Jen wrote a comment about my post that built on Prof. Vincent Cardi’s new article, “Litigation as Violence,” describing some effects of “violence” even from non-physical acts. She wrote: We in ADR should not undervalue, when analyzing the dispute resolution landscape, the regulatory function of litigation in the United States. A business executive may feel … Continue reading Minimizing Unnecessary Violence in Litigation and Other Dispute Resolution Processes
The Washington University School of Law Whitney R. Harris World Law Institute and Negotiation & Dispute Resolution Program (that’s a mouthful) is sponsoring a symposium on international dispute resolution on Friday, Feb. 6, from 8:30 am until noon. The symposium includes panels entitled “International Arbitration and the Cross-Border Deal” and “Mediating International Disputes – An … Continue reading International Dispute Resolution Symposium at Washington University
Does ADR include trials? I know, I know. This sounds like another one of my dumb questions. Although I have a pretty broad conception of DR, my initial reaction was that trial is one of the few procedures I would exclude from DR. As described below, on reflection, I probably would include trials. More importantly, … Continue reading What is (A)DR About?
I learned this morning that General Mills retracted its arbitration policy in the face of considerable criticism. See http://www.nytimes.com/2014/04/20/business/general-mills-reverses-itself-on-consumers-right-to-sue.html?_r=0. Imre Szalai comments on the reversal: “You have probably seen the news that general mills reversed itself this weekend after the public outcry over GM’s recently-implemented arbitration policy. I’m glad this 180 degree reversal occurred. I … Continue reading General Mills Reverses Course — Comments from Imre Szalai
I thought some of you might like to see the arbitration clause General Mills has on their website. To find it, you must click on legal terms on their home page. Here are the terms: Legal terms This page contains important legal terms affecting your relationship with General Mills, including all of its affiliated companies … Continue reading General Mills’ Arbitration Clause
From BNA’s Daily Labor Report: “The National Labor Relations Board March 13 filed a petition asking the U.S. Court of Appeals for the Fifth Circuit to rehear and reverse a 2-1 panel decision that rejected the NLRB’s position that class and collective action waivers in an employer’s mandatory arbitration policy interfered with employee rights under … Continue reading NLRB files petition for rehearing in D.R. Horton (class arbitration) case
Today, the Supreme Court in Oxford Health Plans v. Sutter, http://www.scotusblog.com/case-files/cases/oxford-health-plans-llc-v-sutter/, affirmed its commitment to narrow judicial review of arbitration decisions. In Sutter, the arbitrator interpreted an arbitration agreement to permit class arbitration. Because the parties asked the arbitrator to interpret the agreement, the only question for a court, according to the Supreme Court, is … Continue reading Supreme Court Affirms Commitment to Narrow Judicial Review of Arbitration Awards in Sutter Decision
Following yesterday’s exciting oral argument in Sutter v. Oxford Health Plans (more on that later), I am pleased to announce that Ohio State’s 2013 Schwartz Lecture will be given by Professor Christopher Drahozal, from University of Kansas, on Thursday at noon in Saxbe Auditorium. Please join us if you are in Columbus! Chris’s very timely … Continue reading Schwartz Lecturer Professor Chris Drahozal to Speak at Moritz on Thursday, March 28th
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?
In an article about the Supreme Court’s docket of cases pending for its new term, New York Times’ reporter Adam Liptak quotes Justice Anthony Kennedy on the reasons why the Court’s docket is more heavily oriented towards criminal and First Amendment cases. Speaking to reporters at a judicial conference in August, Justice Kennedy stated, “The … Continue reading Justice Kennedy says fewer “big civil cases” on Supreme Court’s docket due to arbitration