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October 2013 Supreme Court Term Begins
October 31, 2013
The United States Supreme Court began its October 2013 term today. One of the cases the high court will consider this fall is BG Group PLC v. Republic of Argentina, Docket No. 12-138. In the case, the District of Columbia Circuit vacated an arbitral award that was issued as a result of a Bilateral Investment Treaty (“BIT”) entered into between the United Kingdom and Argentina. The treaty itself provides that any disputes between a business investor and a host nation will be resolved in the host...
October 31, 2013
The United States Supreme Court began its October 2013 term today. One of the cases the high court will consider this fall is BG Group PLC v. Republic of Argentina, Docket No. 12-138. In the case, the District of Columbia Circuit vacated an arbitral award that was issued as a result of a Bilateral Investment Treaty (“BIT”) entered into between the United Kingdom and Argentina. The treaty itself provides that any disputes between a business investor and a host nation will be resolved in the host...
Contrasting U.S. Litigation and International Arbitration
October 31, 2013
American litigators know that there is often a tortuous road between the filing of the complaint and trial. The parties’ positions, and how each side views the facts, tend to evolve through the initial pleadings, amended pleadings, motions to dismiss, documentary discovery, depositions, summary judgment motions, pretrial submissions, motions in limine, pretrial statements, trial briefs, and the course of trial itself. It is often not until after discovery is completed and summary judgment motions...
October 31, 2013
American litigators know that there is often a tortuous road between the filing of the complaint and trial. The parties’ positions, and how each side views the facts, tend to evolve through the initial pleadings, amended pleadings, motions to dismiss, documentary discovery, depositions, summary judgment motions, pretrial submissions, motions in limine, pretrial statements, trial briefs, and the course of trial itself. It is often not until after discovery is completed and summary judgment motions...
Public Courts as Private Arbitration Panels
October 31, 2013
Tom Stipanowich called the Delaware Court of Chancery’s arbitration program “a veritable trifecta of procedural advantages for commercial parties, including expert adjudication, efficient case management and short cycle time and, above all, a proceeding cloaked in secrecy.” But he warned that its constitutionality was in doubt. Now the Third Circuit Court of Appeals has, indeed, ruled it unconstitutional. The grounds for the ruling go to some of the most profound assumptions of access...
October 31, 2013
Tom Stipanowich called the Delaware Court of Chancery’s arbitration program “a veritable trifecta of procedural advantages for commercial parties, including expert adjudication, efficient case management and short cycle time and, above all, a proceeding cloaked in secrecy.” But he warned that its constitutionality was in doubt. Now the Third Circuit Court of Appeals has, indeed, ruled it unconstitutional. The grounds for the ruling go to some of the most profound assumptions of access...
Baby Boom: For Second Year in a Row, Large Firms Continue to Bring In More Baby Lawyers
October 30, 2013
Warren Knull says his first three weeks as a new corporate and securities associate with Andrews Kurth were "business boot camp" training. Knull and the firm's other baby lawyers went through a course the firm purchased called The Fullbridge Program, during which the associates formed teams to solve a case study. "We were tasked with deciding whether or not to build from scratch an air taxi business or acquire one of the major players already in the market," says Knull, a 2013 graduate of the University...
October 30, 2013
Warren Knull says his first three weeks as a new corporate and securities associate with Andrews Kurth were "business boot camp" training. Knull and the firm's other baby lawyers went through a course the firm purchased called The Fullbridge Program, during which the associates formed teams to solve a case study. "We were tasked with deciding whether or not to build from scratch an air taxi business or acquire one of the major players already in the market," says Knull, a 2013 graduate of the University...
Forget Dated Ideas About Left and Right Hemispheres
October 30, 2013
Excerpt from "A New Map of How We Think: Top Brain/Bottom Brain" (Wall Street Journal), an article extracted from a forthcoming...
October 30, 2013
Excerpt from "A New Map of How We Think: Top Brain/Bottom Brain" (Wall Street Journal), an article extracted from a forthcoming...
Attorneys and Negotiation Ethics: A Material Misunderstanding?
October 30, 2013
Attorney negotiation ethics is a timeless topic as evidenced in a recent contribution from Peter Reilly (Texas A&M), Andrea, and me entitled, Attorneys and Negotiation Ethics: A Material Misunderstanding? 29 Negotiation J. 265 (2013), (on SSRN and available for download here). The paper discusses the common themes across our various empirical work on the subject, and is the result of a presentation we made at the ABA DR Section Conference a couple of years ago. Thanks to my coauthors...
