Blog Archives
Ninth Circuit Strikes Down Arbitration Clause that Renders Arbitral Decision Unappealable
January 21, 2014
I have been thinking a lot about Peggy Radin's book Boilerplate and her arguments about how boilerplate contacts threaten a democratic degradation (discussed elsewhere on the blog by Brian Bix, with Peggy Radin responding here, and by David Horton) because they permit private parties, powerful companies, to negate statutory or common law rights. The Ninth Circuit has put its foot down and refused to permit a potential innovation in the direction of democratic degradation, but the odd thing about...
January 21, 2014
I have been thinking a lot about Peggy Radin's book Boilerplate and her arguments about how boilerplate contacts threaten a democratic degradation (discussed elsewhere on the blog by Brian Bix, with Peggy Radin responding here, and by David Horton) because they permit private parties, powerful companies, to negate statutory or common law rights. The Ninth Circuit has put its foot down and refused to permit a potential innovation in the direction of democratic degradation, but the odd thing about...
New Study Reveals How People Want Their Lawsuits Resolved
January 21, 2014
As court systems throughout the country struggle to deliver civil justice in the face of budget cuts, a new study by a UC Davis law professor finds that people involved in civil lawsuits prefer mediation to nonbinding arbitration and like judge trials more than jury trials. In her study, "The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante," Donna Shestowsky, who teaches negotiation strategy, alternative dispute resolution and legal psychology, reveals the legal...
January 21, 2014
As court systems throughout the country struggle to deliver civil justice in the face of budget cuts, a new study by a UC Davis law professor finds that people involved in civil lawsuits prefer mediation to nonbinding arbitration and like judge trials more than jury trials. In her study, "The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante," Donna Shestowsky, who teaches negotiation strategy, alternative dispute resolution and legal psychology, reveals the legal...
Apple Settles ‘App-cident’ Lawsuit
January 20, 2014
Whoops! It was an app-cident. Apple is settling a case with the Federal Trade Commission by agreeing to refund customers over $32 million for accidental application purchases, according to Anna Gallegos in a Lexblog post. Jennifer Kerr in the Associated Press reports the suit stemmed from parents whose children unknowingly racked up large fines when playing games on their iPads and iPhones, such as Jackie Nussbaum. Her son was 10 years old when he unwittingly spent over $600 on the family iPad...
January 20, 2014
Whoops! It was an app-cident. Apple is settling a case with the Federal Trade Commission by agreeing to refund customers over $32 million for accidental application purchases, according to Anna Gallegos in a Lexblog post. Jennifer Kerr in the Associated Press reports the suit stemmed from parents whose children unknowingly racked up large fines when playing games on their iPads and iPhones, such as Jackie Nussbaum. Her son was 10 years old when he unwittingly spent over $600 on the family iPad...
DOJ Settlements: Don’t Believe the Hype?
January 20, 2014
The Department of Justice announced this month that it collected a whopping $8 billion in civil and criminal settlements last year. But is the agency telling the whole story about whether these settlements are wins or losses for the public?
January 20, 2014
The Department of Justice announced this month that it collected a whopping $8 billion in civil and criminal settlements last year. But is the agency telling the whole story about whether these settlements are wins or losses for the public?
Securities Lawsuit Filings Up Slightly in 2013
January 20, 2014
The number of securities class action lawsuit filings was up slightly in 2013 compared to 2012, although the 2013 filings remained well below historical averages. While securities litigation picked up in 2013 compared to the year before, the more interesting question going forward is what the impact of the Halliburton case now pending before the U.S. Supreme Court will be; if the Court sets aside the presumption of reliance at the class certification stage based on the “fraud on the market” theory,...
January 20, 2014
The number of securities class action lawsuit filings was up slightly in 2013 compared to 2012, although the 2013 filings remained well below historical averages. While securities litigation picked up in 2013 compared to the year before, the more interesting question going forward is what the impact of the Halliburton case now pending before the U.S. Supreme Court will be; if the Court sets aside the presumption of reliance at the class certification stage based on the “fraud on the market” theory,...
Mediator Improperly Testified About Oral Settlement in Kansas Mediation, Absent Statutory Exception
January 20, 2014
A Kansas appellate court concluded that the trial court erred in permitting a mediator to testify that an oral agreement had been reached in mediation and what the terms of the purported agreement were. The appellate court noted that several states, including Louisiana, Ohio, Wisconsin, Kentucky, Connecticut, Iowa and Wyoming, have express exceptions allowing mediators to testify about disputed agreements, but that Kansas does not have such an exception. Thus, the general rule of mediation confidentiality...
