1,721,031 research outputs found
Rethinking the Constitutionality of the Supreme Court\u27s Preference for Binding Arbitration: A Fresh Assessment of Jury Trial, Separation of Powers, and Due Process Concerns
Get PDFCourts and commentators have typically assumed that binding arbitration is both private and consensual, and that it therefore raises no constitutional concerns. This Article challenges both assumptions and goes on to consider arguments that arbitration agreements may unconstitutionally deprive persons of their right to a jury trial, to a judge, and to due process of law. The author argues first that courts\u27 interpretation of seemingly private arbitration agreements may often give rise to state action, particularly where courts have used a preference favoring arbitration over litigation to construe a contract in a non-neutral fashion. The author next draws on the Supreme Court\u27s decisions governing waiver of constitutional rights to argue that arbitration agreements are invalid where they are unclear, and further contends that many unknowing or coercive agreements are invalid as well. Having demonstrated the relevance of constitutional analysis to many seemingly private arbitration agreements, the Article contends that many arbitration agreements unconstitutionally deprive prospective federal court litigants of their right to a jury and to an Article III judge. Finally, the author asserts that some arbitration clauses violate the Due Process Clause as well by denying parties their right to adequate notice, an impartial judge, a meaningful appeal, and other specific procedural protections. The Article concludes that we must reconsider the applicability of the Constitution to private arbitration agreements. While many such agreements will present no constitutional concerns, other agreements must be voided under the Constitution
Introduction: Collaboration Good or Bad: How is it Working on the Colorado River?
Get PDFThis is an introduction to articles submitted as part of the Saltman Center for Conflict Resolution’s Symposium, Collaboration and the Colorado River. The Symposium focused on the uses of collaboration to resolve environmental and natural resource disputes pertaining to the Colorado River.
This written version of the conference now builds upon the live event. We are most fortunate that many (unfortunately not all) of the speakers were able to contribute articles to comprise this written version of the Symposium. In their papers, presenters have expanded on their oral remarks and responded to points made by others during the conference
Introduction: Dreaming About Arbitration Reform
Get PDFThis is an introduction to articles submitted as part of the Saltman Center for Dispute Resolution’s Symposium, Rethinking the Federal Arbitration Act: An Examination of Whether and How the Statute Should be Amended. The panelist’s remarks are divided into five categories: whether and when arbitration agreements ought to be enforceable, how responsibilities and legal issues should be divided among arbitrators and courts, terms under which courts should be able to vacate arbitral awards, multi-jurisdictional issues brought into play by the Federal Arbitration Act and its interpretation, and the FAA through a wide-angle lens rather than focusing on particular narrow aspects that might be in need of reform
Hurrah for the Consumer Financial Protection Bureau: Consumer Arbitration as a Poster Child for Regulation
Get PDFDrawing on economic, psychological and philosophical considerations, this Essay considers whether consumers should be free to agree to contractually trade their opportunity to litigate in a class action for the opportunity to bring an arbitration claim against a company. The Essay suggests that by looking at the CFPB\u27s regulation through these three lenses, one sees that the regulation is desirable—even a poster child—for the potential value of regulation when market forces are not sufficient to protect individual or public interests
Tsunami: AT&T Mobility LLC v. Concepcion Impedes Access to Justice
Get PDF26 pagesIt is highly ironic but no less distressing that a case with a name
meaning “conception” should come to signify death for the legal
claims of many potential plaintiffs. The U.S. Supreme Court’s fiveto-
four decision in AT&T Mobility LLC v. Concepcion is proving to
be a tsunami that is wiping out existing and potential consumer and
employment class actions. This Article will explore the decision;
how the decision is being interpreted by lower courts; the decision’s
impact on parties to such litigation; and how, if not legislatively
limited, this case will substantially harm consumers, employees, and
perhaps others
Disarming Employees: How American Employers Are Using Mandatory Arbitration to Deprive Workers of Legal Protection
Get PDFEmployers’ imposition of mandatory arbitration constricts employees’ access to justice. The twenty percent of the American workforce covered by mandatory arbitration clauses file just 2,000 arbitration claims annually, a minuscule number even compared to the small number of employees who litigate claims individually or as part of a class action. Exploring how mandatory arbitration prevents employees from enforcing their rights the Article shows employees covered by mandatory arbitration clauses (1) win far less frequently and far less money than employees who litigate; (2) have a harder time obtaining legal representation; (3) are often precluded from participating in class, collective or sometimes even group claims; and (4) do not fare well pro se in arbitration. Noting employers’ use of mandatory arbitration is likely increasing, the Article urges Congress to pass the Arbitration Fairness Act both to protect individual employees and also to ensure employment laws are enforced
As Mandatory Binding Arbitration Meets the Class Action, Will the Class Action Survive?
