Dispute Resolution and Arbitration Commons^™

Trouble, Trouble, Trouble: Taylor Swift, Ticketmaster, And Arbitration, Imre S. Szalai Professor Of Social Justice

Vanderbilt Journal of Entertainment & Technology Law

Through Ticketmaster’s use of arbitration and the controversy surrounding Ticketmaster’s botched sale of tickets for Taylor Swift’s The Eras Tour, this Article explores problems with the broad use of arbitration in the United States. Arbitration, a private contractual method of resolving disputes in a binding manner, is a neutral process that can provide many benefits. However, under the current broad scope of arbitration law, virtually every type of claim can be arbitrated. A more limited arbitration law could provide more robust enforcement of laws, greater accountability and transparency, and stronger development of precedent within our legal system. Stronger parties (like …

Fighting Mass Arbitration: An Empirical Study Of The Corporate Response To Mass Arbitration And Its Implications For The Federal Arbitration Act, Richard Frankel

Vanderbilt Law Review

Mass arbitration represents the newest battleground between corporations and consumer and employee advocates over mandatory arbitration and access to justice. Companies thought they had finally won the arbitration wars after the U.S. Supreme Court ruled that they could insert class action bans into their arbitration clauses, bestowing companies with widespread immunity from a large swath of consumer and employee claims.

Recently, however, consumer and employee advocates have responded to class action bans by filing thousands of individual arbitration demands, which have exposed companies to millions of dollars in filing fees and resulted in large settlements. This practice has become known …

Choosing Sides: On The Manipulation Of Civil Litigation, Yotam Kaplan, Ittai Paldor

Vanderbilt Law Review

Our litigation system is broken. Scholars have long warned that professional litigants, such as debt-collecting firms, insurance companies, and commercial landlords, enjoy immense and unfair advantages over private individuals. What has gone unnoticed is professional litigants’ ability to manipulate their litigatory position—that is, to choose whether they will litigate as plaintiffs or defendants. Extant literature assumes that the parties’ litigatory positions are determined by the substance of the dispute: the party seeking a remedy is the plaintiff, and the party objecting to the award of a remedy is the defendant. We show that, in reality, professional litigants have both the …

The Impact Of Banning Confidential Settlements On Discrimination Dispute Resolutio, Blair D. Bullock, Joni Hersch -- Cornelius Vanderbilt Professor Of Law And Economics

Vanderbilt Law Review

The #MeToo movement exposed how workplace harassment plagues employment in the United States. Several states responded by passing legislation aimed at curbing harassment and employment discrimination in the workplace. One of the most common legislative efforts was to ban confidentiality provisions in certain settlement agreements. These bans, in part, attempted to stop "secret settlements" by shining light on workplace discrimination and exposing serial harassers as a means to motivate firms to actively deter workplace discrimination.

But do bans on confidentiality agreements deter the bad act? For these laws to have a deterrent effect, claims must be revealed in a public …

The Impact Of Banning Confidential Settlements On Discrimination Dispute Resolution, Joni Hersch, Blair D. Bullock

Vanderbilt Law School Faculty Publications

The #MeToo movement exposed how workplace harassment plagues employment in the United States. Several states responded by passing legislation aimed at curbing harassment and employment discrimination in the workplace. One of the most common legislative efforts was to ban confidentiality provisions in certain settlement agreements. These bans, in part, attempted to stop “secret settlements” by shining light on workplace discrimination and exposing serial harassers as a means to motivate firms to actively deter workplace discrimination.

But do bans on confidentiality agreements deter the bad act? For these laws to have a deterrent effect, claims must be revealed in a public …

Adapting Private Law For Climate Change Adaptation, Jim Rossi, J. B. Ruhl

Vanderbilt Law Review

The private law of torts, property, and contracts will and should play an important role in resolving disputes regarding how private individuals and entities respond to and manage the harms of climate change that cannot be avoided through mitigation (known in climate change policy dialogue as “adaptation”). While adaptation is commonly presented as a problem needing legislative solutions, this Article presents a novel and overdue case for private law to take climate adaptation seriously.

