Suit against LegalZoom must go to arbitration, Arkansas Supreme Court says

Suit against LegalZoom must go to arbitration, Arkansas Supreme Court says

The 5-2 decision reverses a trial court order that denied the company's motion to compel arbitration of a class action accusing LegalZoom of violating the Arkansas Deceptive Trade Practices Act by providing services that amount to the unauthorized practice of law.

Appeals Court Throws Out Confidential Arbitration in Delaware

Appeals Court Throws Out Confidential Arbitration in Delaware

"The United States Court of Appeals for the Third Circuit upheld a lower court ruling that Delaware’s state-sponsored arbitration program violated the First Amendment."  Those words, "state-sponsored", are key.  This "arbitration" was not arbitration in the usual sense of a private-sector alternative to the public-sector courts.

Arbitration Clauses, Jury-Waiver Clauses and Other Contractual Waivers of Constitutional Rights

Consenting to a contract containing an arbitration clause or a jury-waiver clause alienates or waives the Seventh Amendment jury-trial right in federal court. The standards of consent in arbitration law, however, tend to be lower than the standards of consent in the federal caselaw governing jury-waiver clauses. The Federal Arbitration Act (FAA) requires courts to apply contract law's standards of consent to arbitration agreements, while certain commentators argue that courts are instead constitutionally required to apply the higher standards of consent (knowing consent) found in the caselaw governing jury-waiver clauses. This article responds to these commentators and argues that the FAA's contract-law standards of consent are constitutional.

The Effects of Gilmer: Empirical and Other Approaches to the Study of Employment Arbitration

The Effects of Gilmer: Empirical and Other Approaches to the Study of Employment Arbitration

An article by Christine Jolls, Accommodation Mandates, 53 Stanford Law Review 223 (2000), provides a framework for analyzing the effects of employment discrimination statutes. This article extends that framework to employment arbitration to describe the effects of enforcement of employees' pre-dispute arbitration agreements. The article also critically reviews empirical studies of these effects.

Contractual Arbitration, Mandatory Arbitration and State Constitutional Jury-Trial Rights

Contractual Arbitration, Mandatory Arbitration and State Constitutional Jury-Trial Rights

This Article discusses the relationship between the Federal Arbitration Act and state constitutional jury-trial rights.

Arbitration and Assimilation

Arbitration and Assimilation

Arbitration is not necessarily antithetical to the assimilation of different groups. While intra-group arbitration allows for various groups to separate into their own cocoons, general arbitration can be the handmaiden of assimilation. Both types of arbitration deserve to flourish.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=931708

Privatizing Law Through Arbitration

Default Rules from Mandatory Rules: Privatizing Law Through Arbitration

This Article considers the extent to which the creation of law has been privatized through arbitration. It suggests that, under Supreme Court cases and other current legal doctrine, vast areas of law are privatizable and that this degree of privatization is possible only through arbitration. The implications of this point are separated along the familiar line between mandatory rules of law and default rules. The first implication is that arbitration jeopardizes mandatory rules of law. To preserve the mandatory effect of these rules, the Supreme Court must make a choice. The Court must either reverse its decisions that claims arising under otherwise mandatory rules are arbitrable, or require de novo judicial review of arbitrators' legal rulings on such claims. The second implication is that claims arising under default rules should be arbitrable and completely free from judicial review for errors of law. The arbitration of claims arising under default rules presents an opportunity to privatize the creation of vast areas of law. It is an opportunity to create private legal systems of unwritten norms, written rules, and the precedents of private courts.

Consumer Arbitration as Exceptional Consumer Law

Consumer Arbitration as Exceptional Consumer Law.  This article (part of a symposium on arbitration held by the McGeorge School of Law) defends the contractual approach to arbitration law.

Arbitration and Unconscionability

Wake Forest Law Review.

This article advocates the contractual approach over competing approaches to issues of unconscionability in arbitration.

Punitive Damages in Arbitration

A contractualist approach to the question of whether arbitrators may award punitive damages. Addresses choice-of-law clauses and constitutional issues. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=996742

 
Fordham Law Review Vol. 63, No. 529, 1994

Employment Arbitration and Voluntary Consent

Ware, Stephen J., Employment Arbitration and Voluntary Consent. Hofstra Law Review, Vol. 25, No. 83, 1996. Available at SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=10318