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Three Appellate Courts Remand for Trial on Existence of Agreement to Arbitrate
March 16, 2016
Most questions of arbitrability can be resolved on motion, using a summary judgment-like standard. However, just like summary judgment, if there are genuine disputes of material fact about whether a claim must be arbitrated — like competing evidence about whether the parties ever formed an arbitration agreement — those should be determined by a trial. That is the lesson of three recent cases from the Third Circuit, the Ninth Circuit, and the Supreme Court of Alabama. The two federal...
March 16, 2016
Most questions of arbitrability can be resolved on motion, using a summary judgment-like standard. However, just like summary judgment, if there are genuine disputes of material fact about whether a claim must be arbitrated — like competing evidence about whether the parties ever formed an arbitration agreement — those should be determined by a trial. That is the lesson of three recent cases from the Third Circuit, the Ninth Circuit, and the Supreme Court of Alabama. The two federal...
Trust and Collaboration in the Aftermath of Conflict: The Effects of Contract Structure
March 15, 2016
Leveraging a longitudinal dataset concerning 102 inter-firm disputes, we evaluate the effects of contract structure on trust...
March 15, 2016
Leveraging a longitudinal dataset concerning 102 inter-firm disputes, we evaluate the effects of contract structure on trust...
Google AI Beats South Korean Go Professional 4-1
March 15, 2016
Google's artificial intelligence (AI) program on Tuesday beat South Korean professional Lee Sedol in the ancient board game...
March 15, 2016
Google's artificial intelligence (AI) program on Tuesday beat South Korean professional Lee Sedol in the ancient board game...
Fourth Circuit Holds Arbitration Agreement May Not Waive All Federal Statutory Rights
March 15, 2016
This week, the Fourth Circuit found an arbitration agreement invalid because it waived all federal and state laws. Although two other federal circuit courts had already found the same company’s arbitration agreement unenforceable because it called for an impossible arbitration process, the Fourth Circuit found it invalid for a new reason. The issue in Hayes v. Delbert Services Corp., __ F.3d___, 2016 WL 386016 (4th Cir. Feb. 2, 2016), was whether a putative class of plaintiffs could assert...
March 15, 2016
This week, the Fourth Circuit found an arbitration agreement invalid because it waived all federal and state laws. Although two other federal circuit courts had already found the same company’s arbitration agreement unenforceable because it called for an impossible arbitration process, the Fourth Circuit found it invalid for a new reason. The issue in Hayes v. Delbert Services Corp., __ F.3d___, 2016 WL 386016 (4th Cir. Feb. 2, 2016), was whether a putative class of plaintiffs could assert...
Four Villains of Decision Making
March 14, 2016
I’ve been reading the latest book by Dan Heath and Chip Heath, Decisive. (They have written two other great books: Made to Stick and Switch.) Many great insights are offered in this book that pertain to decision making and also applicable to how we resolve disputes. I’ll focus on the importance of choosing a good process. Excerpts from Decisive are in quotations. Decisive identifies “four villains of decision making” – narrow framing, confirmation bias, short-term emotion and overconfidence,...
March 14, 2016
I’ve been reading the latest book by Dan Heath and Chip Heath, Decisive. (They have written two other great books: Made to Stick and Switch.) Many great insights are offered in this book that pertain to decision making and also applicable to how we resolve disputes. I’ll focus on the importance of choosing a good process. Excerpts from Decisive are in quotations. Decisive identifies “four villains of decision making” – narrow framing, confirmation bias, short-term emotion and overconfidence,...
New Case On Nursing Home Arbitration Agreements In California
March 14, 2016
In 2012, Marjorie Fitzpatrick entered an assisted living center due to her advancing dementia and was sign in by her daughter Valerie acting as her mothers representative. However, in 2013, Marjorie suffered a fall outside the facility while unsupervised and was left on the ground for over half an hour and suffered numerous injuries which contributed to her death. Valerie, acting as a representative of Marjorie's estate, filed suit for wrongful death but the facility argued that Valerie and the estate...
