Paul Bland has a compelling post on the Second Circuit’s recent decision in Duran v. The J. Hass Group, in which the court enforced an arbitration agreement requiring a consumer from New York, who alleged she was defrauded of almost $4000, to arbitrate in New Mexico. Paul’s summary: This strategy worked pretty well for the defendants … Continue reading The Most Recent Example of Arbitration Overreach
As I argued in a recent post, Nitro-Lift Technologies v. Howard, 568 U.S. ___ (2012), is another in an increasingly long line of cases that trample on state sovereignty in the name of the Supreme Court’s fabricated “federal policy favoring arbitration.” The question for state courts chafing under this regime is whether legal strategies exist … Continue reading Nitro-Lift Technologies v. Howard: Forum Selection and the FAA Savings Clause
As Jill Gross suggested in her post the other day, there is nothing novel about the Supreme Court’s per curiam decision in Nitro-Lift Technologies v. Howard, 568 U.S. ___ (2012). And the fact that the case seems unexceptional is powerful evidence for how extreme the Supreme Court’s arbitration jurisprudence has become. Like most states, Oklahoma has … Continue reading Nitro-Lift Technologies v. Howard: The Arbitration Locomotive Rolls On
Last winter, I wrote about the Delaware Court of Chancery’s arbitration scheme, in which the court hired out its Chancery Judges to serve as “private” arbitrators, deciding in secret cases they otherwise would have been deciding in public, with proceeds from the five-figure fees going into court coffers. The scheme was a grotesque, if predictable, … Continue reading A Stumble in the March of Adjudicative Privatization: Delaware Chancery Arbitration Scheme Declared Unconstitutional
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
Earlier this month, the NLRB ruled that employers may not require employees to consent to the waiver of class rights as part of an employment arbitration agreement. The NLRB’s rationale was that the Fair Labor Standards Act and the Norris-LaGuardia Act guarantee employees the right to enforce their provisions through collective action. Now, in Sutherland … Continue reading SDNY Invalidates Class Waiver for FLSA Claim
Jean Sternlight’s post on the NLRB’s decision in D.R. Horton, Inc. and Michael Cuda cogently summarizes the NLRB’s rationale for treating class waivers differently in the employment context governed by the NLRA than in other FAA contexts. As she points out, this decision is controversial. Because it runs counter to a steady current of Supreme Court … Continue reading How Will Courts Review the NLRB Employment Class Action Decision?
I have criticized the Supreme Court’s arbitration jurisprudence for cutting off the procedural rights of consumers and employees. See this, this, and this. Those are policy objections rooted in federalism as well as state and federal guarantees of due process and the right to a civil jury trial. I have not contended that consumer arbitration … Continue reading On the Benefits of Consumer Arbitration
In Buckeye Check Cashing v. Cardegna, Justice Scalia authored an opinion for the Supreme Court holding that, where a consumer credit contract contains an arbitration provision, the arbitrator rather than a court decides all questions about the legality of the underlying debt instrument. Buckeye’s holding was controversial, because it effectively pushes a consumer debtor into arbitration … Continue reading Originalism, Arbitration, and the Civil Jury
Over the past 18 months, the Supreme Court has become increasingly brazen in using the Federal Arbitration Act to cut off procedural rights–and in the process substantive rights–established by Congress and state legislatures. Through its decisions in Rent-a-Center, Stolt-Nielsen, and Concepcion, the Court has handed the Chamber of Commerce a simple recipe for relieving itself of many of … Continue reading Occupy Arbitration? Judicial Nonviolent Resistance
