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Meditating on Those Sunk Costs
February 19, 2014
The sunk-cost fallacy leads to all sorts of poor decision-making — like staying too long at a bad job or refusing to drop out of a hopeless mayoral campaign. Here’s how Dubner explained it in our podcast on quitting: A “sunk cost” is just what it sounds like: time or money you’ve already spent. The sunk-cost fallacy is when you tell yourself that you can’t quit because of all that time or money you spent. We shouldn’t fall for this fallacy, but we do it all the time. But there’s...
February 19, 2014
The sunk-cost fallacy leads to all sorts of poor decision-making — like staying too long at a bad job or refusing to drop out of a hopeless mayoral campaign. Here’s how Dubner explained it in our podcast on quitting: A “sunk cost” is just what it sounds like: time or money you’ve already spent. The sunk-cost fallacy is when you tell yourself that you can’t quit because of all that time or money you spent. We shouldn’t fall for this fallacy, but we do it all the time. But there’s...
Waiver of Right to Arbitrate is Issue for Courts, Not Arbitrators
February 19, 2014
A California appellate court has confirmed that the issue of whether a party has waived the right to arbitrate is an issue to be decided by the trial court, not the arbitrator. Defendants in a dispute regarding a stock purchase agreement moved to compel arbitration pursuant to that agreement, but only after they filed a demurrer to the complaint, moved to require plaintiffs to furnish a bond, and commenced their own lawsuit against plaintiffs for alleged misrepresentations made in connection with...
February 19, 2014
A California appellate court has confirmed that the issue of whether a party has waived the right to arbitrate is an issue to be decided by the trial court, not the arbitrator. Defendants in a dispute regarding a stock purchase agreement moved to compel arbitration pursuant to that agreement, but only after they filed a demurrer to the complaint, moved to require plaintiffs to furnish a bond, and commenced their own lawsuit against plaintiffs for alleged misrepresentations made in connection with...
Burnham on Contracting Around Negligence
February 18, 2014
Scott J. Burnham (Gonzaga University School of Law) has posted Are You Free to Contract Away Your Right to Bring a Negligence Claim?(Chicago-Kent Law Review, Vol. 89, p. 379, 2014) on SSRN. Here is the abstract: This article explores the enforceability of the exculpatory clause -- a contract term in which one party agrees to give up the right to bring a negligence claim against the other party. A spectrum of views on whether a contract containing such a clause is aberrant or not is presented and analyzed,...
February 18, 2014
Scott J. Burnham (Gonzaga University School of Law) has posted Are You Free to Contract Away Your Right to Bring a Negligence Claim?(Chicago-Kent Law Review, Vol. 89, p. 379, 2014) on SSRN. Here is the abstract: This article explores the enforceability of the exculpatory clause -- a contract term in which one party agrees to give up the right to bring a negligence claim against the other party. A spectrum of views on whether a contract containing such a clause is aberrant or not is presented and analyzed,...
Incorporating Arbitration Agreements By Reference: the Key is Reasonable Notice
February 18, 2014
In recent months, three federal circuit courts have confronted this question: can a defendant compel arbitration even in the absence of a signed written agreement containing an arbitration clause? The answers were yes, no, and maybe, but the analysis in all three turns on whether the party resisting arbitration should reasonably have known that an arbitration clause was part of the deal.
February 18, 2014
In recent months, three federal circuit courts have confronted this question: can a defendant compel arbitration even in the absence of a signed written agreement containing an arbitration clause? The answers were yes, no, and maybe, but the analysis in all three turns on whether the party resisting arbitration should reasonably have known that an arbitration clause was part of the deal.
Testing Whether Judges Follow The Law
February 18, 2014
In Do Judges Follow the Law? An Empirical Test of Congressional Control Over Judicial Behavior, Todd Henderson and William Hubbard (Chicago) set out to empirically test the naive model of judging which predicts that judges will follow unambiguous laws. To do so, the paper levers the Securities Exchange Act 21D, which requires courts to certify that attorneys complied with Rule 11(b)'s prohibition against frivolous claims. To test the model, the authors eschew the standard data source -- Westlaw...
