Arbitration
What the Numbers Tell Us About How State Courts Apply the Unconscionability Doctrine to Arbitration Agreements
August 21, 2014
Susan Landrum, Director of the Office of Academic Achievement at the Savannah Law School, has published Much Ado About Nothing?: What the Numbers Tell Us About How State Courts Apply the Unconscionability Doctrine to Arbitration Agreements, Marquette Law Review, Vol. 97, No. 3, 2014. In her article, Ms. Landrum examines how courts in 20 states applied the unconscionability doctrine to arbitration and other contracts over a 22-year time period. Here is the abstract: This Article evaluates how state...
August 21, 2014
Susan Landrum, Director of the Office of Academic Achievement at the Savannah Law School, has published Much Ado About Nothing?: What the Numbers Tell Us About How State Courts Apply the Unconscionability Doctrine to Arbitration Agreements, Marquette Law Review, Vol. 97, No. 3, 2014. In her article, Ms. Landrum examines how courts in 20 states applied the unconscionability doctrine to arbitration and other contracts over a 22-year time period. Here is the abstract: This Article evaluates how state...
Employees Signed Arbitration Agreements? Are You Sure?
August 20, 2014
Employer arbitration agreements have been in the news recently, but here’s one you may not have seen coming, for simplicity’s sake alone: “Court requires proof employees signed arbitration agreement to compel arbitration.” This comes from Foley & Lardner’s Rebecca Hanson, who writes about a recent federal court decision on the Labor and Employment Law Perspectives blog. “Employers cannot rely on general policies requiring employees to sign such agreements to compel arbitration if the employees...
August 20, 2014
Employer arbitration agreements have been in the news recently, but here’s one you may not have seen coming, for simplicity’s sake alone: “Court requires proof employees signed arbitration agreement to compel arbitration.” This comes from Foley & Lardner’s Rebecca Hanson, who writes about a recent federal court decision on the Labor and Employment Law Perspectives blog. “Employers cannot rely on general policies requiring employees to sign such agreements to compel arbitration if the employees...
Fifth Circuit Sends Case to Arbitration 2 1/2 Years After Litigation Begins
August 20, 2014
In Al Rushaid v. Nat'l Oilwell Varco, Inc., plaintiffs sued eight entities for breach of contract. The District Court found that the disputed contracts could result in damages in the hundreds of millions of dollars. Discovery would have to take place on several continents. Accordingly, although plaintiffs served all defendants except National Oilwell Varco Norway (NOV Norway) in August 2011, the District Court set a trial date in June 2013. In August 2012, plaintiffs served NOV Norway, which...
August 20, 2014
In Al Rushaid v. Nat'l Oilwell Varco, Inc., plaintiffs sued eight entities for breach of contract. The District Court found that the disputed contracts could result in damages in the hundreds of millions of dollars. Discovery would have to take place on several continents. Accordingly, although plaintiffs served all defendants except National Oilwell Varco Norway (NOV Norway) in August 2011, the District Court set a trial date in June 2013. In August 2012, plaintiffs served NOV Norway, which...
What We Consent to When We Consent to Form Contracts: Market Price
August 19, 2014
Contracts require consent, yet no one reads form contracts. So what do we consent to when we consent to form contracts? Scholarly answers to this question range from “we consent to everything but the radically unexpected” to “we consent to nothing but the specifically negotiated.” This essay offers a new answer: when we consent to form contracts we consent to pay market price. Part I of this essay discusses Randy Barnett’s argument that consent to form contracts is consent to be legally...
August 19, 2014
Contracts require consent, yet no one reads form contracts. So what do we consent to when we consent to form contracts? Scholarly answers to this question range from “we consent to everything but the radically unexpected” to “we consent to nothing but the specifically negotiated.” This essay offers a new answer: when we consent to form contracts we consent to pay market price. Part I of this essay discusses Randy Barnett’s argument that consent to form contracts is consent to be legally...
Not Everything Is Arbitrable Says 2-1 Majority of the Fifth Circuit
August 18, 2014
In 2002, Shirley Douglas opened a checking account with Union Planters Bank. In connection with that account, which she closed in 2003, Ms. Douglas signed a signature card that provided for binding arbitration and delegated the issue of arbitrability to the arbiter. That bank merged into Regions Bank (Regions) in 2005. In 2007, Ms. Douglas was injured in a car accident. She alleges that her attorney embezzled her $500,000 settlement, and she sued Regions and another bank at which the attorney...
August 18, 2014
In 2002, Shirley Douglas opened a checking account with Union Planters Bank. In connection with that account, which she closed in 2003, Ms. Douglas signed a signature card that provided for binding arbitration and delegated the issue of arbitrability to the arbiter. That bank merged into Regions Bank (Regions) in 2005. In 2007, Ms. Douglas was injured in a car accident. She alleges that her attorney embezzled her $500,000 settlement, and she sued Regions and another bank at which the attorney...
