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Personalizing Negligence Law
October 22, 2015
The most fundamental feature of negligence law is the "reasonable person" standard. This feature bases negligence law on a strictly objective foundation: it requires people to behave in the prudent way that, as Holmes explained, the ordinary, typical member of their community observes. In this Article we argue that with the increasing availability of information about actors' characteristics, negligence law should give up much of its objectivity by allowing courts to "subjectify" the standard of care...
October 22, 2015
The most fundamental feature of negligence law is the "reasonable person" standard. This feature bases negligence law on a strictly objective foundation: it requires people to behave in the prudent way that, as Holmes explained, the ordinary, typical member of their community observes. In this Article we argue that with the increasing availability of information about actors' characteristics, negligence law should give up much of its objectivity by allowing courts to "subjectify" the standard of care...
SCOTUS Continues to Wrestle with Post-Concepcion Fallout
October 22, 2015
In DIRECTV, Inc. v. Inburgia, SCOTUS is addressing the enforceability of an arbitration clause with a class-action waiver. The clause provides that the entire arbitration clause is invalid if state law prohibits class action waivers. At the time the agreement was written, California law clearly prohibited class action waivers. SCOTUS subsequently ruled that California's law must yield to the Federal Arbitration Act. According to the SCOTUSblog entry on the case, the issue in the case is "Whether...
October 22, 2015
In DIRECTV, Inc. v. Inburgia, SCOTUS is addressing the enforceability of an arbitration clause with a class-action waiver. The clause provides that the entire arbitration clause is invalid if state law prohibits class action waivers. At the time the agreement was written, California law clearly prohibited class action waivers. SCOTUS subsequently ruled that California's law must yield to the Federal Arbitration Act. According to the SCOTUSblog entry on the case, the issue in the case is "Whether...
Neurotic People Have A Surprising Mental Advantage
October 21, 2015
Over-thinking worriers enjoy this unexpected psychological advantage. High levels of creativity may go hand-in-hand with neuroticism, a new study finds. It’s because the area of the brain which is linked to creativity also has the tendency to over-think things and worry. Neuroticism is characterised by negative thinking in a range of areas (take the neuroticism test here). For a long time neurotic people were thought to have a heightened perception to threat.
October 21, 2015
Over-thinking worriers enjoy this unexpected psychological advantage. High levels of creativity may go hand-in-hand with neuroticism, a new study finds. It’s because the area of the brain which is linked to creativity also has the tendency to over-think things and worry. Neuroticism is characterised by negative thinking in a range of areas (take the neuroticism test here). For a long time neurotic people were thought to have a heightened perception to threat.
The Upside of Anger
October 21, 2015
In most disputes, when people get angry- it is a bad sign! It usually means that the dispute will NOT get resolved, and that one or the other party will leave in a huff. Indeed, neuroscience teaches us that when the emotional side of our brain (right brain) is operating in full force, there is absolutely no way that we can think deliberately or rationally (?). Our left brain is being overpowered by right brain. So, does this mean that anger and resolving disputes simply do not mix? Not necessarily!...
October 21, 2015
In most disputes, when people get angry- it is a bad sign! It usually means that the dispute will NOT get resolved, and that one or the other party will leave in a huff. Indeed, neuroscience teaches us that when the emotional side of our brain (right brain) is operating in full force, there is absolutely no way that we can think deliberately or rationally (?). Our left brain is being overpowered by right brain. So, does this mean that anger and resolving disputes simply do not mix? Not necessarily!...
Emotions Impact Negotiations in Employment Cases
October 21, 2015
Employment lawsuits can generate very intense emotions by both the plaintiff and defendant. We often measure our value as human beings based on the work we do and the income we earn. When that job is taken away from us, especially under circumstances that we think violate the law, it can generate a lot of anger, even rage, against the former employer. Anger can also result if a manager or business owner feels he or she is wrongly accused of breaking the law and his or her name is being dragged through...
October 21, 2015
Employment lawsuits can generate very intense emotions by both the plaintiff and defendant. We often measure our value as human beings based on the work we do and the income we earn. When that job is taken away from us, especially under circumstances that we think violate the law, it can generate a lot of anger, even rage, against the former employer. Anger can also result if a manager or business owner feels he or she is wrongly accused of breaking the law and his or her name is being dragged through...
A Win for the Patriots scores a Touchdown for Arbitration
October 20, 2015
Judge Berman recognized that the standard for review of arbitral awards under the FAA 9 U.S.C. Section 10 is a deferential one, yet nonetheless he noted that “the deference due an arbitrator does not extend so far as to require a district court to countenance, much less confirm, an award obtained without the requisites of fairness or due process.” Judge Berman focused on numerous instances in the arbitration where Brady was not given a fair hearing, including the fact that Brady was never provided...
October 20, 2015
Judge Berman recognized that the standard for review of arbitral awards under the FAA 9 U.S.C. Section 10 is a deferential one, yet nonetheless he noted that “the deference due an arbitrator does not extend so far as to require a district court to countenance, much less confirm, an award obtained without the requisites of fairness or due process.” Judge Berman focused on numerous instances in the arbitration where Brady was not given a fair hearing, including the fact that Brady was never provided...
What is a Reasoned Award?
October 20, 2015
Experienced Arbitrators and advocates frequently use boilerplate terms without pausing to decide what they actually mean. The undoubtedly unanticipated consequence of such casual usage of the term “reasoned award” was on full display on October 8, when the Houston First Court of Appeals issued its opinion in Stage Stores, Inc. v. Gunnerson, addressing a question of first impression: what is meant by the term “reasoned award” in an arbitration clause and, correspondingly, what must an Arbitrator...
October 20, 2015
Experienced Arbitrators and advocates frequently use boilerplate terms without pausing to decide what they actually mean. The undoubtedly unanticipated consequence of such casual usage of the term “reasoned award” was on full display on October 8, when the Houston First Court of Appeals issued its opinion in Stage Stores, Inc. v. Gunnerson, addressing a question of first impression: what is meant by the term “reasoned award” in an arbitration clause and, correspondingly, what must an Arbitrator...
CFPB Proposal Would Allow Consumers to Forego Arbitration in Favor of Class Litigation
October 20, 2015
The Consumer Financial Protection Bureau (“CFPB”) is reportedly considering implementing new regulations that would stop...
October 20, 2015
The Consumer Financial Protection Bureau (“CFPB”) is reportedly considering implementing new regulations that would stop...
Sternlight: Musings from the CFPB Field Hearing
October 19, 2015
This dispatch comes from frequent guest blogger Jean Sternlight (UNLV). I am writing this blog having just returned from...
October 19, 2015
This dispatch comes from frequent guest blogger Jean Sternlight (UNLV). I am writing this blog having just returned from...
When to Make the First Offer in Negotiation
October 19, 2015
In dealmaking, a certain question often looms large: Should you or shouldn’t you make the first offer? Traditionally, negotiation experts advised us to sit tight and wait for the other side to float the first number. This advice is grounded in the fact that the other party’s offer may shed light on his goals and alternatives and better equip you to meet them. Yet more recent negotiation research on the anchoring effect has added nuance to the conventional wisdom about when to make the first...
October 19, 2015
In dealmaking, a certain question often looms large: Should you or shouldn’t you make the first offer? Traditionally, negotiation experts advised us to sit tight and wait for the other side to float the first number. This advice is grounded in the fact that the other party’s offer may shed light on his goals and alternatives and better equip you to meet them. Yet more recent negotiation research on the anchoring effect has added nuance to the conventional wisdom about when to make the first...