October 30, 2013
Attorney negotiation ethics is a timeless topic as evidenced in a recent contribution from Peter Reilly (Texas A&M), Andrea, and me entitled, Attorneys and Negotiation Ethics: A Material Misunderstanding? 29 Negotiation J. 265 (2013), (on SSRN and available for download here). The paper discusses the common themes across our various empirical work on the subject, and is the result of a presentation we made at the ABA DR Section Conference a couple of years ago. Thanks to my coauthors...
Rethinking Civil Litigation in Federal District Court
October 30, 2013
Over the past 200 years, litigation in federal courts has continually changed. The greatest change has taken place in the past 25 or 30 years. During this period, we have seen the almost total disappearance of civil trials in federal court. Trials have been largely supplanted by motions practice and settlement. But lawyers have not responded to this change and still conduct pretrial as if their cases are going to trial. I think that is a mistake, and in this article I offer suggestions as to what...
October 30, 2013
Over the past 200 years, litigation in federal courts has continually changed. The greatest change has taken place in the past 25 or 30 years. During this period, we have seen the almost total disappearance of civil trials in federal court. Trials have been largely supplanted by motions practice and settlement. But lawyers have not responded to this change and still conduct pretrial as if their cases are going to trial. I think that is a mistake, and in this article I offer suggestions as to what...
Courts Stopping Non-Signatories From Compelling Arbitration Through Equitable Estoppel
October 30, 2013
Now that we know the Supreme Court is not going to be addressing non-signatories’ ability to compel arbitration this term (at least not in the Toyota case), we can take a moment to look at what lower courts are doing with that issue. In short, the trend is for courts to clarify that it is very difficult for defendants who do not have an arbitration agreement with the plaintiff (non-signatories) to use equitable estoppel to compel arbitration of the plaintiff’s claims based on the plaintiff’s...
October 30, 2013
Now that we know the Supreme Court is not going to be addressing non-signatories’ ability to compel arbitration this term (at least not in the Toyota case), we can take a moment to look at what lower courts are doing with that issue. In short, the trend is for courts to clarify that it is very difficult for defendants who do not have an arbitration agreement with the plaintiff (non-signatories) to use equitable estoppel to compel arbitration of the plaintiff’s claims based on the plaintiff’s...
Big Data’s Just a Lot of Noise…Unless You Can Visualize It Panelists Say
October 29, 2013
When you get right down to it, all the data in the world doesn’t really make a difference unless you can process it. And the most effective way for people to process giant waves of data (they keep inventing new words to describe the quantity) is to see it as an image. That seemed to be the bottom line on the panel hosted by TechAmerica Foundation for its Big Data Roadshow on Energy. Brian Jones, a principal of SAP Energy and Utilities, moderated the panel. He explained that big data and visualization...
October 29, 2013
When you get right down to it, all the data in the world doesn’t really make a difference unless you can process it. And the most effective way for people to process giant waves of data (they keep inventing new words to describe the quantity) is to see it as an image. That seemed to be the bottom line on the panel hosted by TechAmerica Foundation for its Big Data Roadshow on Energy. Brian Jones, a principal of SAP Energy and Utilities, moderated the panel. He explained that big data and visualization...
Two New US Ninth Circuit Court of Appeals Arbitration Decisions
October 29, 2013
The US Court of Appeals for the Ninth Circuit released two opinions yesterday of some interest. In Chavarria v. Ralphs Grocery Company (No. 11-56673, October 28, 2013), the Court of Appeals held that the arbitration provision in an employment agreement was unenforceable because it was “procedurally unconscionable because it was a condition of applying for employment and was presented on a “take it or leave it” basis. In addition, its terms were not provided to the plaintiff until three...
October 29, 2013
The US Court of Appeals for the Ninth Circuit released two opinions yesterday of some interest. In Chavarria v. Ralphs Grocery Company (No. 11-56673, October 28, 2013), the Court of Appeals held that the arbitration provision in an employment agreement was unenforceable because it was “procedurally unconscionable because it was a condition of applying for employment and was presented on a “take it or leave it” basis. In addition, its terms were not provided to the plaintiff until three...
