In today’s New York Times, Stanford Law Prof. Amalia Kessler has an interesting op-ed about consumer arbitration. The interesting thing about this piece is not its arguments against consumer arbitration but its historical take on arbitration that looks back past the FAA. That said, it hints at an argument I’ve heard many times about the high percentage of arbitration cases … Continue reading The Unfairness of Arbitration?
The SEC has published two requests for public comment on proposals to amend two separate FINRA Dispute Resolution procedural rules. The SEC’s first request for comment on a FINRA rule change proposal to raise the monetary threshold for Simplified Arbitration cases from $25,000 to $50,000. See the Federal Register Notice here. Comments are due by … Continue reading SEC Seeks Public Comment on Two FINRA Dispute Resolution Rule Proposals
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?
The annual CPR awards for the best ADR papers, books, and projects were recently announced. Kudos to my friend and ASU colleague Roselle Wissler for winning the Professional Article category with her article Court-Connected Settlement Procedures: Mediation and Judicial Settlement Conferences, 26 Ohio St. J. on D.R. 23 (2011) . Kudos are also due to Mizzou law prof … Continue reading CPR Award Winners Announced !!!
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
Below is a reminder from AALS ADR Section Chair-Elect Ron Aronovsky to attend the section’s program at the AALS meetings in DC later this week. Thanks to Ron for putting together a great program and for prompting this post. On Saturday, January 7, 2012, the AALS ADR Section will host a program at the AALS Annual Meeting … Continue reading AALS Conference – See You in DC
Just before the holidays the US Department of Justice Civil Rights Division concluded a 3 year investigation into America’s Toughest Sheriff, Maricopa County’s (the Phoenix metro) Sheriff Joe Arpaio. The investigation found discriminatory policing against Latinos, discriminatory jail practices against Latinos, a general culture of bias against Latinos in the Sheriff’s Office, and a practice of retaliatory … Continue reading Owen Fiss and Sherriff Joe Arpaio – “Against Settlement”
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
