Blog Archives
Texas Bar Restricts Non-Lawyer Job Titles
August 16, 2014
Adios, CIOs: The Texas State Bar's Professional Ethics Committee's Opinion 642—which forbids law firms operating in Texas to use the words "officer" or "principal" in job titles of non-lawyer professionals—is generating fury from all corners of the legal industry. Opponents demand that the Bar recant the pronouncement, noting that almost all Big Law firms use the title Chief Information Officer for top technology executives, and that CxO is the dominant nomenclature for top non-lawyer leaders...
August 16, 2014
Adios, CIOs: The Texas State Bar's Professional Ethics Committee's Opinion 642—which forbids law firms operating in Texas to use the words "officer" or "principal" in job titles of non-lawyer professionals—is generating fury from all corners of the legal industry. Opponents demand that the Bar recant the pronouncement, noting that almost all Big Law firms use the title Chief Information Officer for top technology executives, and that CxO is the dominant nomenclature for top non-lawyer leaders...
Boies and Olson Are Challenging Teacher Tenure as a Student Civil-Rights Issue
August 15, 2014
The lawyers who joined to fight California’s ban on gay marriage are united on another issue: the civil-rights implications of teacher tenure. Ted Olson was among the lawyers who challenged teacher tenure laws in California. In a June ruling, a judge found the tenure laws violate students’ right to equal protection under the state constitution. The plaintiffs in Vergara v. California had argued the tenure laws keep ineffective teachers on the job, and these teachers are disproportionately...
August 15, 2014
The lawyers who joined to fight California’s ban on gay marriage are united on another issue: the civil-rights implications of teacher tenure. Ted Olson was among the lawyers who challenged teacher tenure laws in California. In a June ruling, a judge found the tenure laws violate students’ right to equal protection under the state constitution. The plaintiffs in Vergara v. California had argued the tenure laws keep ineffective teachers on the job, and these teachers are disproportionately...
It’s Easier to Prove Retaliation Than Discrimination
August 15, 2014
It often my be too easy or too tempting, but you just cannot retaliate against employees who complain about the company. Unfortunately, a Tennessee machine company relearned that lesson out the hard way, explains Richard Cohen of Fox Rothschild, with some hefty legal fees and settlements for “getting back” at an employee who didn’t like the daily “milestone” meetings. The meetings were held for employees to discuss their personal lives, including religious affiliations and church activities,...
August 15, 2014
It often my be too easy or too tempting, but you just cannot retaliate against employees who complain about the company. Unfortunately, a Tennessee machine company relearned that lesson out the hard way, explains Richard Cohen of Fox Rothschild, with some hefty legal fees and settlements for “getting back” at an employee who didn’t like the daily “milestone” meetings. The meetings were held for employees to discuss their personal lives, including religious affiliations and church activities,...
Beauty and Ugliness in Offer and Acceptance
August 15, 2014
This essay applies classical aesthetics to the contract doctrine of offer and acceptance. It argues that contract law can be understood, analyzed, and improved using three criteria of beauty: proportion, integrity, and clarity. Based on these criteria, this essay (1) argues that the traditional doctrine of offer and acceptance is beautiful, (2) argues that UCC §2-207 is ugly and fails to improve upon offer and acceptance, and (3) suggests improvements for UCC §2-207.
August 15, 2014
This essay applies classical aesthetics to the contract doctrine of offer and acceptance. It argues that contract law can be understood, analyzed, and improved using three criteria of beauty: proportion, integrity, and clarity. Based on these criteria, this essay (1) argues that the traditional doctrine of offer and acceptance is beautiful, (2) argues that UCC §2-207 is ugly and fails to improve upon offer and acceptance, and (3) suggests improvements for UCC §2-207.
U.S. Proposes Convention to Enforce Mediated Settlements to UNCITRAL
August 15, 2014
Earlier this month, the United Nations Commission on International Trade Law (UNCITRAL) approved its draft UNCITRAL Convention on transparency in treaty-based investor-State arbitration at its 47th session in New York City. The UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration adopted by the Commission in 2013 provide a procedural framework for making information available to the public on investment arbitration cases arising under relevant investment treaties concluded after...
August 15, 2014
Earlier this month, the United Nations Commission on International Trade Law (UNCITRAL) approved its draft UNCITRAL Convention on transparency in treaty-based investor-State arbitration at its 47th session in New York City. The UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration adopted by the Commission in 2013 provide a procedural framework for making information available to the public on investment arbitration cases arising under relevant investment treaties concluded after...
