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U.S. Supreme Court
SCOTUS Vacates CA State Employment Arbitration Opinion
February 24, 2014
In its Orders released this morning (http://www.supremecourt.gov/orders/courtorders/022414zor_19m2.pdf), the U.S. Supreme Court vacated the decision of the Second Appellate District of the Court of Appeal of California inCarmax Auto Superstores v. Fowler applying the so-called Gentry rule relating to class action waivers in arbitration agreements, and remanded the case back to the California state appellate court for further consideration in light of American Express Co. v. Italian Colors Restaurant. As...
February 24, 2014
In its Orders released this morning (http://www.supremecourt.gov/orders/courtorders/022414zor_19m2.pdf), the U.S. Supreme Court vacated the decision of the Second Appellate District of the Court of Appeal of California inCarmax Auto Superstores v. Fowler applying the so-called Gentry rule relating to class action waivers in arbitration agreements, and remanded the case back to the California state appellate court for further consideration in light of American Express Co. v. Italian Colors Restaurant. As...
Chancery Court Asks U.S. Supreme Court to Revive Arbitration Program
January 22, 2014
The Delaware Court of Chancery has filed a petition for a writ of certiorari asking the U.S. Supreme Court to overturn a federal appellate court decision declaring its confidential arbitration program unconstitutional. The petition was filed Tuesday, two days before the final deadline for a Supreme Court appeal was set to pass.
January 22, 2014
The Delaware Court of Chancery has filed a petition for a writ of certiorari asking the U.S. Supreme Court to overturn a federal appellate court decision declaring its confidential arbitration program unconstitutional. The petition was filed Tuesday, two days before the final deadline for a Supreme Court appeal was set to pass.
High Court Bulks Up on IP Cases
January 15, 2014
The U.S. Supreme Court agreed on Friday to hear two patent cases and one high-profile copyright fight, bringing the number of IP disputes on its docket to an unusual high. The U.S. Supreme Court agreed on Friday to hear two patent cases and one high-profile copyright fight, bringing the number of IP disputes on its docket to an unusual high. In a terse order, the justices agreed to hear copyright infringement claims against Aereo Inc., an online television start-up...
January 15, 2014
The U.S. Supreme Court agreed on Friday to hear two patent cases and one high-profile copyright fight, bringing the number of IP disputes on its docket to an unusual high. The U.S. Supreme Court agreed on Friday to hear two patent cases and one high-profile copyright fight, bringing the number of IP disputes on its docket to an unusual high. In a terse order, the justices agreed to hear copyright infringement claims against Aereo Inc., an online television start-up...
California Supreme Court Attempts to Thread the Unconscionability Needle
December 5, 2013
California’s appellate courts have had a strained relationship with the U.S. Supreme Court when it comes to enforcement of the FAA in the last few years. Illustrative of this tension is a recent decision captioned Sonic-Calabasas A, Inc. v. Moreno, No. S174475 (Cal. Oct. 17, 2013) (“Sonic II”). The Court in Sonic II was instructed by the U.S. Supreme Court to reconsider its ruling in Sonic-Calabasas A, Inc. v. Moreno, 51 Cal. 4th 659 (2011) (“Sonic I”), which invalidated an arbitration...
December 5, 2013
California’s appellate courts have had a strained relationship with the U.S. Supreme Court when it comes to enforcement of the FAA in the last few years. Illustrative of this tension is a recent decision captioned Sonic-Calabasas A, Inc. v. Moreno, No. S174475 (Cal. Oct. 17, 2013) (“Sonic II”). The Court in Sonic II was instructed by the U.S. Supreme Court to reconsider its ruling in Sonic-Calabasas A, Inc. v. Moreno, 51 Cal. 4th 659 (2011) (“Sonic I”), which invalidated an arbitration...
Legal Ethics Rules and the Federal Arbitration Act
September 8, 2013
While the U.S. Supreme Court as recently as last month has affirmed its preference to enforce contractual arbitration clauses, a federal judge in Philadelphia questioned Wednesday whether that standard is impacted by professional ethics rules when the arbitration clause involves a law firm's client engagement letter. In a hearing on whether the legal malpractice case of Sanford v. Bracewell & Giuliani should be stayed pending arbitration, U.S. District Judge Joel Slomsky of the Eastern District...