January 20, 2014
A Kansas appellate court concluded that the trial court erred in permitting a mediator to testify that an oral agreement had been reached in mediation and what the terms of the purported agreement were. The appellate court noted that several states, including Louisiana, Ohio, Wisconsin, Kentucky, Connecticut, Iowa and Wyoming, have express exceptions allowing mediators to testify about disputed agreements, but that Kansas does not have such an exception. Thus, the general rule of mediation confidentiality...
What A-Rod Can Teach About A-rbitration
January 20, 2014
Arbitration is in the news. Not just a buried paragraph in the business section, but the front page. (A three-arbitrator panel issued a 34-page arbitration award finding Major League Baseball was justified in suspending baseball player Alex Rodriguez for 162 games, which A-Rod is now trying to vacate.) My own hope is that this high-profile arbitration becomes a tool for teaching the public about arbitration. Indeed, A-Rod’s experience to date offers pointers for everyone from the arbitration...
January 20, 2014
Arbitration is in the news. Not just a buried paragraph in the business section, but the front page. (A three-arbitrator panel issued a 34-page arbitration award finding Major League Baseball was justified in suspending baseball player Alex Rodriguez for 162 games, which A-Rod is now trying to vacate.) My own hope is that this high-profile arbitration becomes a tool for teaching the public about arbitration. Indeed, A-Rod’s experience to date offers pointers for everyone from the arbitration...
Nurse Properly Fired and Denied Unemployment Due to Facebook Rant
January 19, 2014
Guevarra worked as a staff nurse at Seton Medical Center for 12 years. In mid-May 2011, shortly before she went to work, she posted the following Facebook post: Instead of spending my birthday celebrating, I will be working all night cleaning up feces. I loathe that effin heffer!!! Burn in hell you effed up spawn of satan. I curse you and wish you a lifetime of pain and suffering. That is not enough, right now I would give anything you small you down and pound you to unconsciousness. ‘Tang ina*...
January 19, 2014
Guevarra worked as a staff nurse at Seton Medical Center for 12 years. In mid-May 2011, shortly before she went to work, she posted the following Facebook post: Instead of spending my birthday celebrating, I will be working all night cleaning up feces. I loathe that effin heffer!!! Burn in hell you effed up spawn of satan. I curse you and wish you a lifetime of pain and suffering. That is not enough, right now I would give anything you small you down and pound you to unconsciousness. ‘Tang ina*...
Law Profs Oppose ABA Proposal to Eliminate Tenure as Accreditation Requirement
January 19, 2014
National Law Journal: Law Professors Give ABA an Earful on Tenure's Future, by Karen Sloan: The ABA proposal to eliminate its tenure requirement for law schools drew a hostile reception during the Association of American Law School’s annual meeting in New York over the weekend. An overflow crowd of law professors packed into a meeting room during a panel discussion on Saturday to express outrage over the idea. The ABA’s Section of Legal Education and Admissions to the Bar billed the discussion...
January 19, 2014
National Law Journal: Law Professors Give ABA an Earful on Tenure's Future, by Karen Sloan: The ABA proposal to eliminate its tenure requirement for law schools drew a hostile reception during the Association of American Law School’s annual meeting in New York over the weekend. An overflow crowd of law professors packed into a meeting room during a panel discussion on Saturday to express outrage over the idea. The ABA’s Section of Legal Education and Admissions to the Bar billed the discussion...
Crisis in Legal Education or the Other Things Law Students Should Be Learning and Doing
January 19, 2014
This essay reviews the recent criticisms of legal education (costs, loss of job opportunities, content of curricula) and suggests that law students might be better served by studying and learning different things in law school – not only conventional Socratic, doctrinal and even, adversarial clinical education, but organizational development, problem solving, decision making, group dynamics, dispute resolution and dispute system design. The article also contrasts two other professions – one newer...
January 19, 2014
This essay reviews the recent criticisms of legal education (costs, loss of job opportunities, content of curricula) and suggests that law students might be better served by studying and learning different things in law school – not only conventional Socratic, doctrinal and even, adversarial clinical education, but organizational development, problem solving, decision making, group dynamics, dispute resolution and dispute system design. The article also contrasts two other professions – one newer...
