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Total Recall
October 3, 2018
Mediators need to remember stuff – lots of stuff. Sure, it helps to have a flush mentality – as my very first, and now long gone, boss used to tell me. Mr. Dalgety would come back to the office after a hearing, raise his hand beside his head and pull an imaginary chain before moving to his next case. Likewise for the duration of a mediation, especially on mediation day, successful mediators need to hold, and retrieve, large amounts of data. Our ability to take in information, store...
October 3, 2018
Mediators need to remember stuff – lots of stuff. Sure, it helps to have a flush mentality – as my very first, and now long gone, boss used to tell me. Mr. Dalgety would come back to the office after a hearing, raise his hand beside his head and pull an imaginary chain before moving to his next case. Likewise for the duration of a mediation, especially on mediation day, successful mediators need to hold, and retrieve, large amounts of data. Our ability to take in information, store...
Time-on-the-Risk Allocation: Are Periods when Coverage is Unavailable in the Market Part of the Time-on-the-Risk?
October 2, 2018
We’ve discussed various issues concerning the allocation of asbestos or hazardous waste claims by insurers or cedents in situations where losses occur in multiple policy periods over time. (See here, here, & here.) Issues relating to allocation of such claims have, for many years, arisen in both insurance coverage cases and reinsurance litigation and arbitration, and they still do. Earlier this year in Keyspan Gas East Corp. v. Munich Reins. Am., Inc., ___ N.Y.3d ___, N.Y. Slip Op. 2116...
October 2, 2018
We’ve discussed various issues concerning the allocation of asbestos or hazardous waste claims by insurers or cedents in situations where losses occur in multiple policy periods over time. (See here, here, & here.) Issues relating to allocation of such claims have, for many years, arisen in both insurance coverage cases and reinsurance litigation and arbitration, and they still do. Earlier this year in Keyspan Gas East Corp. v. Munich Reins. Am., Inc., ___ N.Y.3d ___, N.Y. Slip Op. 2116...
Circuit Split Deepens Over Whether Arbitrators Should Decide Availability of Class Action
October 2, 2018
Today’s post concerns a perennially hot topic: class actions. In particular, do courts decide whether an arbitration...
October 2, 2018
Today’s post concerns a perennially hot topic: class actions. In particular, do courts decide whether an arbitration...
Daniel Kahneman on the Marvels and Flaws of Our Human Intuition
October 1, 2018
A psychologist by training, Kahneman has never taken a course in economics; yet he was awarded the Nobel Prize in Economics in 2002. How did that happen? He says his work came about from two conversations. His late colleague Amos Tversky showed him a paper called “The Psychological Assumptions of Economics,” which posited that the agent of economic theory is rational, selfish, and with tastes that do not change. To a psychologist, Kahneman said, this is astonishing. The notion that our beliefs...
October 1, 2018
A psychologist by training, Kahneman has never taken a course in economics; yet he was awarded the Nobel Prize in Economics in 2002. How did that happen? He says his work came about from two conversations. His late colleague Amos Tversky showed him a paper called “The Psychological Assumptions of Economics,” which posited that the agent of economic theory is rational, selfish, and with tastes that do not change. To a psychologist, Kahneman said, this is astonishing. The notion that our beliefs...
ND Texas in Dallas Confirms $141 Million Arbitration Award in Software Dispute
October 1, 2018
The Northern District of Texas has accepted the findings and recommendations of a magistrate judge and confirmed an arbitration award of more than $141 million in a software licensing dispute. In Kemper Corp. Svcs., Inc. v. Computer Sciences Corp. and DXC Tech. Co., No. 3:17-CV-2769-S (N.D. Tex., September 18, 2018), an insurance company, Kemper, entered into a multi-year contract to license software from Computer Sciences Corporation (“CSC”) in 2009. As part of the contract, CSC agreed...
