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A Reality Check
March 22, 2013
One of the jobs of a mediator is to provide a “reality check”; to be a neutral, dispassionate third party, who can be objective and discuss with a party the “downside” or “adverse consequences” to her side of dispute. The goal is to have that party accept what is being said and to act accordingly. To be the one giving the “reality check” is one thing; to be the receiver of it, is quite another. My recent experience gave me a profound respect for those to whom I must be the “bearer...
March 22, 2013
One of the jobs of a mediator is to provide a “reality check”; to be a neutral, dispassionate third party, who can be objective and discuss with a party the “downside” or “adverse consequences” to her side of dispute. The goal is to have that party accept what is being said and to act accordingly. To be the one giving the “reality check” is one thing; to be the receiver of it, is quite another. My recent experience gave me a profound respect for those to whom I must be the “bearer...
Sidetracked: Why Can’t We Stick to the Plan?
March 22, 2013
"The best-laid schemes of mice and men go often awry." - Robert Burns, 1785 An entrepreneur starts a company with plans to go public, but ultimately accepts a low-ball acquisition offer from a competitor. A newlywed husband plans to spend 10 minutes in Whole Foods picking up the ingredients for a romantic dinner, but ends up spending an hour comparison shopping for organic dog food and craft beer. A college student resolves to spend every Wednesday evening studying in the library, only to spend...
March 22, 2013
"The best-laid schemes of mice and men go often awry." - Robert Burns, 1785 An entrepreneur starts a company with plans to go public, but ultimately accepts a low-ball acquisition offer from a competitor. A newlywed husband plans to spend 10 minutes in Whole Foods picking up the ingredients for a romantic dinner, but ends up spending an hour comparison shopping for organic dog food and craft beer. A college student resolves to spend every Wednesday evening studying in the library, only to spend...
Investor Protection Meets the Federal Arbitration Act
March 22, 2013
In the past three decades, most recently in AT&T Mobility LLC v. Concepcion, the United States Supreme Court has advanced an aggressive pro-arbitration campaign, transforming the Federal Arbitration Act (FAA) into a powerful source of anti-consumer substantive arbitration law. In the aftermath of AT&T Mobility, which upheld a prohibition on class actions in a consumer contract despite state law that refused to enforce such provisions on unconscionability grounds, efforts have been made to prohibit...
March 22, 2013
In the past three decades, most recently in AT&T Mobility LLC v. Concepcion, the United States Supreme Court has advanced an aggressive pro-arbitration campaign, transforming the Federal Arbitration Act (FAA) into a powerful source of anti-consumer substantive arbitration law. In the aftermath of AT&T Mobility, which upheld a prohibition on class actions in a consumer contract despite state law that refused to enforce such provisions on unconscionability grounds, efforts have been made to prohibit...
Arbitration and Access to Justice: Economic Analysis
March 22, 2013
Mandatory arbitration clauses in consumer contracts are widely regarded as problematic because they limit consumer’s access to judicial forums, to fair procedures, and potentially to any kind of remedy. But rather than looking at consumers as a group, I examine which sub groups of consumers are affected by this limitation more than others. I argue that in most circumstances, access to courts benefits the elite, not the weak. It is a species of open-access policy that has an unintended regressive...
March 22, 2013
Mandatory arbitration clauses in consumer contracts are widely regarded as problematic because they limit consumer’s access to judicial forums, to fair procedures, and potentially to any kind of remedy. But rather than looking at consumers as a group, I examine which sub groups of consumers are affected by this limitation more than others. I argue that in most circumstances, access to courts benefits the elite, not the weak. It is a species of open-access policy that has an unintended regressive...
Mandatory Predispute Consumer Arbitration, Structural Bias, and Incentivizing Procedural Safeguards
March 22, 2013
Within the past several decades, there has been an explosion in the creation, institutionalization and use of “alternative” dispute resolution procedures. Mandatory predispute arbitration has generated the most controversy because it appears beset with structural bias. The recent cases of AT&T Mobility LLC v. Concepcion and Compucredit Corp. v. Greenwood have raised additional concerns as the Supreme Court has announced that corporations can force consumers to arbitrate their private and statutory...
