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Full-Text Articles in Dispute Resolution and Arbitration
Notes From A Quiet Corner: User Concerns About Reinsurance Arbitration – And Attendant Lessons For Selection Of Dispute Resolution Forums And Methods, Jeffrey W. Stempel
Notes From A Quiet Corner: User Concerns About Reinsurance Arbitration – And Attendant Lessons For Selection Of Dispute Resolution Forums And Methods, Jeffrey W. Stempel
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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 …
Disarming Employees: How American Employers Are Using Mandatory Arbitration To Deprive Workers Of Legal Protection, Jean R. Sternlight
Disarming Employees: How American Employers Are Using Mandatory Arbitration To Deprive Workers Of Legal Protection, Jean R. Sternlight
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Employers’ imposition of mandatory arbitration constricts employees’ access to justice. The twenty percent of the American workforce covered by mandatory arbitration clauses file just 2,000 arbitration claims annually, a minuscule number even compared to the small number of employees who litigate claims individually or as part of a class action. Exploring how mandatory arbitration prevents employees from enforcing their rights the Article shows employees covered by mandatory arbitration clauses (1) win far less frequently and far less money than employees who litigate; (2) have a harder time obtaining legal representation; (3) are often precluded from participating in class, collective or …
Keeping Arbitrations From Becoming Kangaroo Courts, Jeffrey W. Stempel
Keeping Arbitrations From Becoming Kangaroo Courts, Jeffrey W. Stempel
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Arbitration has grown rapidly during the past 20 years. Particularly notable and problematic is the rapid onset of new or mass arbitration that has resulted from the judiciary's modern favorable attitude toward enforcement of arbitration clauses, even those imposed upon consumers, employees, small vendors, and debtors as part of a standardized contract of adhesion. In a separate article (See "Mandating Minimum Quality in Mass Arbitration," 76 U. Cin. L. Rev. (forthcoming 2007)), I present a more comprehensive list of what I regard as the necessary steps that must be taken to insure minimally acceptable quality and fairness in mass arbitration. …
Is The U.S. Out On A Limb? Comparing The U.S. Approach To Mandatory Consumer And Employment Arbitration To That Of The Rest Of The World, Jean R. Sternlight
Is The U.S. Out On A Limb? Comparing The U.S. Approach To Mandatory Consumer And Employment Arbitration To That Of The Rest Of The World, Jean R. Sternlight
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After quickly summarizing the landscape of mandatory arbitration both within and without the United States, this article will consider why mandatory arbitration is treated so disparately, whether it is problematic that approaches to mandatory arbitration are so varied among countries, and what the differing jurisdictions can and should learn from one another. The article concludes that the United States Congress should be very concerned with the fact that we are treating mandatory arbitration more permissively than other countries. I, along with many others, have previously presented many arguments for why mandatory arbitration is problematic. Our outlier status on this issue …
Mandatory Binding Arbitration And The Demise Of The Seventh Amendment Right To A Jury Trial, Jean R. Sternlight
Mandatory Binding Arbitration And The Demise Of The Seventh Amendment Right To A Jury Trial, Jean R. Sternlight
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How can the body of law which protects the federal constitutional jury trial right be reconciled with a body of arbitration law which often states such propositions as (1) arbitration is favored; (2) arbitration clauses may be upheld absent a showing of voluntary, knowing, or intentional consent; (3) the party opposing arbitration bears the burden of proof; (4) arbitration can sometimes be imposed using unsigned envelope "stuffers," handbooks, and warranties; and (5) ambiguous contracts should be construed broadly to support arbitration? To be valid, in most courts the waiver and whether it was actually state arbitration clauses need not be …
Reconsidering The Employment Contract Exclusion In Section 1 Of The Federal Arbitration Act: Correcting The Judiciary's Failure Of Statutory Vision, Jeffrey W. Stempel
Reconsidering The Employment Contract Exclusion In Section 1 Of The Federal Arbitration Act: Correcting The Judiciary's Failure Of Statutory Vision, Jeffrey W. Stempel
Scholarly Works
The Federal Arbitration Act (the Act), seeks to eliminate centuries of perceived judicial hostility toward arbitration agreements. The Act made written arbitration agreements involving interstate commerce specifically enforceable. It also provided a procedural structure for enforcing awards, which were protected through deferential judicial review. The Act intended to have a wide reach, employing a broad definition of commerce that has presumably grown in breadth along with the expansion of judicial notions of commerce. Although courts applied the Act in tentative and cautious fashion until the 1960's, arbitration gained momentum during the 1970's and the 1980's. Despite growing judicial enthusiasm for …