Dispute Resolution and Arbitration Commons^™

Teaching An Old Dog Old Tricks: Coppage V. Kansas And At-Will Employment Revisited, Kenneth M. Casebeer

Cardozo Law Review

No abstract provided.

Patent Arbitration: Past, Present And Future, Thomas G. Field Jr

Law Faculty Scholarship

Most attorneys have heard of arbitration, but few have more than a vague idea of what it is or have any experience with it. Patent attorneys are no exception, and many are no doubt wondering about the implications of §294. It was enacted in August of 1982, and went into effect in February 1983: Why was it needed and passed, and what does it mean?

Unfair Dismissal: Emerging Issues In The Use Of Arbitration As A Dispute Resolution Alternative For The Nonunion Workforce, Eva Robins, Eva Robins, Eva Robins, Eva Robins

Fordham Urban Law Journal

This Article reviews the concept of just cause as a test for termination of employment and its applicability to the nonunion workforce. It addresses the feasibility of applying dispute resolution mechanisms found workable in labor-management relations under union contracts to employment-at-will disputes. It further outlines the standards and criteria utilized in the arbitration process and recognizes some problems of proof, evidence, remedy and procedure that will arise from the application of alternative methods of resolution to nonunion disputes. Finally, this Article identifies a substantial number of issues that need to be resolved if arbitration of just cause for termination of …

Dispute Resolution In Commodities Futures, Dorothy Matthews Freeburg

Fordham Urban Law Journal

The commodities futures industry is experiencing rapid growth and a consequential rise in disputes between industry professionals and customers. In response to the growing number of disputes, the industry offers customers several methods for resolution, including the recently added National Futures Association (NFA). The NFA fills a gap in previously available forums, as it offers a much needed uniform and nationwide system of arbitration with jurisdiction over multi-exchange disputes. This Note suggests that requiring the exchanges to refer disputes to NFA and to include NFA as the forum for arbitration in pre-dispute arbitration agreements would greatly enhance the effectiveness of …

Federal Preemption Of Arbitration - Southland Corp. V. Keating, Ronald A. Conway

Journal of Dispute Resolution

Arbitration agreements have traditionally been viewed with disfavor.2 Many states have refused to enforce arbitration clauses to the same extent as other agreements, either under the common law or by statute.8 This hostility towards arbitration agreements was the result of an attempt to preserve the courts' jurisdiction. Any agreement which deprived courts of jurisdiction was frowned upon.' The United States Supreme Court recently held that the Federal Arbitration Act5 (FAA) preempts state law and must be applied in state courts. This decision is in accord with a trend throughout the nation to make arbitration agreements specifically enforceable.6 The effect of …

Arbitral Decisions: A Social Science Analog, John E. Drotning, Bruce Fortado

Journal of Dispute Resolution

This paper develops the idea that arbitral decision making has an analog in social science research.1 It asserts that the hypothesis testing procedure in social sciences is directly analogous to the arbitral process. The research format of an economist, sociologist, or psychologist might be as follows: 1. Generate the null (H.) and alternate (H) hypotheses to be tested. 2. Collect reliable and valid data relative to the hypothesis. 3. Evaluate and analyze this data by subjecting it to statistical tests. 4. Arrive at conclusions by accepting or rejecting the null hypothesis after statistical testing. 5. Explain and discuss findings

Recent Developments: The Uniform Arbitration Act

Journal of Dispute Resolution

The Uniform Arbitration Act (UAA), 1 proposed by the National Conference on Uniform State Laws in 1955, has been adopted by slightly more than half the states.' The purpose of this survey is to explain the principles underlying court decisions interpreting the UAA, and provide a framework for analyzing future cases.

Arbitration Of International Contract Disputes, William W. Park

Faculty Scholarship

International commercial arbitration has been the victim of its own success. Arbitration is often the only dispute resolution process acceptable in business contexts where parties from different countries have rejected recourse to each other's legal system at the outset of the contractual relationship. For example, when a Swedish shipyard contracts to build tankers for an agency of the Libyan government, the Swedes are unlikely to relish the prospect of appearing before Libyan courts, and the Libyans may view submission to the courts of Sweden (or of another industrialized Western nation) as an affront to Libyan national sovereignty. Neither the Swedish …

Due Process, Retroactivity, And The Multiemployer Pension Plan Amendments Act Of 1980: Congress' Arbitrary Means To A Legitimate End, Eric G. Menkes

Cardozo Law Review

No abstract provided.

