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Thursday, March 30, 2017

The Centrist Case Against Current (Conservative) Arbitration Law

The Centrist Case Against Current (Conservative) Arbitration Law is my article just published in the Florida Law Review

In The Politics of Arbitration Law and Centrist Proposals for Reform, published in the Harvard Journal on Legislation, I explained how issues surrounding consumer and other adhesive arbitration agreements became divisive along predictable political lines (progressives vs. conservatives) and proposed an intermediate (or centrist) position to resolve those issues. However, The Politics of Arbitration Law did not argue the case for my proposals. It left those arguments for this Article, which makes the case against current (conservative) arbitration law, and a third article, which will make the case against progressive proposals to reform arbitration law. In other words, this Article stands out from the many other articles critiquing current arbitration law because this Article’s critique comes from a centrist, rather than progressive, perspective. For that reason, this Article’s critique may be more likely than progressive critiques to gain traction with lawmakers. 

I welcome comments directed to

Wednesday, March 1, 2017

NY Times Criticizes Confidentiality of Employment Arbitration

Today's New York Times refers to "the murky world of corporate arbitration, in which serious charges of misconduct are often settled behind closed doors." The case accuses parent of Kay Jewelers "of discriminating against women by denying them equal pay and promotional opportunities. The accusations of sexual harassment are included in statements employees made about pay and promotion disparities, and the accusers have sought to link the accusations to their wages."

University of Kansas Law Professor and arbitration expert Chris Drahozal gave me permission to add his point that "the arbitration rules in the Kay Jewelers arbitration agreement (National Arbitration and Mediation) are unusual in the U.S. In imposing a confidentiality obligation on the parties. By comparison, the AAA and JAMS rules impose a confidentiality obligation only on the arbitrator and the administrator. Under the AAA and JAMS rules, either party remains free to release any information about the arbitration (in the absence of a confidentiality order by the arbitrators) without consent of the other party."

Wednesday, February 8, 2017

Arbitration Rules Changed by International Chamber of Commerce

The Revised Rules of the International Chamber of Commerce "will apply from 1 March 2017. They provide that expedited procedure rules will automatically apply to all arbitrations with amounts in dispute below US$2 million and to cases involving higher amounts on an opt-in basis." The ICC explains "Under the Expedited Procedure Rules, the ICC Court will normally appoint a sole arbitrator, irrespective of any contrary term of the arbitration agreement. Awards must be made in six months from the case management conference, with extensions granted only in limited and justified circumstances."

Friday, January 13, 2017

Supreme Court to Decide Enforceability of Class Waivers in Labor Arbitration

Federal appeals courts have split on whether the NLRB rightly holds arbitration agreements illegal under federal labor law if they contain class action waivers.

The Supreme Court today agreed to resolve the issue.

Monday, January 2, 2017

Investment Arbitration Against Argentina

Award in bondholders' investment arbitration against Argentina. ICSID (International Centre for Settlement of Investment Disputes) is part of the World Bank

Monday, December 26, 2016

Arbitration Organizations Largely Immune From Suit

The Eighth Circuit Court of Appeals held that arbitrator immunity extends to arbitration organizations, here the American Arbitration Association, in Owens v. American Arbitration Association, Inc., 2016 WL 6818858 (8th Cir. Nov. 18, 2016).

Commentary from Liz Kramer, Seth Leventhal, and the American Bar Association Section on Litigation.

Thursday, December 8, 2016

Nursing Home Arbitration

A federal court prevented a proposed regulation basically prohibiting nursing home arbitration agreements.

Pro-plaintiff commentary on the rule from noted Alabama plaintiffs' lawyers Beasley Allen.

Monday, November 21, 2016

Supreme Court to Decide Nursing Home Arbitration Power-of-Attorney Case

The US Supreme Court agreed to hear Kindred Nursing Centers LP v. Clark, to review a Kentucky Supreme Court decision declining to give effect to an arbitration agreement signed by family members on behalf of a nursing home resident who had executed powers of attorney in favor of those family members.

Thursday, October 27, 2016

Cellphone Arbitration Clauses Under Attack

Time Magazine published on Sunday a joint op-ed in which Federal Communications Commissioner Mignon Clyburn (D) and U.S. Senator Al Franken (D-Minn.) argue that cellphone carriers and other communications businesses have used class action waivers in arbitration agreements to “evade accountability by effectively locking the courtroom doors on their customers.”  

The FCC contemplates a rulemaking in February 2017 with respect to arbitration clauses in consumer communications services contracts.  

Hat tip to Mark Kantor

Wednesday, October 26, 2016

Suit Challenging Rule Prohibiting Nursing Home Arbitration

The American Health Care Association (AHCA) sued the Department of Health and Human Services whose Centers for Medicare and Medicaid Services (CMS) issued a rule barring nursing homes from entering into pre-dispute arbitration agreements with residents.

The suit, citing the Federal Arbitration Act, asks that the court find the arbitration rule unlawful and stop enforcement of the rule after its effective date of November 28, 2016.  

Coverage of this suit by National Public Radio, and the National Law Review.

Sunday, October 2, 2016

Nursing Home Arbitration Soon to End?

A new federal rule bars any nursing home that receives federal funding from requiring that its residents resolve any disputes in arbitration, instead of court. Many nursing homes receive Medicare and Medicaid funding so the rule will affect nursing homes with 1.5 million residents, according to the NY Times.

The rule is by the Department of Health & Human Services Centers for Medicare & Medicaid Services.

While nursing home arbitration agreements tend to raise all the issues raised by other adhesive agreements--plus more due to the importance of the contract compared to, say, a cellphone's--they are nevertheless agreements.

The Times unfortunately perpetuates its distorted coverage of arbitration by implying that arbitration necessarily "stymie[s] the families of nursing home residents from getting justice." One would need to know arbitrators' rulings in particular cases, and know the facts and law of the cases, to develop an informed view of the extent to which justice was done in those cases. Same with cases ruled on by judges and juries in court.