Dispute Resolution and Arbitration Commons^™

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Collective Preclusion And Inaccessible Arbitration: Data, Non-Disclosure, And Public Knowledge, Judith Resnik, Stephanie Garlock, Annie J. Wang

Lewis & Clark Law Review

When courts enforce mandates to arbitrate, jurists describe themselves as respecting the individuals’ autonomy to enter into contracts that route claimants to a process that is more user-friendly than adjudication. But those rationales are disjunctive with the practices of providers of goods and services and of employers. These companies neither offer individuals choices about dispute resolution mechanisms nor welcome the exchange of information about experiences with arbitration. Instead, companies impose obligations to arbitrate and set the terms. In addition to the increasingly commonplace bans on joint and collective actions in any forum, many providers and employers also seek to mandate …

So You Are Saying That There’S A Chance: Strategies For Challenging Compelled Arbitration, Elizabeth Graves

Lewis & Clark Law Review

Significant scholarship has been dedicated to recent jurisprudence on arbitration clauses and class action waivers in modern contracts. Given the difficult landscape of legislation and court decisions favoring arbitration, the availability of the class action model as a vehicle for relief has dwindled. Although the prospects for litigants who wish to bring class claims in courts may be daunting, this Note has discovered some strategies that still may prove useful for future litigation.

I reviewed putative class action cases in which a party moved to compel arbitration between January 1, 2017 and April 1, 2019 to identify recent, effective tactics …

New Prime Inc. V. Oliveira: Putting The Wheels Back On The Faa’S Section 1 Exemption For Transportation Workers, Reed C. Trechter

Oklahoma Law Review

No abstract provided.

Dispute Resolution In Pandemic Circumstances, George A. Bermann

Faculty Scholarship

The peaceful resolution of disputes is among the most important earmarks of a regime attached to the rule of law. Even in countries in which, for one reason or another, courts do not work especially well, civil peace is of paramount importance. The absence of effective institutions for the administration of justice between and among private parties would spell a high degree of social disorder.

Even in the absence of a crisis such as we are experiencing, justice systems face a number of challenges in this day and age. Does a jurisdiction have a sufficient number of persons qualified to …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Due Process Supreme Court Appellate Division Third Department

Touro Law Review

No abstract provided.

Due Process Supreme Court Appellate Division Second Department

Touro Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Mediation: An Unlikely Villain, Thomas O. Main

Scholarly Works

Professor Main argues that the modem ADR movement (and mediation in particular), rather than some (other) ideology, beget the pleading and summary judgment standards that exemplify contemporary practice and procedure in the fourth era in the history of American civil procedure. The other key reforms of the fourth era-the vanishing trial, the embrace of ADR, judicial case management and the pursuit of settlement by any means necessary-are more obviously tied to the modem ADR movement. Blame for all of the key fourth era reforms is thus traceable to the modern ADR movement. This, in turn, matters because it is generally …

The Virtues Of Complexity: Judge Marrero's Systemic Account Of Litigation Abuse, Charles M. Yablon

Cardozo Law Review

No abstract provided.

... Because "Yes" Actually Means "No": A Personalized Prescriptive To Reactualize Informed Consent In Dispute Resolution

Marquette Law Review

None.

When Courts Run Amuck: A Book Review Of Unequal: How America's Courts Undermine Discrimination Law By Sandra F. Sperino And Suja A. Thomas (Oxford 2017), Theresa M. Beiner

Texas A&M Law Review

In Unequal: How America’s Courts Undermine Discrimination Law (“Unequal”), law professors Sandra F. Sperino and Suja A. Thomas provide a point-by-point analysis of how the federal courts’ interpretations of federal anti-discrimination laws have undermined their efficacy to provide relief to workers whose employers have allegedly engaged in discrimination. The cases’ results are consistently pro-employer, even while the Supreme Court of the United States—a court not known for being particularly pro-plaintiff—has occasionally ruled in favor of plaintiff employees. The authors suggest some reasons for this apparent anti-plaintiff bias among the federal courts, although they do not settle on a particular reason …