February 18, 2014
In Do Judges Follow the Law? An Empirical Test of Congressional Control Over Judicial Behavior, Todd Henderson and William Hubbard (Chicago) set out to empirically test the naive model of judging which predicts that judges will follow unambiguous laws. To do so, the paper levers the Securities Exchange Act 21D, which requires courts to certify that attorneys complied with Rule 11(b)'s prohibition against frivolous claims. To test the model, the authors eschew the standard data source -- Westlaw...
Highly Accurate Predictive Analytics Used to Help Settle Longshot Mediation
February 18, 2014
According to reports, Mary Brennan Stich, Vice-President and Associate General Counsel of Rackspace Hosting, recently used...
February 18, 2014
According to reports, Mary Brennan Stich, Vice-President and Associate General Counsel of Rackspace Hosting, recently used...
The Influence of Emotional Intelligence on Negotiation Outcomes and the Mediating Effect of Rapport
February 18, 2014
Although early research on negotiation focused on cognition and decision-making processes, recently, negotiation scholars have started to pay attention to the importance of emotion in negotiation and have suggested that emotional intelligence is likely to improve negotiation performance. Few studies, however, have tested the relationship between emotional intelligence and negotiation outcomes. This study contributes by empirically testing the influence of emotional intelligence on specific negotiation...
February 18, 2014
Although early research on negotiation focused on cognition and decision-making processes, recently, negotiation scholars have started to pay attention to the importance of emotion in negotiation and have suggested that emotional intelligence is likely to improve negotiation performance. Few studies, however, have tested the relationship between emotional intelligence and negotiation outcomes. This study contributes by empirically testing the influence of emotional intelligence on specific negotiation...
Surden on Technological Cost & IP Governance
February 17, 2014
Harry Surden (University of Colorado Law School) has postedTechnological Cost as Law in Intellectual Property (Harvard Journal of Law and Technology, Vol. 27, No. 1, 2013) on SSRN. Here is the abstract: Changes in the scope of IP legal rights are generally thought to be linked to changes in positive law. This Article argues that shifts in the scope of IP laws are often driven by changes in technological feasibility and not by changes in positive law. Diminishing technological constraint is an under-acknowledged...
February 17, 2014
Harry Surden (University of Colorado Law School) has postedTechnological Cost as Law in Intellectual Property (Harvard Journal of Law and Technology, Vol. 27, No. 1, 2013) on SSRN. Here is the abstract: Changes in the scope of IP legal rights are generally thought to be linked to changes in positive law. This Article argues that shifts in the scope of IP laws are often driven by changes in technological feasibility and not by changes in positive law. Diminishing technological constraint is an under-acknowledged...
D&O Insurance: Settlement of Antitrust Claim for Underpaid Wages Not Excluded “Disgorgement”
February 17, 2014
A settlement of an antitrust lawsuit alleging that a group of hospitals conspired to underpay their nurses did not represent excluded “disgorgement” and therefore was not excluded from coverage under William Beaumont Hospital’s management liability insurance policy, according to a January 16, 2014 Sixth Circuit decision. The opinion will likely be of particular interest to policyholder advocates disputing insurers’ position that an amount for which insurance coverage is sought represents...
February 17, 2014
A settlement of an antitrust lawsuit alleging that a group of hospitals conspired to underpay their nurses did not represent excluded “disgorgement” and therefore was not excluded from coverage under William Beaumont Hospital’s management liability insurance policy, according to a January 16, 2014 Sixth Circuit decision. The opinion will likely be of particular interest to policyholder advocates disputing insurers’ position that an amount for which insurance coverage is sought represents...
Court Approves Arbitrator’s Allowance of Class Arbitration by Estoppel
February 17, 2014
In Hill v. Wackenhut Services International, an employment-related dispute involving alleged unpaid compensation for employees’ work on American military bases overseas, the U.S. District Court for the District of Columbia upheld an arbitral award authorizing class arbitration, basing its decision on the extremely limited availability of judicial review of arbitral awards and two Supreme Court cases. Stolt-Nielsen S.A. v. Animal Feeds International Corp. (2010) held that a court may not uphold...
February 17, 2014
In Hill v. Wackenhut Services International, an employment-related dispute involving alleged unpaid compensation for employees’ work on American military bases overseas, the U.S. District Court for the District of Columbia upheld an arbitral award authorizing class arbitration, basing its decision on the extremely limited availability of judicial review of arbitral awards and two Supreme Court cases. Stolt-Nielsen S.A. v. Animal Feeds International Corp. (2010) held that a court may not uphold...