March 14, 2016
In 2012, Marjorie Fitzpatrick entered an assisted living center due to her advancing dementia and was sign in by her daughter Valerie acting as her mothers representative. However, in 2013, Marjorie suffered a fall outside the facility while unsupervised and was left on the ground for over half an hour and suffered numerous injuries which contributed to her death. Valerie, acting as a representative of Marjorie's estate, filed suit for wrongful death but the facility argued that Valerie and the estate...
Baker on Aggregate Settlements and Attorney Liability
March 14, 2016
Lynn Baker has posted to SSRN Aggregate Settlements and Attorney Liability: The Evolving Landscape. The abstract provides: This Article was prepared for the Hofstra Law Review conference on "Lawyers as Targets: Suing, Prosecuting, and Defending Lawyers." Over the past several decades, attorneys involved in mass tort settlements, especially those representing the plaintiffs, have faced an increasing number of large-dollar liability claims centered on the aggregate settlement rule: that is, the state...
March 14, 2016
Lynn Baker has posted to SSRN Aggregate Settlements and Attorney Liability: The Evolving Landscape. The abstract provides: This Article was prepared for the Hofstra Law Review conference on "Lawyers as Targets: Suing, Prosecuting, and Defending Lawyers." Over the past several decades, attorneys involved in mass tort settlements, especially those representing the plaintiffs, have faced an increasing number of large-dollar liability claims centered on the aggregate settlement rule: that is, the state...
ABA House Approves Model Regulatory Objectives for Nontraditional Legal Services
March 13, 2016
After extended and heated debate Monday, the ABA adopted a resolution that would guide states in their regulation of nontraditional legal services. Resolution 105 provides model regulatory objectives for state regulators considering how to regulate nontraditional legal service providers. These providers include online startup businesses and corporations, but also practitioners like the limited license legal technicians recently authorized in the state of Washington. The heart of the debate was over...
March 13, 2016
After extended and heated debate Monday, the ABA adopted a resolution that would guide states in their regulation of nontraditional legal services. Resolution 105 provides model regulatory objectives for state regulators considering how to regulate nontraditional legal service providers. These providers include online startup businesses and corporations, but also practitioners like the limited license legal technicians recently authorized in the state of Washington. The heart of the debate was over...
Measuring the Complexity of the Law: The United States Code
March 13, 2016
Einstein’s razor, a corollary of Ockham’s razor, is often paraphrased as follows: make everything as simple as possible, but not simpler. This rule of thumb describes the challenge that designers of a legal system face — to craft simple laws that produce desired ends, but not to pursue simplicity so far as to undermine those ends. Complexity, simplicity’s inverse, taxes cognition and increases the likelihood of suboptimal decisions. In addition, unnecessary legal complexity can drive a misallocation...
March 13, 2016
Einstein’s razor, a corollary of Ockham’s razor, is often paraphrased as follows: make everything as simple as possible, but not simpler. This rule of thumb describes the challenge that designers of a legal system face — to craft simple laws that produce desired ends, but not to pursue simplicity so far as to undermine those ends. Complexity, simplicity’s inverse, taxes cognition and increases the likelihood of suboptimal decisions. In addition, unnecessary legal complexity can drive a misallocation...
IBM’s Watson Can Sense Sadness in Your Writing
March 13, 2016
The AI just got a big emotion-detecting upgrade. Artificial intelligence won't be truly convincing until it can understand emotions. What good is a robot that can't understand the nuances of what you're really saying? IBM thinks it can help, though. It just gave Watson an upgrade that includes a much-improved Tone Analyzer. The AI now detects a wide range of emotions in your writing, including joy or sadness. If you tell everyone that you're fine when you're really down in the dumps, Watson should...
March 13, 2016
The AI just got a big emotion-detecting upgrade. Artificial intelligence won't be truly convincing until it can understand emotions. What good is a robot that can't understand the nuances of what you're really saying? IBM thinks it can help, though. It just gave Watson an upgrade that includes a much-improved Tone Analyzer. The AI now detects a wide range of emotions in your writing, including joy or sadness. If you tell everyone that you're fine when you're really down in the dumps, Watson should...
