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Saturday, November 30, 2013

Domain-Name Arbitration in the Arbitration-Law Context: Consent to, and Fairness in, the UDRP

Domain-Name Arbitration in the Arbitration-Law Context: Consent to, and Fairness in, the UDRP

This Article begins by introducing the domain-name arbitration system. This Article provides what may be the first sustained analysis of consent issues in domain-name arbitration. It also assesses the fairness of domain-name arbitration.

Wednesday, November 27, 2013

Federal Arbitration Act Preemption

Ohio State law professor Sarah Rudolph Cole is an experienced, careful, and well-balanced scholar of arbitration law.  Her recent article discusses one of the most important topics in arbitration law, FAA preemption of state law.  She points out that the Supreme Court’s Stolt-Nielsen (2010) and Concepcion (2011) decisions permit preemption of state law in areas the FAA does not address.

Teaching Arbitration Law

This article is written with the following goals: to provide useful suggestions for those who teach arbitration, to persuade some ADR teachers who only touch on arbitration to give serious thought to additional coverage, to persuade some teachers to include a bit of arbitration in their first-year courses, and to encourage the continued growth of fine teaching materials on arbitration.

Sunday, November 24, 2013

West Virginia Arbitration Cases

Liz Kramer rightly says "A few months ago, you would have reasonably thought that West Virginia was one of the most anti-arbitration states in the country.  There was not an unconscionability argument that the state didn’t seem to buy with respect to arbitration clauses."  However, she explains, recent cases show the state's high court more receptive to enforcing arbitration clauses. 

West Virginia has some similarities to Alabama and Montana, other states that have had anti-arbitration bents at various times, insofar as all 3 states have a cultural populism and strong plaintiffs' bar that can combine against outsiders, particular businesses from outside the state.  I wrote about that in The Alabama Story: Arbitration shows law’s connection to politics, culture, DISP. RESOL. MAG. 24 (Summer 2001), reprinted as Arbitration: A License to Steal, 12 WORLD ARB. & MED. REP. 316 (Dec. 2001).

Saturday, November 23, 2013

The Source of Alabama's Abundance of Arbitration Cases: Alabama's Bizarre Law of Damages for Mental Anguish

This Article, co-authored with Scott Simpson and Vicki Willard, provides an overview of arbitration litigation in Alabama, including the evolution of mental anguish jurisprudence in contract cases, especially with regard to the automobile and home industries.  It proposes substantive and procedural reforms.

Friday, November 22, 2013

Social Networking Users Routinely Agree to Arbitrate

Suffolk University Law Professor  Michael Rustad writes here that users of social network sites "around the world are required to agree to predispute mandatory arbitration as a condition of joining social networking communities. Consumers who enter into “clickwrap” or “browsewrap” terms of service agreements waive their right to a jury trial, discovery, and appeal, without reasonable notice that they are waiving these important rights." 

For my views on the enforceability of these and other consumer arbitration clauses, see The Case for Enforcing Adhesive Arbitration Agreements

Monday, November 18, 2013

Consumer and Employment Arbitration Law in Comparative Perspective: The Importance of the Civil Jury

This article argues that much of what makes civil litigation in the United States materially different from civil litigation elsewhere in the world can plausibly be traced back to the jury. By contrast, enforcement of consumer and employment arbitration agreements affects only a few categories of cases and, within those categories, affects only those cases in which an enforceable arbitration agreement has been formed. The civil jury is a mountain; enforcement of consumer and employment arbitration agreements is a molehill. Those who value uniformity across nations and seek to bring U.S. law into the international mainstream should be far more troubled by the civil jury than by enforcement of consumer and employment arbitration agreements. Bringing the United States into the mainstream on the civil jury might even bring it into the mainstream on arbitration. It may not be a coincidence that the only nation with the civil jury is the only nation that enforces consumer and employment arbitration agreements.

Thursday, November 14, 2013

The Case for Enforcing Adhesive Arbitration Agreements

Arbitration clauses appear in a wide variety of the form contracts through which consumers obtain goods, services and credit, as well as in employment agreements, and other contracts of ordinary individuals. These adhesive agreements to arbitrate are generally enforced by courts, but this enforcement is quite controversial. Countless law review articles criticize it, while the few that defend it are usually limited in important ways. This paper defends the general enforcement of adhesive arbitration agreements.

Section I shows that this general enforcement is socially desirable and that it benefits most consumers, employees and other adhering parties. Section II introduces the doctrines on which courts most commonly rely in refusing to enforce particular adhesive arbitration agreements, the unconscionability and effectively vindicate doctrines, and applies them to typical adhesive arbitration agreements. Sections III and IV apply these doctrines to two issues that are now hotly contested in the courts: an arbitration agreement's prohibition of class actions (discussed in Section III) and the costs of pursuing a claim in arbitration (discussed in Section IV).

This paper concludes in Section V that many courts have been too reluctant to enforce adhesive arbitration agreements that prohibit class actions or require plaintiffs to pay forum fees not required in litigation. This reluctance is largely caused by courts narrowly considering only how the arbitration agreement affects the particular adhering party before the court, and considering those effects given the existence of the particular dispute that gave rise to litigation. This paper calls on courts to take the broader approach of considering all the adhering parties who adhered to the same form contract and considering the agreement's effects on those parties as of the time they entered into the agreement. This ex ante perspective would lead courts to consider the adhering parties who benefit from, as well as those who are harmed by, adhesive arbitration agreements.

Wednesday, November 13, 2013

$2.76 Billion Arbitration Award

$2.76 Billion arbitration award against Starbuck's.  I don't recall ever hearing of such a large award in any other arbitration. 

Sunday, November 10, 2013

"Whether Class Arbitration?" Decided by Courts, not Arbitrators

Recent Sixth Circuit holding summarized by Liz Kramer "even though a plurality of the Supreme Court concluded in Bazzle that classwide arbitration is a question for arbitrators, the Sixth Circuit held this week that it is a gateway question that is presumptively for judges.  Furthermore, in this case the parties had not clearly and explicitly authorized arbitrators to determine the availability of class action, so the default rule governed."  The "gateway" analysis the Supreme Court started years ago guides lower courts on a variety of issues but I wonder if it's good guidance.

Monday, November 4, 2013

Arbitration for Baseball Star Alex Rodriquez

This article shows the money and intensity in the A-Rod arbitration, with some New York landmarks for color, e.g., "after Mr. Reyes had been served the subpoena at the Times Square toy store, he was back on Park Avenue to testify in the arbitration."  Read more

Sunday, November 3, 2013

Consumer Arbitration

Paying the Price of Process: Judicial Regulation of Consumer Arbitration Agreements

Arbitration clauses now appear in many of the form contracts through which consumers obtain goods, services and credit. This article in the Journal of Dispute Resolution considers the effect on prices of two sorts of judicial decisions: (1) decisions making consumer arbitration clauses generally enforceable, and (2) decisions refusing to enforce arbitration clauses that lack certain pro-consumer features.