News
Opening Offers in Mediation
February 20, 2014
An article by Donalee Moulton in the January 24th issue of The Lawyers Weekly entitled, “Opening offers can make or break a deal” caught my attention and caused me to reflect on my own experience from approximately 3,000 mediations conducted over the past 22 years. I urge readers to look a the Lawyers Weekly article as well as some of the other web resources on this topic including this posting by Matthew Rushton and this by the Hon. Jay C. Gandhi. Much of the advice boils down to, “don’t...
February 20, 2014
An article by Donalee Moulton in the January 24th issue of The Lawyers Weekly entitled, “Opening offers can make or break a deal” caught my attention and caused me to reflect on my own experience from approximately 3,000 mediations conducted over the past 22 years. I urge readers to look a the Lawyers Weekly article as well as some of the other web resources on this topic including this posting by Matthew Rushton and this by the Hon. Jay C. Gandhi. Much of the advice boils down to, “don’t...
Motion to Compel Arbitration Denied as to Non-Signatories to Agreement
February 20, 2014
In a recent case involving an unsuccessful aquatic ecosystem restoration project in Clearwater, Florida, the Middle District of Florida applied the Federal Arbitration Act to resolve an arbitrability dispute, which involved a marine and dredging construction company, its performance bond sureties, and a dredging contractor. First granting a motion to compel arbitration with respect to the construction company and the contractor, both of which had signed the arbitration agreement, the court then reviewed...
February 20, 2014
In a recent case involving an unsuccessful aquatic ecosystem restoration project in Clearwater, Florida, the Middle District of Florida applied the Federal Arbitration Act to resolve an arbitrability dispute, which involved a marine and dredging construction company, its performance bond sureties, and a dredging contractor. First granting a motion to compel arbitration with respect to the construction company and the contractor, both of which had signed the arbitration agreement, the court then reviewed...
James Surowiecki: The Costs of Working Too Much : The New Yorker
February 19, 2014
For decades, junior bankers and Wall Street firms had an unspoken pact: in exchange for reasonably high-paying jobs and a shot at obscene wealth, young analysts agreed to work fifteen hours a day, and forgo anything resembling a normal life. But things may be changing. Last October, Goldman Sachs told its junior investment-banking analysts not to work on Saturdays, and it has said that all analysts, on average, should be working no more than seventy to seventy-five hours a week. A couple of weeks...
February 19, 2014
For decades, junior bankers and Wall Street firms had an unspoken pact: in exchange for reasonably high-paying jobs and a shot at obscene wealth, young analysts agreed to work fifteen hours a day, and forgo anything resembling a normal life. But things may be changing. Last October, Goldman Sachs told its junior investment-banking analysts not to work on Saturdays, and it has said that all analysts, on average, should be working no more than seventy to seventy-five hours a week. A couple of weeks...
Michelle Lee: USPTO to Push Administration Goals in both Prosecution and Litigation
February 19, 2014
From Michelle Lee who is Deputy Under Secretary of Commerce for Intellectual Property; Deputy Director of the USPTO; and is de Facto Director of the USPTO. [Link] Over the last five years . . . the agency’s senior leadership has made good progress to ensure our country has a strong and robust patent and trademark system for the 21st century. . . . Going forward, the USPTO will continue to actively engage with our stakeholders, members of Congress from both political parties, as well as with...
February 19, 2014
From Michelle Lee who is Deputy Under Secretary of Commerce for Intellectual Property; Deputy Director of the USPTO; and is de Facto Director of the USPTO. [Link] Over the last five years . . . the agency’s senior leadership has made good progress to ensure our country has a strong and robust patent and trademark system for the 21st century. . . . Going forward, the USPTO will continue to actively engage with our stakeholders, members of Congress from both political parties, as well as with...
New Issue of The Journal of Dispute Resolution is Devoted to Teaching Practical Legal Skills
February 19, 2014
The Journal of Dispute Resolution is a student-edited, academic journal published semi-annually by the University of Missouri-Columbia School of Law in conjunction with the Center for the Study of Dispute Resolution. The latest issue, 2013 Vol. 1, is entitled Overcoming Barriers in Preparing Law Students for Real-World Practice" and contains several very informative and helpful articles devoted to the teaching of practical legal skills training published in connection with a 2012 symposium...
February 19, 2014
The Journal of Dispute Resolution is a student-edited, academic journal published semi-annually by the University of Missouri-Columbia School of Law in conjunction with the Center for the Study of Dispute Resolution. The latest issue, 2013 Vol. 1, is entitled Overcoming Barriers in Preparing Law Students for Real-World Practice" and contains several very informative and helpful articles devoted to the teaching of practical legal skills training published in connection with a 2012 symposium...