March 22, 2013
Within the past several decades, there has been an explosion in the creation, institutionalization and use of “alternative” dispute resolution procedures. Mandatory predispute arbitration has generated the most controversy because it appears beset with structural bias. The recent cases of AT&T Mobility LLC v. Concepcion and Compucredit Corp. v. Greenwood have raised additional concerns as the Supreme Court has announced that corporations can force consumers to arbitrate their private and statutory...
Structured Settlement Sales Decline in 2012
March 21, 2013
Sales of structured settlement annuities totaled $4,819,124,617 during 2012(down from $4,974,710,838 in 2011) as reported today by Melissa Evola in her quarterly summary of United States structured settlement annuity provider premium. The 2012 U.S. structured settlement annual premium total represents thelowest amount since 1999 based upon historic reporting in "Structured Settlement and Periodic Payment Judgments" (S2P2J) and more recent reports by Evola. According to these same sources: Annual...
March 21, 2013
Sales of structured settlement annuities totaled $4,819,124,617 during 2012(down from $4,974,710,838 in 2011) as reported today by Melissa Evola in her quarterly summary of United States structured settlement annuity provider premium. The 2012 U.S. structured settlement annual premium total represents thelowest amount since 1999 based upon historic reporting in "Structured Settlement and Periodic Payment Judgments" (S2P2J) and more recent reports by Evola. According to these same sources: Annual...
Curiosity, Information Gaps, and the Utility of Knowledge
March 21, 2013
We propose an integrated theoretical framework that captures the diverse motives driving the preference to obtain or avoid information. Beyond the conventional desire for information as an input to decision making, people are driven by curiosity, which is a desire for knowledge for its own sake, even in the absence of material benefits, and people are additionally motivated to seek out information about issues they like thinking about and avoid information about issues they do not like thinking about...
March 21, 2013
We propose an integrated theoretical framework that captures the diverse motives driving the preference to obtain or avoid information. Beyond the conventional desire for information as an input to decision making, people are driven by curiosity, which is a desire for knowledge for its own sake, even in the absence of material benefits, and people are additionally motivated to seek out information about issues they like thinking about and avoid information about issues they do not like thinking about...
Reforming Legal Education to Prepare Law Students Optimally for Real-World Practice
March 21, 2013
This article synthesizes major points in the October 2012 symposium of the University of Missouri School of Law Center for the Study of Dispute Resolution, entitled "Overcoming Barriers in Preparing Law Students for Real-World Practice." There is a growing consensus that American law schools need to do a better job of preparing students to practice law. Teaching students to think like a lawyer is still necessary but it is not sufficient for students to act like a lawyer soon after they graduate....
March 21, 2013
This article synthesizes major points in the October 2012 symposium of the University of Missouri School of Law Center for the Study of Dispute Resolution, entitled "Overcoming Barriers in Preparing Law Students for Real-World Practice." There is a growing consensus that American law schools need to do a better job of preparing students to practice law. Teaching students to think like a lawyer is still necessary but it is not sufficient for students to act like a lawyer soon after they graduate....
Goldman Can Arbitrate Gender Discrimination Class Action
March 21, 2013
The Second Circuit held today in Parisi v. Goldman Sachs that an arbitration provision in an employment agreement would be enforced, even though the plaintiff contended that arbitration on an individual basis would prevent her from pursuing “a pattern-or-practice claim” under Title VII of the Civil Rights Act of 1964 (where the arbitration provision did not permit class arbitration). The Circuit held—on a ground more pertinent to discrimination claims than to arbitration law—that “’pattern-or...
March 21, 2013
The Second Circuit held today in Parisi v. Goldman Sachs that an arbitration provision in an employment agreement would be enforced, even though the plaintiff contended that arbitration on an individual basis would prevent her from pursuing “a pattern-or-practice claim” under Title VII of the Civil Rights Act of 1964 (where the arbitration provision did not permit class arbitration). The Circuit held—on a ground more pertinent to discrimination claims than to arbitration law—that “’pattern-or...
