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Arbitration
What Constitutes Arbitration for Federal Arbitration Act Purposes?
June 24, 2014
The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1–16, codifies the federal policy of enforcing arbitration agreements. In Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983), the Supreme Court noted that “Section 2 [of the Act] is a congressional declaration of a liberal federal policy favoring arbitration, notwithstanding any state substantive or procedural policies to the contrary. The effect of the section is to create a body of federal substantive law of arbitrability,...
June 24, 2014
The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1–16, codifies the federal policy of enforcing arbitration agreements. In Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983), the Supreme Court noted that “Section 2 [of the Act] is a congressional declaration of a liberal federal policy favoring arbitration, notwithstanding any state substantive or procedural policies to the contrary. The effect of the section is to create a body of federal substantive law of arbitrability,...
Judge Posner Sarcastically Applauds ‘New Form of Arbitration’ After Garner’s Expert Evaluates Tiff
May 22, 2014
Legal Times published Posner’s response in a second article. “Please convey my congratulations to Bryan Garner on inventing a new form of arbitration,” Posner wrote in an email to Legal Times. “Two parties have a dispute; one appoints an arbitrator to resolve the dispute; the other disputant is not consulted.” “How beautifully that simplifies arbitration!” Posner continued. “No need for the parties to agree on an arbitrator, or for the American Arbitration Association to list...
May 22, 2014
Legal Times published Posner’s response in a second article. “Please convey my congratulations to Bryan Garner on inventing a new form of arbitration,” Posner wrote in an email to Legal Times. “Two parties have a dispute; one appoints an arbitrator to resolve the dispute; the other disputant is not consulted.” “How beautifully that simplifies arbitration!” Posner continued. “No need for the parties to agree on an arbitrator, or for the American Arbitration Association to list...
Rethinking the Arbitration Clause
May 19, 2014
We’ve discussed the ins and outs of arbitration at length previously. I’ve spent the last few years in a number of arbitration proceedings so in no particular order here are my recent thoughts on the process: 1. Speed. From start to finish there is no faster means to an end than arbitration. I always tell folks it is hard to go to trial, everything is stacked against it. In most cases you go once you are the oldest case meaning you are looking at 2 years before a trial. That means lots of starts...
May 19, 2014
We’ve discussed the ins and outs of arbitration at length previously. I’ve spent the last few years in a number of arbitration proceedings so in no particular order here are my recent thoughts on the process: 1. Speed. From start to finish there is no faster means to an end than arbitration. I always tell folks it is hard to go to trial, everything is stacked against it. In most cases you go once you are the oldest case meaning you are looking at 2 years before a trial. That means lots of starts...
Five Things You Didn’t Know about Arbitration
May 8, 2014
Arbitration is by no means a new option for resolving disputes. Yet, parties and their counsel may not be aware of everything...
May 8, 2014
Arbitration is by no means a new option for resolving disputes. Yet, parties and their counsel may not be aware of everything...
Fifth Circuit Holds Issue of Arbitrability Must be Decided by an Arbitrator in Pharmacy Dispute
May 1, 2014
The United States Court of Appeals for the Fifth Circuit has ordered that a dispute between numerous independent pharmacies and CVS Caremark Corporation and three of the company’s related business entities (“CVS”) be submitted to arbitration. In Crawford Professional Drugs, et al. v. CVS Caremark Corp., et al., No. 12-60922 (5th Cir. April 4, 2014), 23 drugstores that participated in a pharmacy benefit-management network offered by CVS claim the corporation inappropriately used...
May 1, 2014
The United States Court of Appeals for the Fifth Circuit has ordered that a dispute between numerous independent pharmacies and CVS Caremark Corporation and three of the company’s related business entities (“CVS”) be submitted to arbitration. In Crawford Professional Drugs, et al. v. CVS Caremark Corp., et al., No. 12-60922 (5th Cir. April 4, 2014), 23 drugstores that participated in a pharmacy benefit-management network offered by CVS claim the corporation inappropriately used...
Three Lessons on Appealing from Arbitrations
April 29, 2014
Three decisions came out recently that offer guidance on appealing from arbitration awards. Here are three pearls of arbitration...
April 29, 2014
Three decisions came out recently that offer guidance on appealing from arbitration awards. Here are three pearls of arbitration...
Crowd Arbitration: Crowdsourced Dispute Resolution Part IV
April 24, 2014
Can crowd arbitration do justice? It depends, of course, on the definition of justice. According to H.L.A. Hart inThe Concept of Law, justice means having like cases being treated alike. H.L.A. HART, THE CONCEPT OF LAW (2nd ed., Oxford, Clarendon Press, 1994), Ch. VII. Only relevant differences should be considered when reaching a different result from another case. Id. Under this definition, crowd arbitration’s justness depends on the consistency of the community in similar cases. Because...
April 24, 2014
Can crowd arbitration do justice? It depends, of course, on the definition of justice. According to H.L.A. Hart inThe Concept of Law, justice means having like cases being treated alike. H.L.A. HART, THE CONCEPT OF LAW (2nd ed., Oxford, Clarendon Press, 1994), Ch. VII. Only relevant differences should be considered when reaching a different result from another case. Id. Under this definition, crowd arbitration’s justness depends on the consistency of the community in similar cases. Because...
Crowd Arbitration: Crowdsourced Dispute Resolution Part III
April 24, 2014
Do the benefits of time and cost savings make crowd arbitration a less reliable means of dispute resolution? In fact, the result is the opposite–having more people participate is actually likely to make the dispute resolution far more reliable and predictable than any other method. This reliability comes from the power of numbers. Statistically, averaging a larger sample provides a more accurate reflection of the community’s reasoning and values. Put another way, crowd arbitration eliminates...
April 24, 2014
Do the benefits of time and cost savings make crowd arbitration a less reliable means of dispute resolution? In fact, the result is the opposite–having more people participate is actually likely to make the dispute resolution far more reliable and predictable than any other method. This reliability comes from the power of numbers. Statistically, averaging a larger sample provides a more accurate reflection of the community’s reasoning and values. Put another way, crowd arbitration eliminates...
The Future of Class Arbitration Part III
April 22, 2014
In addition to a lack of clarity regarding the avenues through which class arbitration may survive, debate surrounding...
April 22, 2014
In addition to a lack of clarity regarding the avenues through which class arbitration may survive, debate surrounding...
The Future of Class Arbitration Part II
April 22, 2014
In light of the above class arbitration jurisprudence, it is evident that the Supreme Court is quite hostile to class arbitration. ...
April 22, 2014
In light of the above class arbitration jurisprudence, it is evident that the Supreme Court is quite hostile to class arbitration. ...
