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Arbitration
SCOTUS Releases October Calendar
July 23, 2017
On October 2, the justices will kick off their term with three arbitration cases, which have been consolidated for one hour of oral argument. In National Labor Relations Board v. Murphy Oil USA, Epic Systems Corp. v. Lewis, and Ernst & Young v. Morris, the justices agreed to decide whether agreements to forgo class actions or collective proceedings and instead resolve disputes between an employer and its employees through arbitration are enforceable under the Federal Arbitration Act. The NLRB...
July 23, 2017
On October 2, the justices will kick off their term with three arbitration cases, which have been consolidated for one hour of oral argument. In National Labor Relations Board v. Murphy Oil USA, Epic Systems Corp. v. Lewis, and Ernst & Young v. Morris, the justices agreed to decide whether agreements to forgo class actions or collective proceedings and instead resolve disputes between an employer and its employees through arbitration are enforceable under the Federal Arbitration Act. The NLRB...
The Paradox of Access Justice, And Its Application to Mandatory Arbitration
July 21, 2017
Access justice is one of the most appealing and least contentious regulatory techniques in law’s repertoire. It aspires...
July 21, 2017
Access justice is one of the most appealing and least contentious regulatory techniques in law’s repertoire. It aspires...
Incompletely Theorized Agreements
July 20, 2017
Well-functioning legal systems often tend to adopt a special strategy for producing agreement amidst pluralism. Participants in legal controversies try to produce incompletely theorized agreements on particular outcomes. They agree on the result and on relatively narrow or low-level explanations for it. They need not agree on fundamental principle. They do not offer larger or more abstract explanations than are necessary to decide the case. When they disagree on an abstraction, they move to a level...
July 20, 2017
Well-functioning legal systems often tend to adopt a special strategy for producing agreement amidst pluralism. Participants in legal controversies try to produce incompletely theorized agreements on particular outcomes. They agree on the result and on relatively narrow or low-level explanations for it. They need not agree on fundamental principle. They do not offer larger or more abstract explanations than are necessary to decide the case. When they disagree on an abstraction, they move to a level...
Marshal Service for Arbitration Awards, Relic or Requirement?
July 20, 2017
So you’ve got an arbitration award, what next? In other types of civil cases, the Federal Rules of Civil Procedure (Rules) control service, and they have greatly reduced the role of U.S. Marshals in serving parties. See Fed. R. Civ. P. 4(c). But enter the Federal Arbitration Act § 9 and § 12 (FAA). When a party seeks to confirm, vacate, or modify an arbitration award, § 9 and § 12 say that a nonresident party must be “served by the marshal of any district within which the adverse party...
July 20, 2017
So you’ve got an arbitration award, what next? In other types of civil cases, the Federal Rules of Civil Procedure (Rules) control service, and they have greatly reduced the role of U.S. Marshals in serving parties. See Fed. R. Civ. P. 4(c). But enter the Federal Arbitration Act § 9 and § 12 (FAA). When a party seeks to confirm, vacate, or modify an arbitration award, § 9 and § 12 say that a nonresident party must be “served by the marshal of any district within which the adverse party...
Preserving the Federal Arbitration Act by Reining in Judicial Expansion and Mandatory Use
July 20, 2017
This Article considers the rationale for arbitration reform, as well as the arguments for no reform at all. Part II sets out the Federal Arbitration Act’s basic framework, and discusses the Supreme Court decisions which have arguably expanded the scope of the FAA and enabled a controversial use of modern arbitration. Part III considers specific proposals warranting congressional attention, including pending legislation under the proposed Arbitration Fairness Act of 2007. Part IV concludes in offering...
July 20, 2017
This Article considers the rationale for arbitration reform, as well as the arguments for no reform at all. Part II sets out the Federal Arbitration Act’s basic framework, and discusses the Supreme Court decisions which have arguably expanded the scope of the FAA and enabled a controversial use of modern arbitration. Part III considers specific proposals warranting congressional attention, including pending legislation under the proposed Arbitration Fairness Act of 2007. Part IV concludes in offering...
New Administration Dismantles More Of Obama Arbitration Regulations
July 12, 2017
It was only a few weeks ago that this blog covered the reversal of the CMS regulation on arbitration in nursing homes....
July 12, 2017
It was only a few weeks ago that this blog covered the reversal of the CMS regulation on arbitration in nursing homes....
CFPB Shows Grit; Issues Rule Curtailing Financial Arbitration
July 11, 2017
The CFPB today issued a consumer-friendly rule that is likely to significantly curtail the use of arbitration in consumer...
July 11, 2017
The CFPB today issued a consumer-friendly rule that is likely to significantly curtail the use of arbitration in consumer...
U.S. Agency Moves to Allow Class-Action Lawsuits Against Financial Firms
July 10, 2017
The nation’s consumer watchdog is adopting a rule on Monday that would pry open the courtroom doors for millions of Americans,...
July 10, 2017
The nation’s consumer watchdog is adopting a rule on Monday that would pry open the courtroom doors for millions of Americans,...
Fifth Circuit COA Vacates Lower Court’s Order Withdrawing Arbitration
July 6, 2017
The nation’s Fifth Circuit Court of Appeals has ordered a discrimination and retaliation lawsuit to arbitration. In Salas v. GE Oil & Gas, No. 16-20379 (5th Cir. May 12, 2017), a man, Gaspar Salas, began working for GE Oil & Gas after the company acquired his former employer. At the time of the acquisition, GE introduced a dispute resolution program requiring workers who continued their employment with the company after November 1, 2013 to abide by the company’s arbitration program. About...
July 6, 2017
The nation’s Fifth Circuit Court of Appeals has ordered a discrimination and retaliation lawsuit to arbitration. In Salas v. GE Oil & Gas, No. 16-20379 (5th Cir. May 12, 2017), a man, Gaspar Salas, began working for GE Oil & Gas after the company acquired his former employer. At the time of the acquisition, GE introduced a dispute resolution program requiring workers who continued their employment with the company after November 1, 2013 to abide by the company’s arbitration program. About...
2017 Arbitration Thoughts
July 5, 2017
Over the years we’ve been building a list to consider when putting together an arbitration provision. A requirement that the case be disposed of within a certain time period. (i.e. 6 months from filing); A limitation on the number of witnesses that can be called, the amount of time each side has to put on their case, basically anything that would set parameters on how long the hearing will take; Statute of Limitations – is a provision necessary that spells out how long a party has to bring...
July 5, 2017
Over the years we’ve been building a list to consider when putting together an arbitration provision. A requirement that the case be disposed of within a certain time period. (i.e. 6 months from filing); A limitation on the number of witnesses that can be called, the amount of time each side has to put on their case, basically anything that would set parameters on how long the hearing will take; Statute of Limitations – is a provision necessary that spells out how long a party has to bring...