A Psychological Account of Consent to Fine Print
August 18, 2014
The moral and social norms that bear on contracts of adhesion suggest a deep ambivalence. Contracts are perceived as serious moral obligations, and yet they must be taken lightly or everyday commerce would be impossible. Most people see consent to boilerplate as less meaningful than consent to negotiated terms, but they nonetheless would hold consumers strictly liable for both. This Essay aims to unpack the beliefs, preferences, assumptions, and biases that constitute our assessments of assent to boilerplate....
August 18, 2014
The moral and social norms that bear on contracts of adhesion suggest a deep ambivalence. Contracts are perceived as serious moral obligations, and yet they must be taken lightly or everyday commerce would be impossible. Most people see consent to boilerplate as less meaningful than consent to negotiated terms, but they nonetheless would hold consumers strictly liable for both. This Essay aims to unpack the beliefs, preferences, assumptions, and biases that constitute our assessments of assent to boilerplate....
Ending Class Actions as We Know Them: Rethinking the American Class Action
August 15, 2014
Class actions have been a feature of the American litigation landscape for over 75 years. For most of this period, American-style class litigation was either unknown or resisted around the world. Notwithstanding this chilly reception abroad, American class litigation has always been a central feature of American procedural exceptionalism, nurtured on an idealized historical narrative of the class action device. Although this romantic narrative endures, the experience of the past twenty-five years...
August 15, 2014
Class actions have been a feature of the American litigation landscape for over 75 years. For most of this period, American-style class litigation was either unknown or resisted around the world. Notwithstanding this chilly reception abroad, American class litigation has always been a central feature of American procedural exceptionalism, nurtured on an idealized historical narrative of the class action device. Although this romantic narrative endures, the experience of the past twenty-five years...
New York is Top Choice for Arbitration in the US
August 14, 2014
New statistics reveal that New York is the top place for arbitration within the US, attracting almost three times as many arbitrations as Miami which was second. The findings were in the 2013 statistical report of the International Court of Arbitration of the International Chamber of Commerce (ICC) which revealed that the ICC registered 767 new cases in 2013. Of these, 22.8 per cent involved parties in the Americas, US parties were involved in 8.2 per cent of all ICC arbitrations in 2013. The city...
August 14, 2014
New statistics reveal that New York is the top place for arbitration within the US, attracting almost three times as many arbitrations as Miami which was second. The findings were in the 2013 statistical report of the International Court of Arbitration of the International Chamber of Commerce (ICC) which revealed that the ICC registered 767 new cases in 2013. Of these, 22.8 per cent involved parties in the Americas, US parties were involved in 8.2 per cent of all ICC arbitrations in 2013. The city...
FAA Preemption After Concepcion
August 14, 2014
AT&T Mobility LLC v. Concepcion is an important case for its holding that the FAA preempts application of state unconscionability doctrine to invalidate an arbitration clause with a class arbitration waiver. But in a number of respects, the effect of Concepcion has been overstated, including its effect on application of state unconscionability doctrine to arbitration clauses. Concepcion does not preempt all or even most state unconscionability doctrine as applied to arbitration agreements. Properly...
August 14, 2014
AT&T Mobility LLC v. Concepcion is an important case for its holding that the FAA preempts application of state unconscionability doctrine to invalidate an arbitration clause with a class arbitration waiver. But in a number of respects, the effect of Concepcion has been overstated, including its effect on application of state unconscionability doctrine to arbitration clauses. Concepcion does not preempt all or even most state unconscionability doctrine as applied to arbitration agreements. Properly...
College of Commercial Arbitrators (CCA) / Straus Institute for Dispute Resolution Survey on Arbitration Practice (Fall 2013)
August 14, 2014
The CCA-Straus Institute Survey on Arbitration Practice, one of the Straus Institute’s three recent surveys under the Theory-to-Practice Research Project, consisted of 65 multiple-choice and short-answer questions on respondents’ arbitration experiences and opinions on arbitration practices and the future of the arbitration field-at-large. The Survey asked questions pertaining to both “domestic” (defined in the Survey as “in the U.S. between U.S. parties”) and “international” (all...
August 14, 2014
The CCA-Straus Institute Survey on Arbitration Practice, one of the Straus Institute’s three recent surveys under the Theory-to-Practice Research Project, consisted of 65 multiple-choice and short-answer questions on respondents’ arbitration experiences and opinions on arbitration practices and the future of the arbitration field-at-large. The Survey asked questions pertaining to both “domestic” (defined in the Survey as “in the U.S. between U.S. parties”) and “international” (all...
