Money, Politics and Judicial Decisions: A Case Study of Arbitration Law in Alabama

This article presents the results of a study of 106 decisions by the Supreme Court of Alabama from January 18, 1995 through July 9, 1999. The decisions are in the area of arbitration law and reveal the remarkably close correlation between a justice's votes on arbitration cases and his or her primary source or campaign funds. Justices whose election campaigns are funded by plaintiffs' lawyers oppose arbitration, whereas justices whose campaigns are funded by business favor arbitration. The correlation holds not just with regard to ideologically-charged doctrines, like unconscionability, but also with seemingly bland questions of contract formation, interpretation and waiver.

Journal of Law & Politics, Vol. 15, No. 645,

Is Adjudication a Public Good?: 'Overcrowded Courts' and the Private-Sector Alternative of Arbitration

This article was published in  Cardozo Journal of Conflict Resolution, Vol. 14, 2013
 It asks which disputing parties deserve subsidized adjudication which should have to pay market rates for it? Our society’s failure to confront this important question allows all disputing parties to pursue the subsidy for themselves. The result is that parties who do not deserve the subsidy — parties who should be paying market rates for adjudication — are consuming public resources that would be better spent on parties who do deserve the subsidy.

One way to end the public subsidy for cases that do not deserve it is for courts to charge the parties to such a case a fee high enough to reimburse the court for its costs of adjudicating the case. Such “user fees” have been proposed by several thoughtful commentators. This article assesses those proposals and suggests that user fees would make litigation look more like arbitration. This article concludes by considering the possibility that the public-sector court system and private arbitration organizations could compete in the market for unsubsidized adjudication and in the market for subsidized adjudication. In short, this article places discussions of overcrowded courts and court user fees in the context of a society — our society — with a strong private-sector alternative to our courts.

Arbitration Clause in Lawyer's Contract with Client

A law firm's contract with its client said either side could opt for binding arbitration to settle a fee dispute or “any other dispute that arises out of or relates to this agreement or the services provided by the law firm.”  Despite this clause, the client sued the firm and three lawyers for malpractice. The First Circuit affirmed the district court in enforcing the arbitration clause and dismissing the case.

Read more in the National Law Journal about Bezio v. Draeger

An analysis by Jeff Mason contrasts this First Circuit Bezio case with a Ninth Circuit case, Smith v. JEM, 2013 WL 6570899 (9th Cir. Dec. 16, 2013), affirming a district court holding that the arbitration clause was unconscionable under Washington state law that makes arbitration clauses material provisions in attorney retainer agreements and, as such, enforceable only if “fully disclosed.”   Jeff Mason asks if The Easiest Arbitration Agreement to Avoid May Be the One Between Attorney and Client and "Are lawyers’ clients really such a special group of consumers that their arbitration clauses should be held to different standards?"  See also  Hodges v. Reasonover, 103 So. 3d 1069 (La. 2012) (placing special hurdles to enforcement of lawyer-client arbitration clauses).

Bankruptcy Law's Treatment of Creditors' Jury-Trial and Arbitration Rights

Bankruptcy Law's Treatment of Creditors' Jury-Trial and Arbitration Rights

This article starts with an apparent anomaly: Bankruptcy law treats the constitutional jury right with less deference than the, merely statutory, right to arbitrate.

This article explains that this apparent anomaly is actually the plausible result of a limitation within the Seventh Amendment jury right, its applicability only to claims at law but not claims in equity. The right to arbitrate is not similarly limited. So creditors seeking to arbitrate claims by and against debtors in bankruptcy are not defeated by longstanding holdings placing such claims on the equity side of the law/equity line. In contrast, creditors seeking jury trials of claims by and against debtors in bankruptcy are defeated by such holdings.

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.

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.

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

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.

$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.