parallel, and for a longer period, political philosophers have developed theories about what would constitute a just international economic order. Yet international law and philosophy have not directly engaged with one another regarding the justice of international investment law. This article attempts to breach that gap by analyzing the key critiques of investment law from the perspective of theories of global justice. Philosophical approaches are useful for appraising investment law because they offer a rigorous framework for …

Can Nfl Players Obtain Judicial Review Of Arbitration Decisions On The Merits When A Typical Hourly Union Worker Cannot Obtain This Unusual Court Access?, Michael Z. Green, Kyle T. Carney

Faculty Scholarship

Several recent court cases, brought on behalf of National Football League (NFL) players by their union, the NFL Players Association (NFLPA), have increased media and public attention to the challenges of labor arbitrator decisions in federal courts. The Supreme Court has established a body of federal common law that places a high premium on deferring to labor arbitrator decisions and counseling against judges deciding the merits of disputes covered by a collective bargaining agreement (CBA). A recent trend suggests federal judges have ignored this body of law and analyzed the merits of labor arbitration decisions in the NFL setting.

NFL …

Arbitration And Fine Dining: Two Faces Of Efficiency, William W. Park

Faculty Scholarship

A restaurant meal might turn into disappointment either when good food arrives late, or when prompt service delivers bad food. The chef cannot become preoccupied with any one aspect of fine dining to the exclusion of others. Likewise, arbitral proceedings implicate proportionality and balance among a multitude of factors which can make the experience good or bad. Several elements play key roles in evaluating any arbitration, namely: accuracy, fairness, cost, speed, and award enforceability. An inevitable tension exists among these goals. Decisions reached quickly and cheaply will do few favors if the award gets it wrong on the substantive merits. …

Soft Law And Transnational Standards In Arbitration: The Challenge Of Res Judicata, William W. Park

Faculty Scholarship

In international proceedings, a transnational “soft law” often finds expression in rules, guidelines and canons of professional associations which serve to supplement the “hard law” of national statutes and court decisions. Memorializing the experience of those who sit as arbitrators or serve as counsel, such standards contain a degree of circularity, in that relevant norms both derive from and apply to cross-border arbitration. Neither the nature nor the limits of “soft law” always present themselves with clarity. Often the litigants’ agreement fails to provide standards on controverted questions whose answers fall beyond common practice. In such instances, the integrity of …

Mlb Calendar 2017-2018, Edmund P. Edmonds

MLB Calendars

No abstract provided.

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.

Mlb Calendar 2016-2017, Edmund P. Edmonds

MLB Calendars

No abstract provided.

Inside The Arbitrator's Mind, Susan Franck

Articles in Law Reviews & Other Academic Journals

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 …

The Cfpb Proposed Arbitration Ban, The Rule, The Data, And Some Considerations For Change, Ramona L. Lampley

Faculty Articles

Predispute consumer arbitration has sparked energetic debate and sharply divides the utility of the class action versus the utility of individual arbitration. Thus far, the U.S. Supreme Court’s jurisprudence has given a “thumbs up” approach to predispute consumer arbitration waivers, which almost always include a class waiver agreement. Congress showed little interest in amending the Federal Arbitration Act (“FAA”), even for consumer cases. It seems that consumer arbitration was the “wild west” of the law, in that it was largely unregulated and could direct claims to the black hole of private dispute resolution. In May 2016, the Consumer Financial Protection …

Trending @ Rwu Law: Dean Yelnosky's Post: 24: Dean Style 3-6-2017, Michael Yelnosky

Law School Blogs

No abstract provided.

The Settlement Of Investment Disputes: A Discussion Of Democratic Accountability And The Public Interest, Lise Johnson, Brooke Guven

Columbia Center on Sustainable Investment Staff Publications

In this briefing note, CCSI considers the threats to principles of good governance, including government accountability, respect for the rule of law, transparency, and respect for citizens’ rights and interests under domestic law and international human rights norms, that are posed by the settlement of treaty-based investor-state disputes. The authors also consider the exacerbated threats posed by the settlement of disputes that include government counterclaims, and highlight the need for the ISDS reform agenda to include a focus on these issues.

Submission Regarding Amendments To The Icsid Arbitration Rules, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In March 2017, CCSI submitted comments to the ICSID Secretariat regarding proposed revisions to ICSID’s arbitration rules. CCSI’s submission provided illustrative suggestions for amendments regarding the following issues: recognizing and safeguarding of the rights and interests of non-parties; improving transparency of the dispute resolution process; promoting transparency of ownership over investments; preventing actual and apparent conflicts of interest; addressing concerns raised by third-party funding; ensuring legitimacy of settlement agreements; and ensuring legitimacy of the rule revision process itself.

2017 Exchanged Figures Chart, Edmund P. Edmonds

Annual Exchanged Figures Charts

No abstract provided.