Class Dismissed: Compelling A Look At Jurisprudence Surrounding Class Arbitration And Proposing Solutions To Asymmetric Bargaining Power Between Parties, Matthew R. Hamielec

Chicago-Kent Law Review

Class actions and arbitrations have existed since the United States’ inception. Since the mid-twentieth century, both Congress and the U.S. Supreme Court have helped arbitration blossom from litigation’s overshadowed alternative to a prominent means of resolving disputes. Soon, the commercial industry proceeded to incorporate arbitration provisions in their consumer and employment contracts. That way, when a dispute arose between the business and a person, the business would arbitrate with claimants individually. Plaintiffs’ attorneys who favored collective action proceedings like class actions, however, pushed for courts’ allowance of class arbitration—a class proceeding conducted within an arbitration’s confines.

Corporations litigated such class …

Facilitators’ Report: A Restorative Review Of The In-Custody Death Of Jason Leblanc, Jennifer Llewellyn, Jacob Mcissac, Heather Mcneil

Reports & Public Policy Documents

This report has been prepared by the process facilitation team made up of: Jennifer Llewellyn, Jake MacIsaac, Heather McNeil. The central parties to the process have reviewed the report for accuracy. The parties committed at the outset of the process to share the facts of what happened in this case and the justice process they undertook together to learn from what happened and to ensure that these lessons contribute to improving the lives of individuals and families in Nova Scotia. As such, this report does not make findings of fact or recommendations. It describes the situation, the parties involved, the …

Defining The Limits To Abuse Of Process: Lim Geok Lin Andy V Yap Jin Meng Bryan, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

The abuse of process jurisdiction, which forms part of the doctrine of res judicata, is meant to uphold finality of litigation and prevent abusive litigation. While the jurisdiction has been applied to the original parties of earlier court proceedings, it could also prevent a person who was not part of earlier court proceedings from litigating his claim. In such circumstances, the abuse of process doctrine has to be cognisant of the commercial realities and motivations driving choices to advance separate rather than consolidated proceedings, while also protecting litigants from repeated litigation. A recent Singapore Court of Appeal decision imposed constraints …

Court-Connected Alternative Dispute Resolution In Maine, Howard H. Dana Jr.

Maine Law Review

With these words of prophecy the Commission to Study the Future of Maine's Courts launched its discussion of alternative dispute resolution (ADR). Although conceding that “the adversary process ... has served the people of the state well” and acknowledging that “the state must continue to provide a forum for forceful advocacy that produces a definite and binding judicial decision” the Commission asked the Maine judicial and legislative branches to embrace ADR. For the last dozen years, the Author has been the Supreme Judicial Court's (SJC's) liaison to its ADR Planning and Implementation Committee and Chair of the Court's Advisory Committee …

Commercial Arbitration: Germany And The United States, Jill I. Gross, Christian Duve

Elisabeth Haub School of Law Faculty Publications

Arbitration has deep roots in the legal cultures of the United States and Germany--and is still an important option for resolving disputes in both countries today. As far back as Colonial times, US merchants used arbitration to settle industry disputes, and in the early 19th century, American stockbrokers resolved intra-industry disputes through arbitration at the New York Stock Exchange. In Germany, a country with a civil law rather than a common law tradition, commercial arbitration has been practiced for centuries: the first draft of the German Code of Civil Procedure from 1877 included a section establishing the legal foundations of …

Restoring Bankruptcy’S Fresh Start, Jonathan S. Hermann

Fordham Law Review

The discharge injunction, which allows former debtors to be free from any efforts to collect former debt, is a primary feature of bankruptcy law in the United States. When creditors have systemically violated debtors’ discharge injunctions, some debtors have attempted to challenge those creditors through a class action lawsuit in bankruptcy court. However, the pervasiveness of class-waiving arbitration clauses likely prevents those debtors from disputing discharge injunction violations outside of binding, individual arbitration. This Note first discusses areas of disagreement regarding how former debtors may enforce their discharge injunctions. Then, it examines the types of disputes that allow debtors to …

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 …

The Virtue Of Process: Finding The Legitimacy Of Judicial Fact-Finding In Personal Injury Litigation, Nayha Acharya