Get PDFAssuming that the traditional prerequisites for a class action have been met, courts have four choices: (1) order the dispute to be resolved in an individualized arbitration, thereby denying plaintiffs either a litigation or arbitration venue for their class claims; (2) refuse to mandate arbitration, and instead allow plaintiffs to litigate their class claims; (3) order that the dispute be resolved through an arbitral class action, also known as classwide arbitration; or (4) order the dispute to arbitration but allow the arbitrators to make the determination as to whether the dispute should be resolved individually or on a class basis. In short, it is telling that in all of the arbitral class actions that attorneys have discussed with this author, the judge rather than the arbitrators decided all the critical class action issues. When the parties have agreed to a broad arbitration clause, it is not appropriate to exclude an entire class of disputes from arbitration, unless permitting class arbitration would violate constitutional, statutory, or contractual interests. Legislation will be needed to prevent companies from using binding arbitration clauses to eliminate class actions entirely, to the extent we decide it would be undesirable to allow companies to insulate themselves from class actions, and to the extent that courts fail to accept the statutory and contractual arguments set out in this Article or elsewhere
The Rise and Spread of Mandatory Arbitration as a Substitute for the Jury Trial
Get PDFTHE CIVIL JURY trial is fast disappearing from our legal landscape, and one important reason for its disappearance is the rapid growth of mandatory arbitration. Yet, the imposition of mandatory arbitration eliminates the civil jury, and often this elimination is not made through a knowing, voluntary, or intelligent waiver. As I have argued elsewhere in greater detail, unless federal courts are generally willing to abandon the Seventh Amendment knowing/voluntary/intelligent civil jury trial waiver standard, they need to significantly revise their approach to mandatory arbitration clauses. If a given state allows the civil jury trial right to be waived through a contract of adhesion, even if the waiver is not knowing, voluntary, or intelligent, then that same standard should be applied to arbitration clauses. To the extent that the particular jurisdiction applies some version of the knowing, voluntary, intelligent test to determine whether the jury trial right has been waived, then that precise test should be applied to the arbitration clause. Companies\u27 imposition of mandatory arbitration against consumers, employees, and others now threatens the jury trial right to the extent that courts fail to apply the traditional jury trial waiver to mandatory arbitration provisions
Pouring a Little Psychological Cold Water on Online Dispute Resolution
Get PDFThis Article examines the strengths and weaknesses of ODR (online dispute resolution) from a psychological perspective. It makes five main points:(1) The phrase ODR is too broad to be useful. This phrase encompasses many different kinds of technology (computer, phone, video, mechanical pencil), many different kinds of dispute resolution (litigation, negotiation, arbitration, mediation), disputes arising in many different contexts (consumer, family, property, tax, employment, etc.), and many different roles (technology as neutral, technology as aide to neutral, technology as aide to disputant, etc.). In order to consider whether and when ODR can be most useful we will need to tease apart these various types of ODR.(2) Those who design all types of ODR should pay substantial attention to the psychology underlying disputes, and be conscious that merely using ODR to foster rational exchanges of information will likely not yield ideal dispute resolution. Many empirical studies already show that human psychology is critically important to dispute resolution.(3) In the short term my instinct is that humans will often have a comparative advantage over computers or other technology in handling the psychological aspects of disputes. I believe humans are likely to be more adept than technology at creating empathy, building rapport and trust, and helping to persuade people to rethink their strongly felt beliefs.(4) At the same time, we should all appreciate that technology is evolving quickly, and potentially will be able to do things we can’t easily imagine. As ODR designers work to refine ODR approaches they should focus on the human and psychological side of disputes. Perhaps holographic mediators will actually be able to build better empathy and rapport than many humans?(5) Rather than trust our instincts regarding the comparative superiority of humans and technology to handle human psychology we should test these approaches empirically. I appreciate that even my own instincts on these fronts may be wrong
In Defense of Mandatory Arbitration (If Imposed on the Company)
Get PDFHaving spent much of her academic life battling companies\u27 mandatory imposition of binding arbitration on consumers and employees, the author now switches gears. This Article contemplates whether mandatory binding arbitration is acceptable if imposed by the government on companies (governmental mandatory arbitration) rather than by companies on their employees and consumers (private mandatory arbitration). Specifically, the Article considers the possibility of statutes that would provide little guys (consumers and employees) with an opportunity to take their disputes to binding arbitration rather than litigation. If the little guys chose arbitration over litigation, post-dispute, companies would have to agree to such arbitration, and the results of the arbitration would then be binding on both little guy and company. If on the other hand the little guys preferred to litigate their disputes, they would reserve that right. After first examining the policy implications of this approach, and finding some reasons to favor the proposal, the Article next considers the constitutional arguments that would likely be raised in opposition to such statutes. Specifically, it considers the legitimacy of governmentally imposed mandatory arbitration in light of Article III, the Seventh Amendment, and the Due Process Clause. The Article finds that it may be possible to governmentally impose mandatory arbitration in some situations without violating the Constitution. Nonetheless, the Article concludes that trying to introduce such legislation is probably unwise, as a matter of realpolitik. At a minimum, however, the Article should discourage companies and their lobbyists from insisting, as they often do, that privately imposed binding arbitration is the best way to ensure little guys get access to arbitration. Instead, if such companies and lobbyists truly believe arbitration is better for little guys than litigation they should favor the governmental imposition of arbitration on companies, as discussed in this Article
- …