Reshaping Third-Party Funding, Victoria Sahani

Scholarly Articles

Third-party funding is a controversial business arrangement whereby an outside entity—called a third-party funder—finances the legal representation of a party involved in litigation or arbitration or finances a law firm’s portfolio of cases in return for a profit. Attorney ethics regulations and other laws permit nonlawyers to become partial owners of law firms in the District of Columbia, England and Wales, Scotland, Australia, two provinces in Canada, Germany, the Netherlands, New Zealand, and other jurisdictions around the world. Recently, a U.S.-based third-party funder that is publicly traded in England started its own law firm in England. In addition, some U.S. …

Reshaping Third-Party Funding, Victoria Sahani

Faculty Scholarship

Third-party funding is a controversial business arrangement whereby an outside entity—called a third-party funder—finances the legal representation of a party involved in litigation or arbitration or finances a law firm’s portfolio of cases in return for a profit. Attorney ethics regulations and other laws permit nonlawyers to become partial owners of law firms in the District of Columbia, England and Wales, Scotland, Australia, two provinces in Canada, Germany, the Netherlands, New Zealand, and other jurisdictions around the world. Recently, a U.S.-based third-party funder that is publicly traded in England started its own law firm in England. In addition, some U.S. …

Clear Statement Rules And The Integrity Of Labor Arbitration, Stephen F. Ross, Roy Eisenhardt

Journal Articles

Under the common law, employment contracts are submitted to civil courts to resolve disputes over interpretation, breach, and remedies. As an alternative, parties in labor contexts can agree to resolution by an impartial arbitrator, whose decision is reviewed deferentially by judges. Where employees are subject to rules of a private association, they are often contractually obligated to submit their claims to an internal association officer or committee; the common law provides for judicial review more limited than a civil contract but more searching than is the case for an impartial labor arbitrator. Recently, the National Football League and its players …

How The Supreme Court's Misconstruction Of The Faa Has Affected Consumers, Margaret L. Moses

Faculty Publications & Other Works

Neither the drafters of the Federal Arbitration Act nor the Congress that adopted it intended for it to cover consumers or workers or displace state jurisdiction or state substantive law. The FAA was simply intended to provide a means for resolving disputes among commercial entities that might voluntarily choose to forego their rights to have their disputes settled in court, in favor of what they deemed to be a simpler and more efficient means of dispute resolution. That point, which is entirely beyond dispute, has been lost on the Supreme Court. In a series of cases over the past fifty …

The Uberization Of Arbitration Clauses, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

In the early part of this decade, the Supreme Court’s decisions interpreting the Federal Arbitration Act (FAA) strictly enforced predispute arbitration clauses (PDAAs) with class action waivers and so-called “delegation” provisions in consumer contracts. Just after the Court’s 2013 ruling that clauses with class action waivers did not prevent claimants from vindicating their statutory rights, Uber— a company at the heart of the “gig economy”—started inserting PDAAs in agreements with its drivers and passengers. Uber’s move has generated dozens of challenges to its clause in lawsuits across the country, and thus dozens of federal court opinions contributing to modern FAA …

Disrupting Work Law: Arbitration In The Gig Economy, Charlotte Garden

Faculty Articles

No abstract provided.

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 …

Justice Scalia And Class Actions, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

I have been asked to write an essay on Justice Scalia's class action jurisprudence and although I suspect many readers will find this surprising because the Justice is so often linked to constitutional law, I actually think that his class action jurisprudence may be where his opinions leave some of the biggest marks. To be as blunt about it as the Justice himself would have been: for better or for worse, I am not sure any other Justice of the Supreme Court in American history has done more to hinder the class action lawsuit than Justice Scalia did.

The Justice …

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

Vanderbilt Law School 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 …

When The Empty Adr Chair Is Occupied By A Litigation Funder, Elayne E. Greenberg

Faculty Publications

(Excerpt)

The discussion about the $140 million jury verdict against Gawker media for posting a sex video of Terry Bollea, professionally known as Hulk Hogan, having sex with his best friend’s wife, quickly shifted to a conversation about the ethics of litigation funding when it was finally disclosed that Peter Thiel had funded Bollea’s litigation. The backstory reveals that Gawker outed Thiel, revealing his homosexuality ten years earlier in a more conservative time when such a revelation might have impacted Thiel’s earning capacity. Thiel, an icon in Silicone Valley and a co-founder of PayPal, promised revenge. Thiel got his revenge, …

The Public Believes Predispute Binding Arbitration Clauses Are Unjust: Ethical Implications For Dispute-System Design In The Time Of Vanishing Trials, Victor D. Quintanilla, Alexander B. Avtgis

Articles by Maurer Faculty

This Article discusses a troubling cause of the decline in civil trials — the growing ubiquity of predispute binding arbitration clauses — and discusses tension between roles and responsibilities classically associated with zealous advocacy and the pressing need for new roles and responsibilities associated with ethical dispute system design.

Over the past decade, two interacting patterns have come to encourage transactional attorneys to engage in zealous advocacy when crafting predispute binding arbitration clauses in adhesion contracts. First, recent U.S. Supreme Court jurisprudence broadly defers and delegates authority to those who create such clauses in adhesion contracts with little oversight. Second, …

Issues Concerning Enforcement And Dispute Resolution, Sean Flynn

Articles in Law Reviews & Other Academic Journals

No abstract provided.

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 Law Of The Sea Convention And Sea Level Rise In The Light Of The South China Sea Arbitration, Stuart B. Kaye

Faculty of Law, Humanities and the Arts - Papers (Archive)

Sea level rise from anthropogenic climate change is an increasing concern for the international community and especially for coastal States. The prospect of whole islands disappearing under rising waters raises serious questions as to the impact upon maritime jurisdiction and the ability of the United Nations Convention on the Law of the Sea to deal with the inundation of large areas of territory. The South China Sea Arbitration Tribunal recently considered these questions. Here, the Tribunal relied on a high standard for what constituted human habitability under Article 121 of the Law of the Sea Convention, which likely will have …