In Sunday’s New York Times, David Segal, who authors The Haggler column on consumer issues and negotiation, took issue with Concepcion and its fall-out. Segal highlighted the case of a veteran owed a $400 refund under the Servicemembers Civil Relief Act on an aborted car lease. The veteran became the lead plaintiff in a class … Continue reading The Haggler on Concepcion
With the occasional exception of Justice Kennedy, the Supreme Court’s Republican-appointed Justices are not conservative in any principled sense. They are radicals, willing to cast aside established doctrines and forge new ones in the service of various policy objectives. This tendency is particularly evident in the Court’s constitutional jurisprudence, where from hand guns to campaign … Continue reading Arbitration and the “Conservative” Court
As expected, the NLRB’s decision in D.A. Horton limiting arbitral class waivers in employment agreements has been appealed to the Fifth Circuit. As I suggested in this post, the case pits the Supreme Court’s interpretation of the FAA against the NLRB’s interpretation of “concerted action” in the labor laws, raising questions about Supreme Court deference … Continue reading NLRB Decision Limiting Class Waivers Appealed
The Delaware Chancery Court arbitration scheme is on one side of a gold coin, with the “federal policy favoring arbitration” on the other. The story starts with the slow strangulation of the judiciary caused by Congress’s failure over the last forty years to add enough judges to keep up with the draconian penal laws that … Continue reading The Commodification of Legal Decisionmaking
Sports fans will be aware of the controversy over National League MVP Ryan Braun’s positive test for anabolic steroids. Braun tested positive for very high levels of testosterone last fall and was suspended by Major League Baseball for 50 games under baseball’s drug testing policy. He filed a grievance through the baseball players’ union, and … Continue reading The Ryan Braun Arbitration
Last week the Hastings Business Law Journal hosted a symposium titled “Mandatory Arbitration in Contracts of Adhesion: When Many Become One.” The conference, which considered the implications of the Supreme Court’s decision in AT&T Mobility v. Concepcion on consumer contracts of adhesion, featured a mix of scholars and practicing lawyers including Tom Stipanowich, Amy Schmitz, … Continue reading Concepcion Conference at Hastings
In a per curiam opinion, the Supreme Court today reversed three consolidated decisions by the West Virginia Supreme Court of Appeals refusing to enforce pre-dispute arbitration agreements in nursing home contracts where a claim alleges negligence or wrongful death. The West Virginia high court had held that “as a matter of public policy under West Virginia … Continue reading Supreme Court Rejects West Virginia Rule Barring Nursing Home Arbitration
Jonah Lehrer has an interesting piece in the New Yorker discussing research into brainstorming. His focus is mainly on creativity in research groups, but there are some lessons for brainstorming in dispute resolution contexts as well. For example, he describes research showing that the classic brainstorming advice–no criticism–is counterproductive. In fact, the evidence suggests that … Continue reading To Brainstorm or Not To Brainstorm
At last spring’s ABA Legal Educators’ Colloquium, I led a panel with Nancy Welsh and Jennifer Brown on teaching distributive negotiation. The papers that developed out of that panel, along with an additional piece by Michael Wheeler, have now been published in the new issue of the Negotiation Journal. Mike leads off by making the case … Continue reading Wheeler, Brown, Kirgis, and Welsh on Negotiation Pedagogy
On Thursday, April 26, 2012, Cardozo Law will hold a half-day conference on the scope and impact of AT&T Mobility v. Concepcion. The conference will begin at 1:30 and will feature scholars such as Jean Sternlight, Nina Pillard, Judith Resnik, Charles Silver, and my colleague Adam Zimmerman.
