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11th Circuit Finds Homeowners Bound By “Shinglewrap” Arbitration Agreement, Shuts Down Class Action
December 4, 2018
In an opinion that coins new terms and uses the insouciant tone of a blogger, the 11th Circuit just shut down a putative class action brought by homeowners against a vendor of roof shingles. The Court found that the terms and conditions printed on the exterior of the shingle packaging formed an enforceable contract (with a class arbitration waiver), and when the roofing contractors opened the shingles, the roofers bound the homeowners who had hired them. Dye v. Tamko Building Products, Inc.,...
December 4, 2018
In an opinion that coins new terms and uses the insouciant tone of a blogger, the 11th Circuit just shut down a putative class action brought by homeowners against a vendor of roof shingles. The Court found that the terms and conditions printed on the exterior of the shingle packaging formed an enforceable contract (with a class arbitration waiver), and when the roofing contractors opened the shingles, the roofers bound the homeowners who had hired them. Dye v. Tamko Building Products, Inc.,...
Using Neuroscience to Understand Stress and Improve Mediation
December 3, 2018
People involved in conflict generally, and in mediation specifically, encounter many events that initiate the physiologic stress response. What is this response and what triggers it? How does the stress response impact judgment, decision-making, and memory? What can mediators do to minimize the deleterious effects of the stress response? Learning the answers to these questions can help to make a more effective mediator. What is the physiologic stress response? The physiologic stress response...
December 3, 2018
People involved in conflict generally, and in mediation specifically, encounter many events that initiate the physiologic stress response. What is this response and what triggers it? How does the stress response impact judgment, decision-making, and memory? What can mediators do to minimize the deleterious effects of the stress response? Learning the answers to these questions can help to make a more effective mediator. What is the physiologic stress response? The physiologic stress response...
‘Context,’ Launching Today from LexisNexis, Applies Unique Analytics to Judges and Expert Witnesses
December 3, 2018
A legal analytics product being launched today by LexisNexis does something no other analytics product does: It analyzes...
December 3, 2018
A legal analytics product being launched today by LexisNexis does something no other analytics product does: It analyzes...
When will the cord be cut in legal publishing?
December 2, 2018
Market shifting caused some of the problem, but ESPN management’s refusal to listen was the real problem. ESPN execs often tried to shoot the messengers instead of listening to the message. And once the damage was done, ESPN decided to fire hundreds of longstanding sports journalists and support personnel… Common sense dictates that sooner or later, legal content creators (the true publishers) are going to take control of their digital publishing. They are going to cut the cord. Sure,...
December 2, 2018
Market shifting caused some of the problem, but ESPN management’s refusal to listen was the real problem. ESPN execs often tried to shoot the messengers instead of listening to the message. And once the damage was done, ESPN decided to fire hundreds of longstanding sports journalists and support personnel… Common sense dictates that sooner or later, legal content creators (the true publishers) are going to take control of their digital publishing. They are going to cut the cord. Sure,...
Can AI really be worth $15.4 TRILLION?
December 1, 2018
McKinsey reported that total potential “annual value of AI and analytics across industries to be be worth $9.5 to $15.4 trillion” in its report entitled “The executive’s AI playbook” which includes 3 different perspectives: Value & Assess – Size the opportunity and determine data needs Execute – Learn best practices to realize value Beware – Know the warning signed of AI program failure The 3rd perspective to Beware includes 10 “warning signs of AI program failure” which...
December 1, 2018
McKinsey reported that total potential “annual value of AI and analytics across industries to be be worth $9.5 to $15.4 trillion” in its report entitled “The executive’s AI playbook” which includes 3 different perspectives: Value & Assess – Size the opportunity and determine data needs Execute – Learn best practices to realize value Beware – Know the warning signed of AI program failure The 3rd perspective to Beware includes 10 “warning signs of AI program failure” which...
ICSID Arbitration Reform: Mapping Concerns of Users and How to Address Them
November 30, 2018
How changes of ICSID procedure can be achieved? The ICSID Convention itself contains several procedural rules which regulate the conduct of arbitral proceedings. Amendment of these rules is, however, difficult as a matter of public international law. However, ICSID Rules of Procedure for Arbitration Proceedings, which are incorporated by parties into their arbitration clauses by reference, can be amended more easily, upon the approval of a majority of two-thirds of the Member States. This seems...