Meditating on Those Sunk Costs
February 19, 2014
The sunk-cost fallacy leads to all sorts of poor decision-making — like staying too long at a bad job or refusing to drop out of a hopeless mayoral campaign. Here’s how Dubner explained it in our podcast on quitting: A “sunk cost” is just what it sounds like: time or money you’ve already spent. The sunk-cost fallacy is when you tell yourself that you can’t quit because of all that time or money you spent. We shouldn’t fall for this fallacy, but we do it all the time. But there’s...
February 19, 2014
The sunk-cost fallacy leads to all sorts of poor decision-making — like staying too long at a bad job or refusing to drop out of a hopeless mayoral campaign. Here’s how Dubner explained it in our podcast on quitting: A “sunk cost” is just what it sounds like: time or money you’ve already spent. The sunk-cost fallacy is when you tell yourself that you can’t quit because of all that time or money you spent. We shouldn’t fall for this fallacy, but we do it all the time. But there’s...
Waiver of Right to Arbitrate is Issue for Courts, Not Arbitrators
February 19, 2014
A California appellate court has confirmed that the issue of whether a party has waived the right to arbitrate is an issue to be decided by the trial court, not the arbitrator. Defendants in a dispute regarding a stock purchase agreement moved to compel arbitration pursuant to that agreement, but only after they filed a demurrer to the complaint, moved to require plaintiffs to furnish a bond, and commenced their own lawsuit against plaintiffs for alleged misrepresentations made in connection with...
February 19, 2014
A California appellate court has confirmed that the issue of whether a party has waived the right to arbitrate is an issue to be decided by the trial court, not the arbitrator. Defendants in a dispute regarding a stock purchase agreement moved to compel arbitration pursuant to that agreement, but only after they filed a demurrer to the complaint, moved to require plaintiffs to furnish a bond, and commenced their own lawsuit against plaintiffs for alleged misrepresentations made in connection with...
Burnham on Contracting Around Negligence
February 18, 2014
Scott J. Burnham (Gonzaga University School of Law) has posted Are You Free to Contract Away Your Right to Bring a Negligence Claim?(Chicago-Kent Law Review, Vol. 89, p. 379, 2014) on SSRN. Here is the abstract: This article explores the enforceability of the exculpatory clause -- a contract term in which one party agrees to give up the right to bring a negligence claim against the other party. A spectrum of views on whether a contract containing such a clause is aberrant or not is presented and analyzed,...
February 18, 2014
Scott J. Burnham (Gonzaga University School of Law) has posted Are You Free to Contract Away Your Right to Bring a Negligence Claim?(Chicago-Kent Law Review, Vol. 89, p. 379, 2014) on SSRN. Here is the abstract: This article explores the enforceability of the exculpatory clause -- a contract term in which one party agrees to give up the right to bring a negligence claim against the other party. A spectrum of views on whether a contract containing such a clause is aberrant or not is presented and analyzed,...
Incorporating Arbitration Agreements By Reference: the Key is Reasonable Notice
February 18, 2014
In recent months, three federal circuit courts have confronted this question: can a defendant compel arbitration even in the absence of a signed written agreement containing an arbitration clause? The answers were yes, no, and maybe, but the analysis in all three turns on whether the party resisting arbitration should reasonably have known that an arbitration clause was part of the deal.
February 18, 2014
In recent months, three federal circuit courts have confronted this question: can a defendant compel arbitration even in the absence of a signed written agreement containing an arbitration clause? The answers were yes, no, and maybe, but the analysis in all three turns on whether the party resisting arbitration should reasonably have known that an arbitration clause was part of the deal.
Testing Whether Judges Follow The Law
February 18, 2014
In Do Judges Follow the Law? An Empirical Test of Congressional Control Over Judicial Behavior, Todd Henderson and William Hubbard (Chicago) set out to empirically test the naive model of judging which predicts that judges will follow unambiguous laws. To do so, the paper levers the Securities Exchange Act 21D, which requires courts to certify that attorneys complied with Rule 11(b)'s prohibition against frivolous claims. To test the model, the authors eschew the standard data source -- Westlaw...
February 18, 2014
In Do Judges Follow the Law? An Empirical Test of Congressional Control Over Judicial Behavior, Todd Henderson and William Hubbard (Chicago) set out to empirically test the naive model of judging which predicts that judges will follow unambiguous laws. To do so, the paper levers the Securities Exchange Act 21D, which requires courts to certify that attorneys complied with Rule 11(b)'s prohibition against frivolous claims. To test the model, the authors eschew the standard data source -- Westlaw...