PhD Dissertations

This thesis is an inquiry into the legitimacy of judicial fact-finding in civil litigation. Judges make authoritative factual findings in conditions of uncertainty and the decision-making process cannot, and does not, guarantee the accuracy of those outcomes. Given the inevitable risk of error, on what basis is the authority of judicial fact-finding legitimate? This project provides a framework of procedural legitimacy that bridges two unavoidable aspects of adjudication: factual indeterminacy and the need for justifiably authoritative dispute resolution. This work draws of the legal theories of Lon Fuller and Jurgen Habermas to substantiate the notion of procedural legitimacy in the …

The Bellwether Settlement, Adam S. Zimmerman

Fordham Law Review

This Article examines the use of bellwether mediation in mass litigation. Bellwether mediations are different from bellwether trials,” a practice where parties choose a representative sample of cases for trial to determine how to resolve a much larger number of similar cases. In bellwether mediations, the parties instead rely on a representative sample of settlement outcomes overseen by judges and court-appointed mediators.

Restraining Lawyers: From “Cases” To “Tasks”, Morris A. Ratner

Fordham Law Review

These regulatory and market mechanisms for restraining lawyers share a common thread but differ in their purposes, efficacy, and fairness. Despite these differences, the growing intensity of their focus, and their possible amplification of each other, suggest the possibility of the emergence of new professional norms that call on litigators to think more deeply and inclusively about value from the perspective of court and client when making litigation choices.

Closure Provisions In Mdl Settlements, D. Theodore Rave

Fordham Law Review

Closure has value in mass litigation. Defendants often insist on it as a condition of settlement, and plaintiffs who can deliver it may be able to command a premium. But in multidistrict litigation (MDL), which currently makes up over one-third of the federal docket, closure depends on individual claimants deciding to participate in a global settlement. Accordingly, MDL settlement designers often include terms designed to encourage claimants to opt in to the settlement and discourage them from continuing to litigate. Some of these terms have been criticized as unduly coercive and as benefiting the negotiating parties—the defendant and the lead …

Restraining Lawyers: From “Cases” To “Tasks”, Morris A. Ratner

Fordham Law Review

These regulatory and market mechanisms for restraining lawyers share a common thread but differ in their purposes, efficacy, and fairness. Despite these differences, the growing intensity of their focus, and their possible amplification of each other, suggest the possibility of the emergence of new professional norms that call on litigators to think more deeply and inclusively about value from the perspective of court and client when making litigation choices.

Closure Provisions In Mdl Settlements, D. Theodore Rave

Fordham Law Review

Closure has value in mass litigation. Defendants often insist on it as a condition of settlement, and plaintiffs who can deliver it may be able to command a premium. But in multidistrict litigation (MDL), which currently makes up over one-third of the federal docket, closure depends on individual claimants deciding to participate in a global settlement. Accordingly, MDL settlement designers often include terms designed to encourage claimants to opt in to the settlement and discourage them from continuing to litigate. Some of these terms have been criticized as unduly coercive and as benefiting the negotiating parties—the defendant and the lead …

The Bellwether Settlement, Adam S. Zimmerman

Fordham Law Review

This Article examines the use of bellwether mediation in mass litigation. Bellwether mediations are different from bellwether trials,” a practice where parties choose a representative sample of cases for trial to determine how to resolve a much larger number of similar cases. In bellwether mediations, the parties instead rely on a representative sample of settlement outcomes overseen by judges and court-appointed mediators.

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 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, …

Class Action-Barring Mandatory Pre-Dispute Consumer Arbitration Clauses: An Example Of (And Opportunity For) Dispute System Design?, Nancy A. Welsh

Faculty Scholarship

Ultimately, this essay will conclude that a private, ad hoc dispute system design process did lead to the insertion of class action waivers in mandatory pre-dispute consumer arbitration clauses. In-house and outside counsel certainly played key roles in initiating this process, but it is unclear that any individual lawyers could claim credit or responsibility as "designers." The representatives of dispute resolution organizations, meanwhile, played supporting roles-as providers of information and as amici in Supreme Court litigation. The essay will consider whether dispute resolution professionals could have managed their role in the process differently-and if so, why they would have managed …