September 8, 2013
While the U.S. Supreme Court as recently as last month has affirmed its preference to enforce contractual arbitration clauses, a federal judge in Philadelphia questioned Wednesday whether that standard is impacted by professional ethics rules when the arbitration clause involves a law firm's client engagement letter. In a hearing on whether the legal malpractice case of Sanford v. Bracewell & Giuliani should be stayed pending arbitration, U.S. District Judge Joel Slomsky of the Eastern District...
Jury Size and the Hung-Jury Paradox
September 5, 2013
In Williams v. Florida (399 U.S. 78 [1970]), the U.S. Supreme Court decided a case addressing the constitutionality of juries...
September 5, 2013
In Williams v. Florida (399 U.S. 78 [1970]), the U.S. Supreme Court decided a case addressing the constitutionality of juries...
SCOTUS Backs Amex Class Arb Waiver
June 20, 2013
Is it too expensive to arbitrate without others in a formal class? It doesn't matter. You and your company will arbitrate. The U.S. Supreme Court this morning said that a class waiver in an arbitration contract between businesses can't be defeated by evidence that it is too costly to put on the case in American Express Co. v. Italian Colors Restaurant, No. 12–133 (June 20, 2012)(available here). The 10-page, 5-3 opinion by Associate Justice Antonin Scalia held, “The...
June 20, 2013
Is it too expensive to arbitrate without others in a formal class? It doesn't matter. You and your company will arbitrate. The U.S. Supreme Court this morning said that a class waiver in an arbitration contract between businesses can't be defeated by evidence that it is too costly to put on the case in American Express Co. v. Italian Colors Restaurant, No. 12–133 (June 20, 2012)(available here). The 10-page, 5-3 opinion by Associate Justice Antonin Scalia held, “The...
Strategic Citations to Precedent on the U.S. Supreme Court
May 23, 2013
Common law evolves not only through the outcomes of cases but also through the reasoning and citations to precedent employed in judicial opinions. We focus on citations to precedent by the U.S. Supreme Court. We demonstrate how strategic interaction between justices during the Court's bargaining process affects citations to precedent in the Court's opinion. We find that the majority opinion writer relies more heavily on precedent when the Court's decision is accompanied by separate opinions. We also...
May 23, 2013
Common law evolves not only through the outcomes of cases but also through the reasoning and citations to precedent employed in judicial opinions. We focus on citations to precedent by the U.S. Supreme Court. We demonstrate how strategic interaction between justices during the Court's bargaining process affects citations to precedent in the Court's opinion. We find that the majority opinion writer relies more heavily on precedent when the Court's decision is accompanied by separate opinions. We also...
SCOTUS ‘Simply Irrelevant’ To Daily Work of Trial Courts According to Federal Judge
May 10, 2013
Senior U.S. District Judge Richard Kopf of Nebraska isn’t afraid to criticize the U.S. Supreme Court. Sometimes the court “can really screw things up,” Kopf writes at his blog Hercules and the Umpire. As an example, he offers the 2005 U.S. Supreme Court decision in United States v. Booker, which effectively made the federal sentencing guidelines advisory. “If haphazardly injecting chaos into a system is a good thing, the Supreme Court is very good at that,” Kopf writes. But much...
May 10, 2013
Senior U.S. District Judge Richard Kopf of Nebraska isn’t afraid to criticize the U.S. Supreme Court. Sometimes the court “can really screw things up,” Kopf writes at his blog Hercules and the Umpire. As an example, he offers the 2005 U.S. Supreme Court decision in United States v. Booker, which effectively made the federal sentencing guidelines advisory. “If haphazardly injecting chaos into a system is a good thing, the Supreme Court is very good at that,” Kopf writes. But much...
SCOTUS Further Refines Proof Standards For Class Certification
March 29, 2013
On March 27, 2013, the U.S. Supreme Court issued its long-awaited opinion in Comcast Corp. v. Behrend, addressing the quality of proof needed to satisfy Federal Rule of Civil Procedure 23’s rigorous requirements for certifying a class. The federal circuit courts have taken diverse approaches as to whether and under what circumstances an expert’s testimony can be used to satisfy the requirement that common issues predominate. Some have refused to consider expert challenges at the certification...
March 29, 2013
On March 27, 2013, the U.S. Supreme Court issued its long-awaited opinion in Comcast Corp. v. Behrend, addressing the quality of proof needed to satisfy Federal Rule of Civil Procedure 23’s rigorous requirements for certifying a class. The federal circuit courts have taken diverse approaches as to whether and under what circumstances an expert’s testimony can be used to satisfy the requirement that common issues predominate. Some have refused to consider expert challenges at the certification...