Southland Corp. V. Keating, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Reforming At-Will Employment Law: A Model Statute, Liana Gioia, Per Ramford

University of Michigan Journal of Law Reform

Effective relief for at-will employees can only be achieved through statutory reform. Although specific legislation has been proposed on the federal 4 and state levels, 5 none of these bills have been sufficiently comprehensive to provide optimal relief. Moreover, those commentators who have called for a statutory remedy have failed to explain precisely what the mechanism for dispute resolution should be, or how it should operate. 6 This Note, therefore, proposes a model statute utilizing mediation-arbitration to provide consistent, informal, and economical protection for at-will employees. Part I explores the development of the at-will rule and the deficiencies of current …

Court-Annexed Arbitration, A. Leo Levin

University of Michigan Journal of Law Reform

Court-annexed arbitration is utilized more extensively today than ever before. It commands widespread and increasing interest, not only because it serves the litigants well, but also because it offers to beleaguered courts a measure of relief from seriously overburdened dockets. This Article examines the use of court-annexed arbitration as an alternative method of dispute resolution. Part I describes how court-annexed arbitration works and the goals it is designed to achieve. Part II focuses on what the actual experience with court-annexed arbitration has been. Utilizing data from a recent empirical study on court-annexed arbitration by the Federal Judicial Center, this section …

Exploring Voluntary Arbitration Of Individual Employment Disputes, Alfred W. Blumrosen

University of Michigan Journal of Law Reform

This Article outlines an arbitration process which may be employed in individual employment contracts to achieve a fair disposition of disputes, with the maximum finality for an arbitration decision which is consistent with legal principles. Where finality is not possible, arbitration would be a condition precedent to formal legal processes. To assure fairness in the process, the employer would agree to pay the arbitrator's fee and the employee's attorney fees incurred in connection with the arbitration.

Party-Designated Arbitrators And The Duty To Disclose In Tripartite Commercial Arbitration: Barcon Associates, Inc. V. Tri-County Asphalt Corp., Bruce H. Kaye

Cardozo Law Review

No abstract provided.

Interlocutory Appeal Of Orders Granting Or Denying Stays Of Arbitration, Michigan Law Review

Michigan Law Review

This Note attempts to resolve the conflict among the courts of appeals by examining the interests affected by orders granting and denying stays of arbitration. Part I considers the appealability of such orders under the collateral order doctrine developed by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp. This doctrine permits interlocutory appeal of final orders adjudicating an important right that is collateral to the merits of the case and effectively unreviewable in a final judgment appeal. Part II considers whether orders on motions for stays of arbitration are reviewable as orders granting or refusing injunctions under …

New Trends In The Practical Application Of Icc Rules Of Arbitration, Yves Derains

Northwestern Journal of International Law & Business

During the 1970s, arbitration has become the normal way of settling disputes arising in international trade. The statistics provided by the International Chamber of Commerce (ICC) Court of Arbitration (the Court, or the Court of Arbitration) are evidence of the incidence of the increasing recourse to arbitration by businesses involved in international transactions; of an increase in the amounts in dispute; of an increasing diversity in the nationalities of clients3 as well as in the types of the disputes submitted to arbitration.4 The development of international arbitration in the last decade may be explained by the fact that no other …

The Reform Of The French Procedural Law On Arbitration: An Analytical Commentary On The Decree Of May 14, 1980, Thomas E. Carbonneau

Faculty Scholarship

Prior to May 1980, the French domestic law on arbitration had not been subject to any substantial legislative reform since the early nineteenth century. The procedural part of that law, which contained practically all of the French legislative provisions applying to arbitration, was out of date and in need of reconsideration.

Despite the considerable French procedural law reforms enacted in 1975, articles 1005 through 1028 of the Nouveau Code de procédure civile had not been revised to any significant extent since the enactment of the Code de procédure civile in 1806.

The basic intention of the new legislative text is …

Enforceability Of Agreements To Arbitrate: An Examination Of The Public Policy Defense, Stewart E. Sterk

Cardozo Law Review

No abstract provided.