November 30, 2018
How changes of ICSID procedure can be achieved? The ICSID Convention itself contains several procedural rules which regulate the conduct of arbitral proceedings. Amendment of these rules is, however, difficult as a matter of public international law. However, ICSID Rules of Procedure for Arbitration Proceedings, which are incorporated by parties into their arbitration clauses by reference, can be amended more easily, upon the approval of a majority of two-thirds of the Member States. This seems...
Sharkey on the Economic Loss Rule
November 30, 2018
Cathy Sharkey has posted to SSRN In Search of the Cheapest Cost Avoider: Another View of the Economic Loss Rule. The abstract provides: The economic loss rule in tort engages two fundamental theoretical questions: (1) which interests should tort law protect; and, more pointedly, (2) how should we think about claims that arise along the boundary line between tort and contract? This Article advances two claims that aim to clarify this controversial, often misunderstood, doctrine. First, it is imperative...
November 30, 2018
Cathy Sharkey has posted to SSRN In Search of the Cheapest Cost Avoider: Another View of the Economic Loss Rule. The abstract provides: The economic loss rule in tort engages two fundamental theoretical questions: (1) which interests should tort law protect; and, more pointedly, (2) how should we think about claims that arise along the boundary line between tort and contract? This Article advances two claims that aim to clarify this controversial, often misunderstood, doctrine. First, it is imperative...
Studies Conclude Arbitration Is A Black Hole With Repeat Player Bias (But Also Faster & Cheaper Than Court)
November 29, 2018
You know what rarely rises to the top of my “to do” list? Reading scholarly articles and studies about arbitration. Blech. But, since I haven’t seen any good court decisions lately, it is time to visit the neglected pile of articles. Turns out, I should have read some of them right away. Below are summaries of five new-ish articles that have crossed my desk. A few offer peeks into arbitration data that is generally not available and some conclusions to chew on over this Thanksgiving...
November 29, 2018
You know what rarely rises to the top of my “to do” list? Reading scholarly articles and studies about arbitration. Blech. But, since I haven’t seen any good court decisions lately, it is time to visit the neglected pile of articles. Turns out, I should have read some of them right away. Below are summaries of five new-ish articles that have crossed my desk. A few offer peeks into arbitration data that is generally not available and some conclusions to chew on over this Thanksgiving...
Four Decisions Conclude Claims Outside Scope of Arbitration Agreement
November 29, 2018
There are only four ways to avoid an arbitration agreement. You can prove: 1) it was never formed; 2) it was formed, but is invalid under state law; 3) the current dispute is outside the scope of it; or 4) the other party waived their right to arbitrate (through litigation conduct). Today’s post is about the third method. Because of the federal presumption in favor of arbitrability, which applies when courts are determining whether the parties’ dispute falls within the scope of the clause,...
November 29, 2018
There are only four ways to avoid an arbitration agreement. You can prove: 1) it was never formed; 2) it was formed, but is invalid under state law; 3) the current dispute is outside the scope of it; or 4) the other party waived their right to arbitrate (through litigation conduct). Today’s post is about the third method. Because of the federal presumption in favor of arbitrability, which applies when courts are determining whether the parties’ dispute falls within the scope of the clause,...
The ICSID Conciliation Rules in Practice
November 28, 2018
Frauke Nitschke, Team Leader and Legal Counsel on one of the Case Management Teams at the International Centre for Settlement of Investment Disputes has published “The ICSID Conciliation Rules in Practice,” Forthcoming, Mediation in International Commercial and Investment Disputes, edited by Catharine Titi and Katia Fach Gómes (Oxford University Press 2018). In her book chapter, Ms. Nitschke describes and analyzes the conciliation process and procedure that is currently in place...
November 28, 2018
Frauke Nitschke, Team Leader and Legal Counsel on one of the Case Management Teams at the International Centre for Settlement of Investment Disputes has published “The ICSID Conciliation Rules in Practice,” Forthcoming, Mediation in International Commercial and Investment Disputes, edited by Catharine Titi and Katia Fach Gómes (Oxford University Press 2018). In her book chapter, Ms. Nitschke describes and analyzes the conciliation process and procedure that is currently in place...