To date, the role of private law is a significant blind spot in scholarly discussions of climate adaptation. Litigation invoking common-law doctrines in climate adaption disputes …

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 …

Play On? An Evaluation Of Fifa's Legal Regime And Its Foundation In Alternative Dispute Resolution, Blaine Sanders

Vanderbilt Journal of Transnational Law

Few associate the Federation Internationale de Football Association, or FIFA, with its legal regime. Rather, and understandably so, sports fans and commentators tend to focus on World Cups, corruption, or even the FIFA video game. Yet, FIFA's role in the sport of soccer extends well beyond what receives the most commercial attention. FIFA shoulders the burden of regulating soccer's member associations, national teams, clubs, players, and countless other personnel through its FIFA Statutes. This is a considerable undertaking, which FIFA achieves through its comprehensive system of alternative dispute resolution.

Soccer is now a global business, largely due to the economic …

A Litigator’S Guide To The Galaxy: A Look At The Pragmatic Questions For Adjudicating Future Outer Space Disputes, Michael J. Listner, Joshua T. Smith

Vanderbilt Journal of Entertainment & Technology Law

Since the beginnings of the space age, outer space activities have been the realm of government with ancillary involvement by non-governmental actors. The international legal framework for outer space contemplated the involvement of non-governmental actors, but in creating dispute resolution mechanisms the role of non-governmental entities was not considered ripe. The surge of direct non-governmental involvement in outer space activities in recent years again raises the issue of dispute resolution and exemplifies the lack of dispute resolution mechanisms designed to address differences between sovereign states. As the pace of non-governmental activity increases, so does the likelihood of disputes arising between …

Taming Blockbuster Punitive Damages Awards, W. Kip Viscusi, Benjamin J. Mcmichael

Vanderbilt Law School Faculty Publications

Blockbuster punitive damages awards, i.e., those awards exceeding $100 million, attract attention based on their sheer size. While there have been fewer such awards in the last decade, they remain an important presence in the legal landscape. Taking notice of these and other large punitive damages awards, courts and state policymakers have taken steps to both constrain them and render them more predictable. States have enacted punitive damages caps to limit the amount of punitive damages courts can award, but these caps often contain a number of exceptions and apply only to damages under a specific state’s law. At a …

An Empirical Study Of Dispute Resolution Clauses In International Supply Contracts, John F. Coyle, Christopher R. Drahozal

Vanderbilt Journal of Transnational Law

International transactions present unique legal risks. When a contract touches several different nations, a party may not know where it will be called upon to defend a lawsuit or, alternatively, which nation's law will be applied to resolve that dispute. To mitigate these risks, parties will often write dispute resolution provisions into their contracts. Arbitration clauses and forum selection clauses help to reduce uncertainty relating to the forum. Choice-of-law clauses help to reduce uncertainty as to the governing law. Over the past few decades, such provisions have become commonplace in international contracting. And yet there exist vanishingly few empirical studies …

When Immediate Responses Fail, Shai Dothan

Vanderbilt Journal of Transnational Law

Tit-for-tat is a strategy of immediate and proportional responses. Game theorists showed that this strategy often leads to fruitful cooperation. Indeed, many legal regimes resemble a tit-for-tat strategy and benefit from its ability to avoid unnecessary conflicts. But in situations of uncertainty--when actors cannot be sure about the actions of their adversaries--a tit-for-tat strategy would destroy cooperation and lead to continuous clashes. Because tit-for-tat responds immediately, a single mistake about the intentions of the adversary can lead to retaliation and start an endless string of counterstrikes. When uncertainty prevails, a strategy of many-tits-for-many-tats is optimal. Actors applying this strategy study …

The Right To Regulate In Investor-State Arbitration: Slicing And Dicing Regulatory Carve-Outs, Vera Korzun

Vanderbilt Journal of Transnational Law

This Article examines the "right to regulate" as the power of a sovereign state to adopt and maintain government measures for public welfare objectives. It explores how claims by foreign investors in investor-state dispute settlement (ISDS) may interfere with the state's ability to regulate, and how the state can protect its right in international investment agreements. The Article first explains the structure of modern international investment law and dispute resolution. It next turns to the right to regulate and explores why regulatory disputes represent a major challenge for ISDS. It continues by analyzing how exceptions, exclusions, and other safeguard provisions …

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 …

Appraisal: Shareholder Remedy Or Litigation Arbitrage?, Randall S. Thomas, Wei Jiang, Tao Li, Danqing Mei