Ending Class Actions as We Know Them: Rethinking the American Class Action
August 15, 2014
Class actions have been a feature of the American litigation landscape for over 75 years. For most of this period, American-style class litigation was either unknown or resisted around the world. Notwithstanding this chilly reception abroad, American class litigation has always been a central feature of American procedural exceptionalism, nurtured on an idealized historical narrative of the class action device. Although this romantic narrative endures, the experience of the past twenty-five years...
August 15, 2014
Class actions have been a feature of the American litigation landscape for over 75 years. For most of this period, American-style class litigation was either unknown or resisted around the world. Notwithstanding this chilly reception abroad, American class litigation has always been a central feature of American procedural exceptionalism, nurtured on an idealized historical narrative of the class action device. Although this romantic narrative endures, the experience of the past twenty-five years...
First Impressions of This Term’s SCOTUS Decisions Were Misleading
August 14, 2014
First impressions can be deceiving and, with the benefit of a month of hindsight after the completion of the Supreme Court term, it is apparent than many of those impressions were misleading. After the term was over, many of the initial commentaries stressed the apparent consensus that emerged on the Roberts Court in October Term 2013. A stunning 65 percent of the cases were decided unanimously, compared with 49 percent being unanimous in the term before and 43 percent being unanimous two years ago. But...
August 14, 2014
First impressions can be deceiving and, with the benefit of a month of hindsight after the completion of the Supreme Court term, it is apparent than many of those impressions were misleading. After the term was over, many of the initial commentaries stressed the apparent consensus that emerged on the Roberts Court in October Term 2013. A stunning 65 percent of the cases were decided unanimously, compared with 49 percent being unanimous in the term before and 43 percent being unanimous two years ago. But...
New York is Top Choice for Arbitration in the US
August 14, 2014
New statistics reveal that New York is the top place for arbitration within the US, attracting almost three times as many arbitrations as Miami which was second. The findings were in the 2013 statistical report of the International Court of Arbitration of the International Chamber of Commerce (ICC) which revealed that the ICC registered 767 new cases in 2013. Of these, 22.8 per cent involved parties in the Americas, US parties were involved in 8.2 per cent of all ICC arbitrations in 2013. The city...
August 14, 2014
New statistics reveal that New York is the top place for arbitration within the US, attracting almost three times as many arbitrations as Miami which was second. The findings were in the 2013 statistical report of the International Court of Arbitration of the International Chamber of Commerce (ICC) which revealed that the ICC registered 767 new cases in 2013. Of these, 22.8 per cent involved parties in the Americas, US parties were involved in 8.2 per cent of all ICC arbitrations in 2013. The city...
FAA Preemption After Concepcion
August 14, 2014
AT&T Mobility LLC v. Concepcion is an important case for its holding that the FAA preempts application of state unconscionability doctrine to invalidate an arbitration clause with a class arbitration waiver. But in a number of respects, the effect of Concepcion has been overstated, including its effect on application of state unconscionability doctrine to arbitration clauses. Concepcion does not preempt all or even most state unconscionability doctrine as applied to arbitration agreements. Properly...
August 14, 2014
AT&T Mobility LLC v. Concepcion is an important case for its holding that the FAA preempts application of state unconscionability doctrine to invalidate an arbitration clause with a class arbitration waiver. But in a number of respects, the effect of Concepcion has been overstated, including its effect on application of state unconscionability doctrine to arbitration clauses. Concepcion does not preempt all or even most state unconscionability doctrine as applied to arbitration agreements. Properly...
College of Commercial Arbitrators (CCA) / Straus Institute for Dispute Resolution Survey on Arbitration Practice (Fall 2013)
August 14, 2014
The CCA-Straus Institute Survey on Arbitration Practice, one of the Straus Institute’s three recent surveys under the Theory-to-Practice Research Project, consisted of 65 multiple-choice and short-answer questions on respondents’ arbitration experiences and opinions on arbitration practices and the future of the arbitration field-at-large. The Survey asked questions pertaining to both “domestic” (defined in the Survey as “in the U.S. between U.S. parties”) and “international” (all...
August 14, 2014
The CCA-Straus Institute Survey on Arbitration Practice, one of the Straus Institute’s three recent surveys under the Theory-to-Practice Research Project, consisted of 65 multiple-choice and short-answer questions on respondents’ arbitration experiences and opinions on arbitration practices and the future of the arbitration field-at-large. The Survey asked questions pertaining to both “domestic” (defined in the Survey as “in the U.S. between U.S. parties”) and “international” (all...