October 1, 2018
The Northern District of Texas has accepted the findings and recommendations of a magistrate judge and confirmed an arbitration award of more than $141 million in a software licensing dispute. In Kemper Corp. Svcs., Inc. v. Computer Sciences Corp. and DXC Tech. Co., No. 3:17-CV-2769-S (N.D. Tex., September 18, 2018), an insurance company, Kemper, entered into a multi-year contract to license software from Computer Sciences Corporation (“CSC”) in 2009. As part of the contract, CSC agreed...
Walmart Uses IBM Blockchain to Track Spinach and Lettuce!
September 30, 2018
The New York Times reported that Walmart announced “After a two-year pilot project, …that it would be using a blockchain,...
September 30, 2018
The New York Times reported that Walmart announced “After a two-year pilot project, …that it would be using a blockchain,...
The Future of Jobs 2018
September 29, 2018
As technological breakthroughs rapidly shift the frontier between the work tasks performed by humans and those performed by machines and algorithms, global labour markets are likely to undergo major transformations. These transformations, if managed wisely, could lead to a new age of good work, good jobs and improved quality of life for all, but if managed poorly, pose the risk of widening skills gaps, greater inequality and broader polarization. In many ways, the time to shape the future of work...
September 29, 2018
As technological breakthroughs rapidly shift the frontier between the work tasks performed by humans and those performed by machines and algorithms, global labour markets are likely to undergo major transformations. These transformations, if managed wisely, could lead to a new age of good work, good jobs and improved quality of life for all, but if managed poorly, pose the risk of widening skills gaps, greater inequality and broader polarization. In many ways, the time to shape the future of work...
Proposed Legislation Would Eliminate PACER Fees
September 29, 2018
A new bill before the U.S House of Representatives would prohibit the federal courts from charging for public documents. The Electronic Court Records Reform Act would require that documents downloaded from the PACER database be free. Currently, the repository for federal court documents charges up to 10 cents a page. “Americans deserve a justice system that is transparent and accessible,” said Republican Rep. Doug Collins of Georgia, the bill’s sponsor, in a statement on Sept. 6. “I...
September 29, 2018
A new bill before the U.S House of Representatives would prohibit the federal courts from charging for public documents. The Electronic Court Records Reform Act would require that documents downloaded from the PACER database be free. Currently, the repository for federal court documents charges up to 10 cents a page. “Americans deserve a justice system that is transparent and accessible,” said Republican Rep. Doug Collins of Georgia, the bill’s sponsor, in a statement on Sept. 6. “I...
The Politics of Selecting Chevron Deference
September 28, 2018
In this article, we examine an important threshold question in judicial behavior and administrative law: When do federal circuit courts decide to use the Chevron deference framework and when do they select a framework that is less deferential to the administrative agency's statutory interpretation? The question is important because the purpose of Chevron deference is to give agencies—not judges—policy‐making space within statutory interpretation. We expect, nonetheless, that whether to invoke...
September 28, 2018
In this article, we examine an important threshold question in judicial behavior and administrative law: When do federal circuit courts decide to use the Chevron deference framework and when do they select a framework that is less deferential to the administrative agency's statutory interpretation? The question is important because the purpose of Chevron deference is to give agencies—not judges—policy‐making space within statutory interpretation. We expect, nonetheless, that whether to invoke...
California Supreme Court Addresses Public Policy/Illegality Defense to Arbitration
September 28, 2018
Like federal law, California state arbitration law generally recognizes the separability doctrine, whereby arbitration clauses are viewed as separate from the rest of a contract and not necessarily impacted by defects in the larger contract containing the arbitration clause. For example, general allegations of fraudulent inducement with respect to the larger contract do not invalidate the obligation to arbitrate and are decided by an arbitrator. It’s as if the arbitration clause has some immunity,...
September 28, 2018
Like federal law, California state arbitration law generally recognizes the separability doctrine, whereby arbitration clauses are viewed as separate from the rest of a contract and not necessarily impacted by defects in the larger contract containing the arbitration clause. For example, general allegations of fraudulent inducement with respect to the larger contract do not invalidate the obligation to arbitrate and are decided by an arbitrator. It’s as if the arbitration clause has some immunity,...