Vanderbilt Law School Faculty Publications

We present the first large-sample empirical study of the recent trends in the ap- praisal remedy-the right of shareholders of companies completing an eligible merger to petition the court for an improved price for their shares. Appraisal petitions have increased markedly over our sample from 2000 to 2014, and the composition of those bringing these suits has shifted from individual sharehold- ers toward specialized hedge funds. Appraisal petitions are more likely to be filed against mergers with perceived conflicts of interest, including going-private deals, minority squeeze outs, and acquisitions with low premiums, which makes them a potentially important governance mechanism. …

Pricing Lives For Corporate Risk Decisions, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The 2014 GM ignition-switch recall highlighted the inadequacies of the company's safety culture and the shortcomings of regulatory sanctions. The company's inattention to systematic thinking about product safety can be traced to the hostile treatment of corporate risk analyses by the courts. This Article proposes that companies should place a greater value on lives at risk than they have in previous risk analyses and that they should receive legal protections for product risk analyses. Companies' valuations of fatality risks and regulatory penalties have priced lives too low. The guidance provided by the value of a statistical life, which is currently …

The Future Of Sharia Law In American Arbitration, Erin Sisson

Vanderbilt Journal of Transnational Law

A rising tide of Islamophobia in the United States has led, in recent years, to state-level efforts to prohibit the application of Sharia law in American courts. While these bans have been largely unsuccessful as legislation--the U.S. Tenth Circuit Court of Appeals has even declared one such ban unconstitutional--the growing uneasiness among Americans regarding the application of Sharia law persists. Similar tensions have been addressed in Canada and the United Kingdom through reform of the application of Sharia law in alternative dispute resolution (ADR) mechanisms. By taking a critical look at the American ADR system through the lens of Canadian …

Sticky Arbitration Clauses - The Use Of Arbitration Clauses After Concepcion And Amex, Peter B. Rutledge, Christopher R. Drahozal

Vanderbilt Law Review

We present the results of the first empirical study of the extent to which businesses have switched to arbitration after AT&T Mobility LLC v. Concepcion. The Supreme Court's decision in Concepcion led commentators to predict that every business soon would use an arbitration clause, coupled with a class arbitration waiver, in their standard form contracts to avoid the risk of class actions. We examine two samples of franchise agreements: one sample in which we track changes in arbitration clauses since 1999, and a broader sample focusing on changes since 2011, immediately before Concepcion was decided. Our central finding is consistent …

Constraining Targeting In Noninternational Armed Conflicts, Peter Margulies

Vanderbilt Journal of Transnational Law

An American drone pilot thousands of miles away from Afghanistan sees a tempting target on his computer screen. Thanks to the Predator drone's video capabilities,' the pilot is treated to the spectacle of a known Taliban commander and over a dozen other armed men greeting a dozen tribesmen, who are also armed to the teeth. Everyone depicted on-screen has a gun. The pilot fires the Predator's missile. Shortly thereafter, he confirms the deaths of thirty Taliban fighters and associated forces.

While the facts above, particularly the presence of the known Taliban commander, tend to show that the strike was consistent …

Restituting Nazi-Looted Art: Domestic, Legislative, And Binding Intervention To Balance The Interests Of Victims And Museums, Katharine N. Skinner

Vanderbilt Journal of Entertainment & Technology Law

The Nazis engaged in widespread art looting from Holocaust victims, either taking the artwork outright or using legal formalities to effect a transfer of title under duress. Years later, US museums acquired some of these pieces on a good-faith basis. Now, however, they face lawsuits by the heirs of Holocaust victims, who seek to have the museums return the artwork. Though good title cannot pass to the owner of stolen property under US law, unfavorable statutes of limitations, high financial hurdles, or discovery problems, among other obstacles, bar many of these claimants from seeking recovery. Though some museums have amicably …

Implementing An Online Dispute Resolution Scheme: Using Domain Name Registration Contracts To Create A Workable Framework, Michael G. Bowers

Vanderbilt Law Review

Online businesses have grown tremendously in the past decade. As a larger percentage of the U.S. economy moves onto the Internet, a larger percentage of people doing business online will find themselves disagreeing with each other. How those disputes are resolved presents an ongoing challenge in a world where traditional ordering mechanisms, like geographical boundaries, become increasingly antiquated. As contracts are formed across state and national lines, dispute resolution systems built around spatial locations become ever more unwieldy. The complications and costs of securing a favorable decision from a far-off decisionmaking body make reliance on geographic-based systems exceedingly difficult. Out …

