Blog Archives
Biglaw Divided On How To Deal With Technology
April 28, 2017
If one envisions a law firm’s efforts to move boldly into the future as a matter of balancing the triad of people, technology, and process, then the most striking revelation of the event was the lack of uniformity across the industry. Considering the pack mentality of Biglaw firms — consistently terrified to waver from their peers — the firms represented on this day varied greatly in their current focus. The first few firms to offer their thoughts said, unequivocally, that they’re in the market...
April 28, 2017
If one envisions a law firm’s efforts to move boldly into the future as a matter of balancing the triad of people, technology, and process, then the most striking revelation of the event was the lack of uniformity across the industry. Considering the pack mentality of Biglaw firms — consistently terrified to waver from their peers — the firms represented on this day varied greatly in their current focus. The first few firms to offer their thoughts said, unequivocally, that they’re in the market...
From Promise to Form: How Contracting Online Changes Consumers
April 28, 2017
I hypothesize that different experiences with online contracting have led some consumers to see contracts — both online and offline — in distinctive ways. Experimenting on a large, nationally representative, sample, this paper provides evidence of age-based and experience-based differences in views of consumer contract formation and breach. I show that younger subjects who have entered into more online contracts are likelier than older ones to think that contracts can be formed online, that digital...
April 28, 2017
I hypothesize that different experiences with online contracting have led some consumers to see contracts — both online and offline — in distinctive ways. Experimenting on a large, nationally representative, sample, this paper provides evidence of age-based and experience-based differences in views of consumer contract formation and breach. I show that younger subjects who have entered into more online contracts are likelier than older ones to think that contracts can be formed online, that digital...
Confidentiality’s Constitutionality: The Incursion on Judicial Powers to Regulate Party Conduct in Court-Connected Mediation
April 28, 2017
This Article explores the interplay between mediation confidentiality legislation and judicial powers to regulate participant conduct in the pretrial process. Part II describes the role of the court in monitoring parties' conduct in distinct settlement-related processes, such as private settlement negotiations, judicial settlement conferences, court-connected arbitration, and court-connected mediation, as well as the corresponding but varied confidentiality protection accorded these processes. Part...
April 28, 2017
This Article explores the interplay between mediation confidentiality legislation and judicial powers to regulate participant conduct in the pretrial process. Part II describes the role of the court in monitoring parties' conduct in distinct settlement-related processes, such as private settlement negotiations, judicial settlement conferences, court-connected arbitration, and court-connected mediation, as well as the corresponding but varied confidentiality protection accorded these processes. Part...
Whittier Law School Says It Will Shut Down
April 27, 2017
"Trustees of the Whittier Law School said on Wednesday that it would close down, making it the first fully accredited law school in the country to shut at a time when many law schools are struggling amid steep declines in enrollment and tuition income." "The trustees of the school, in Costa Mesa, Calif., said in a statement that they had voted not to enroll new first-year students in the fall but were 'committed to ensuring that students currently enrolled will have an opportunity to complete their...
April 27, 2017
"Trustees of the Whittier Law School said on Wednesday that it would close down, making it the first fully accredited law school in the country to shut at a time when many law schools are struggling amid steep declines in enrollment and tuition income." "The trustees of the school, in Costa Mesa, Calif., said in a statement that they had voted not to enroll new first-year students in the fall but were 'committed to ensuring that students currently enrolled will have an opportunity to complete their...
BATNAs in Negotiation: Common Errors and Three Kinds of ‘No’
April 27, 2017
The best alternative to a negotiated agreement (“BATNA”) concept in negotiation has proven to be immensely useful. In tandem with its value in practice, BATNA has become a wildly successful acronym (with more than14 million Google results). But the initial characterization of this concept in Getting to Yes (Fisher, Ury, and Patton 1991) as well as many later interpretations can be problematic, limiting, and even misleading in several ways, which this article analyzes and illustrates. First, early...
April 27, 2017
The best alternative to a negotiated agreement (“BATNA”) concept in negotiation has proven to be immensely useful. In tandem with its value in practice, BATNA has become a wildly successful acronym (with more than14 million Google results). But the initial characterization of this concept in Getting to Yes (Fisher, Ury, and Patton 1991) as well as many later interpretations can be problematic, limiting, and even misleading in several ways, which this article analyzes and illustrates. First, early...