Compelling Arbitration And The Judicial Review Of Arbitral Awards, Alan C. Swan

University of Miami Inter-American Law Review

No abstract provided.

The Integrity Of The Arbitral Process, Roger I. Abrams

Michigan Law Review

Over twenty years ago Dean Shulman and Professor Cox debated through the pages of the Harvard Law Review the question of the role law should play in labor arbitration. Shulman urged "that the law stay out," while Cox argued that courts would come to understand the special nature of the arbitration process and would accordingly limit the extent of judicial intervention. The impact of their discussion has, of course, been mooted by the numerous judicial decisions implanting private arbitration within the federal law of the collective agreement. From the Supreme Court has come a formidable legal superstructure for the labor …

Judicial Review Of Labor Arbitration Awards: A Second Look At Enterprise Wheel And Its Progeny, Theodore J. St. Antoine

Articles

Logic, so the cliche goes, is not the life of the law. But logic is very much like the DNA of the law-the structural principle without which all is sprawl and muddle. In the last ten years a controversy has raged over the role of the labor arbitrator in issuing awards, and the role of the courts in reviewing and enforcing those awards. This controversy has largely taken the form of a continuing debate among scholars and practicing arbitrators at the annual meetings of the National Academy of Arbitrators. With due respect to the thoughtful and experienced persons who have …

Arbitration Of Medical Malpractice Claims: Is It Cost Effective?, Duane H. Heintz

Maryland Law Review

No abstract provided.

Post-V Aca Standards Of The Union's Duty Of Fair Representation: Consolidating Bargaining Units, David Mathews

Villanova Law Review (1956 - )

No abstract provided.

Labor Law - Arbitration - Presumption Of Arbitrability Applicable To Safety Disputes - Injunction Authorized As Remedy For Breach Of Implied No-Strike Obligation - Objective Evidence Standard Established For Section 502 Of Taft-Hartley Act, Anthony Allen Geyelin

Villanova Law Review (1956 - )

No abstract provided.

Comment: Arbitration -- A Viable Alternative?, K. E.C. Hull, Einar M. Rod

Fordham Urban Law Journal

Private arbitration as an alternative to litigation has been viewed by many authorities as an important method of improving judicial administration. This Comment, in evaluating courts' attitudes toward arbitration, will analyze the standards used by courts in deciding whether issues are appropriate subjects for arbitration. Because arbitration can have no legal effect unless courts are willing to support the arbitrator's award, the standards used to determine whether an issue is arbitrable are critical to the future of arbitration. The Comment examines four areas law that illustrate a variety of judicial attitudes toward arbitrability: labor-management relations, domestic relations, will probation and …

Scherk V. Alberto-Culver Co., Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

"Interest" Arbitration Revisited, Robben W. Fleming

University of Michigan Journal of Law Reform

The essence of what is said in this speech is that it is time to rethink our position on "interest" arbitration. The labor relations process is a dynamic one in which neither the problems nor the remedies can remain static

Labor Law - Employee-Oriented Collective Bargaining Agreement In Insufficient Reason To Deny The Issuance Of A Boys Markets Injunction, J. Michael Fieglein

Villanova Law Review (1956 - )

No abstract provided.

Labor Law - Successorship - Post-Transfer Viability Of The Bargaining Unit Forms A Sufficient Basis To Impose A Duty To Bargain Upon An Acquiring Employer Even Where The Absence Of Any Connection Between The Predecessor And Successor Precludes More Extensive Liability, Philip M. Cullen Iii

Villanova Law Review (1956 - )

No abstract provided.

Arbitration, Statute Of Limitations, And Uninsured Motorist Endorsements, Leona M. Hudak

Cleveland State Law Review

Except in California, uninsured motorist statutes do not provide for any specified period within which the injured must file his damages. The uninsured motorist coverage clauses in policies have likewise been silent on the subject .A controversy has arisen as to whether the (usually) shorter negligence (tort) statute of limitations or the longer contract time limit governs. The controversy can be readily resolved: either the insurers express a specific time period in their uninsured motorist endorsements within which their injured insureds must file their complaints; or state legislatures should amend their uninsured motorist coverage statutes to contain such express provision, …