Arbitration Clauses In Ceo Employment Contracts: An Empirical And Theoretical Analysis, Randall Thomas, Kenneth J. Martin, Erin O'Connor

Vanderbilt Law School Faculty Publications

A bill currently pending in Congress would render unenforceable mandatory arbitration clauses in all employment contracts. Some perceive these provisions as employer efforts to deprive employees of important legal rights. Company CEOs are firm employees, and, unlike most other firm employees, they can actually negotiate their employment contracts, very often with attorney assistance. Moreover, many CEO employment contracts are publicly available, so they can be examined empirically. In this paper, we ask whether CEOs bargain to include binding arbitration provisions in their employment contracts. After exploring the theoretical arguments for and against including such provisions in these agreements, we use …

Order At The End Of Life: Establishing A Clear And Fair Mechanism For The Resolution Of Futility Disputes, Ashley Bassel

Vanderbilt Law Review

On January 22, 2008, Ruben Betancourt was admitted to Trinitas Regional Medical Center in New Jersey for surgery for malignant thymoma, a cancer of the thymus gland (a small organ underneath the breastbone).' Following surgery, the patient developed brain damage due to lack of oxygen and, as a result, lapsed into unconsciousness. For the next five months, Mr. Betancourt was admitted to various medical facilities and readmitted finally to Trinitas in July 2008 for renal failure. For six more months, the unconscious patient remained in the hospital on an artificial ventilator, receiving renal dialysis and nutrition through tube feeding.

The …

The Circle Of Assent: How "Agreement" Can Save Mandatory Arbitration In Long-Term Care Contracts, Lauren Gaffney

Vanderbilt Law Review

On September 28, 1997, a resident at the Comanche Trail Nursing Center physically attacked his eighty-one-year-old roommate, Tranquilino Mendoza. As a result of the attack, Mr. Mendoza suffered a concussion and brain damage. His daughter claimed that her father was never the same after the attack and filed a lawsuit against the long-term care facility alleging negligence. In 2006, a jury awarded Mr. Mendoza $160 million.

Similarly, on April 26, 2003, a resident of the Heritage House Nursing and Rehabilitation Center allegedly attacked Carolyn Mason, another resident at the same facility. Mrs. Mason suffered a broken hip.6 Like Mr. Mendoza, …

A Theory Of Wto Adjudication: From Empirical Analysis To Biased Rule Development, Juscelino F. Colares

Vanderbilt Journal of Transnational Law

The positive theory of litigation predicts that, under certain conditions, plaintiffs and defendants achieve an unremarkable and roughly equivalent share of litigation success. This Article, grounded in an empirical analysis of WTO adjudication from 1995 through 2007, reveals a high disparity between Complainant and Respondent success rates: Complainants win roughly ninety percent of the disputes. This disparity transcends Case Type, Party Identity, Income Level, and other litigant-specific characteristics. After analyzing and discarding standard empirical and theoretical alternative explanations for the systematic disparity in success rates, this study demonstrates, through an examination of patterns in WTO adjudicators' notorious decisions, that biased …

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 …

Blinking On The Bench: How Judges Decide Cases, Chris Guthrie, Jeffrey J. Rachlinski

Vanderbilt Law School Faculty Publications

How do judges judge? Do they apply law to facts in a mechanical and deliberative way, as the formalists suggest they do, or do they rely on hunches and gut feelings, as the realists maintain? Debate has raged for decades, but researchers have offered little hard evidence in support of either model. Relying on empirical studies of judicial reasoning and decision making, we propose an entirely new model of judging that provides a more accurate explanation of judicial behavior. Our model accounts for the tendency of the human brain to make automatic, snap judgments, which are surprisingly accurate, but which …

Misjudging, Chris Guthrie

Vanderbilt Law School Faculty Publications

Judging is difficult. This is obviously so in cases where the law is unclear or the facts are uncertain. But even in those cases where the law is as clear as it can be, and where the relevant facts have been fully developed, judges might still have difficulty getting it right. Why do judges misjudge? Judges, I will argue, possess three sets of "blinders": informational blinders, cognitive blinders, and attitudinal blinders. These blinders make adjudication on the merits - by which I mean the accurate application of governing law to the facts of the case - difficult. This difficulty, in …

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 …