An Intelligence in Our Image: The Risks of Bias and Errors in Artificial Intelligence
April 27, 2017
Machine learning algorithms and artificial intelligence systems influence many aspects of people's lives: news articles, movies to watch, people to spend time with, access to credit, and even the investment of capital. Algorithms have been empowered to make such decisions and take actions for the sake of efficiency and speed. Despite these gains, there are concerns about the rapid automation of jobs (even such jobs as journalism and radiology). A better understanding of attitudes toward and interactions...
April 27, 2017
Machine learning algorithms and artificial intelligence systems influence many aspects of people's lives: news articles, movies to watch, people to spend time with, access to credit, and even the investment of capital. Algorithms have been empowered to make such decisions and take actions for the sake of efficiency and speed. Despite these gains, there are concerns about the rapid automation of jobs (even such jobs as journalism and radiology). A better understanding of attitudes toward and interactions...
March 2017 Bankruptcy Filings Down 4.7 Percent
April 26, 2017
Bankruptcy filings fell 4.7 percent for the 12-month period ending March 31, 2017, compared with the year ending March 31, 2016, according to statistics released by the Administrative Office of the U.S. Courts. The March 2017 annual bankruptcy filings totaled 794,492, compared with 833,515 cases in the year ending March 2016. The following bankruptcy statistics are available: Business and non-business bankruptcy filings for the 12-month period ending March 31, 2017. (Table F-2, Business and Nonbusiness...
April 26, 2017
Bankruptcy filings fell 4.7 percent for the 12-month period ending March 31, 2017, compared with the year ending March 31, 2016, according to statistics released by the Administrative Office of the U.S. Courts. The March 2017 annual bankruptcy filings totaled 794,492, compared with 833,515 cases in the year ending March 2016. The following bankruptcy statistics are available: Business and non-business bankruptcy filings for the 12-month period ending March 31, 2017. (Table F-2, Business and Nonbusiness...
Commercial Arbitration and Settlement: Empirical Insights into the Roles Arbitrators Play
April 26, 2017
A wide-ranging new Straus Institute for Dispute Resolution Survey of experienced arbitrators, conducted with the cooperation of the College of Commercial Arbitrators, reflects the growing professionalization of commercial arbitration, increasing competition for cases, and many other trends in arbitration practice. It also shows that a grower percentage of arbitrated cases are being settled prior to award or to the start of hearings, and offers a strong rationale for greater emphasis on the role of arbitrators...
April 26, 2017
A wide-ranging new Straus Institute for Dispute Resolution Survey of experienced arbitrators, conducted with the cooperation of the College of Commercial Arbitrators, reflects the growing professionalization of commercial arbitration, increasing competition for cases, and many other trends in arbitration practice. It also shows that a grower percentage of arbitrated cases are being settled prior to award or to the start of hearings, and offers a strong rationale for greater emphasis on the role of arbitrators...
Can Judges Make Reliable Numeric Judgments? Distorted Damages and Skewed Sentences
April 26, 2017
In a series of studies involving over six hundred trial judges in three countries, we demonstrate that trial judges’ civil damage awards and criminal sentences are subject to influences that make them erratic. We found that the presence of misleading numeric reference points (or “anchors”) affected judges’ decisions in a series of hypothetical cases. Specifically, judges imposed shorter sentences when assigning sentences in months rather than in years; awarded higher amounts of compensatory...
April 26, 2017
In a series of studies involving over six hundred trial judges in three countries, we demonstrate that trial judges’ civil damage awards and criminal sentences are subject to influences that make them erratic. We found that the presence of misleading numeric reference points (or “anchors”) affected judges’ decisions in a series of hypothetical cases. Specifically, judges imposed shorter sentences when assigning sentences in months rather than in years; awarded higher amounts of compensatory...
California Invalidates Waiver of Public Injunctive Relief In Consumer Arbitration Clause
April 25, 2017
Now that Justice Gorsuch is confirmed and can take the open seat on the Supreme Court, maybe SCOTUS can move forward on the cases about whether employers can make employees waive their right to class actions in an arbitration agreement. (Btw, here’s a nice SCOTUSblog piece on Gorsuch’s arbitration decisions.) In the meantime, California’s high court has decided a similar arbitration issue that seems likely to be the subject of a future cert petition. In McGill v. Citibank, issued April...
April 25, 2017
Now that Justice Gorsuch is confirmed and can take the open seat on the Supreme Court, maybe SCOTUS can move forward on the cases about whether employers can make employees waive their right to class actions in an arbitration agreement. (Btw, here’s a nice SCOTUSblog piece on Gorsuch’s arbitration decisions.) In the meantime, California’s high court has decided a similar arbitration issue that seems likely to be the subject of a future cert petition. In McGill v. Citibank, issued April...
