Posts Tagged ‘arbitration’

August 19 roundup

  • “Photos of Your Meal Could be Copyright Infringement in Germany” [Petapixel]
  • National Labor Relations Board opts to dodge a fight with college football [Daniel Fisher, Forbes]
  • Governor’s commission charged with recommending new redistricting system in Maryland includes possibly recognizable name [Washington Post, Southern Maryland Newspapers; thanks to Jen Fifield for nice profile at Frederick News-Post]
  • Trial bar’s assault on arbitration falls short: California Supreme Court won’t overturn auto dealers’ standard arbitration clause [Cal Biz Lit]
  • Ontario lawyer on trial after prosecutors say sting operation revealed willingness to draft false refugee application [Windsor Star, more]
  • “Vaping shops say FDA regulation could put them out of business” [L.A. Times, The Hill] Meanwhile: “e-cigarettes safer than smoking, says Public Health England” [Guardian]
  • I was honored to be a panelist last month in NYC at the 15th annual Michael R. Diehl Civil Rights Forum, sponsored by the law firm of Fried, Frank, alongside Prof. Marci Hamilton (Cardozo) and Rose Saxe (ACLU) discussing the intersection of religious accommodation and gay rights [Fried, Frank] Also related to that very current topic, the Southern California Law Review has a symposium on “Religious Accommodation in the Age of Civil Rights” [Paul Horwitz, PrawfsBlawg]

California lawmakers move against arbitration

By cutting off contractual freedom for pre-dispute arbitration agreements in the workplace, trial lawyers and unions in California intend to pave the way for more and bigger class actions [Dave Roberts, Fox and Hounds] More: Coyote (“Here is how you should think about this proposed law: Attorneys are the taxi cartels, and arbitration is Uber. And the incumbents want their competitor banned.”)

Labor and employment roundup

Banking and finance roundup

  • Cato Book Forum tomorrow (Wednesday, May 13): Paul Mahoney, “Wasting a Crisis: Why Securities Regulation Fails” [register or watch online]
  • “When The SEC Pays Your Lawyer For Informing On You, Is That A Good Thing?” [Daniel Fisher]
  • “Unfortunately for the CFPB’s ideological imperative, Ballard Spahr concludes otherwise: ‘In fact, the study confirms that arbitration does benefit consumers.'” [Kevin Funnell]
  • Which “established members of the business establishment” brought the AIG prosecution to Eliot Spitzer’s desk, and from what motives? [Ira Stoll]
  • Dodd-Frank “say on pay” failed to slow rise in CEO compensation, and it would help to understand why [Marc Hodak vs. James Surowiecki]
  • “One-Third of Americans Living Abroad Have Thought Actively About Renouncing Citizenship Due to Tax-Filing Requirements” [Matt Welch, followup, earlier on FATCA] Rand Paul bill would repeal the law, and there’s also a constitutional challenge in the works [TaxProf]
  • “What’s the point of the implied covenant of good faith? Other than generating fees for lawyers?” [Prof. Bainbridge]

Medical roundup

  • Mississippi community rallies behind 88 year old doctor investigated by licensure board for practicing from his car [AP]
  • Pennsylvania: “Kill deal between Attorney General’s office and law firm, nursing homes ask court” [Harrisburg Patriot-News; earlier on AG Kathleen Kane; related on law firm of Cohen Milstein, on which earlier]
  • Hazards of overwarning in the wired hospital: “2,507,822 unique alarms in one month in our ICUs, the overwhelming majority of them false.” [Robert Wachter, Medium]
  • JAMS arbitrator, a retired California Supreme Court judge, resists subpoena seeking explanation of settlement allocation decisions among Prempro clients of Girardi Keese [National Law Journal; see also from way back]
  • Reports of VA-scandal retaliation raise question: do all the HIPAA laws in the world protect us from persons in high places wishing to pry into our medical records with ill intent? [J. D. Tuccille, Reason]
  • New York Attorney General Eric Schneiderman charged that 79% of herbal supplements lacked appropriate DNA, but that claim itself turns out to be hard to substantiate [Bill Hammond, New York Daily News]
  • Nurses’ gallows humor defended against That’s-Not-Funny Brigade [Alexandra Robbins, Washington Post]

Supreme Court roundup

Very Cato-centric this time:

  • Perez v. Mortgage Bankers: yes, agencies can dodge notice and comment requirements of Administrative Procedures Act by couching action as other than making new rule [SCOTUSBlog and more links, earlier; Michael Greve and followup; Daniel Fisher on concurrence by Justices Scalia, Thomas, and Alito and related on Thomas, Alito concurrences in Amtrak case]
  • New Jersey high court is unreasonably hostile to arbitration clauses, which raises issues worthy of review [Shapiro on Cato cert petition]
  • “When Wisconsin Officials Badger Their Political Opponents, It’s a Federal Case” [Ilya Shapiro, earlier here, here, etc.]
  • Richard Epstein on King v. Burwell oral argument [Hoover, earlier]
  • With Profs. Bill Eskridge and Steve Calabresi, Cato files probably its last same-sex marriage brief before SCOTUS [Shapiro; Timothy Kincaid, Box Turtle Bulletin]
  • On Abercrombie (religious headscarf) case, Jon Hyman sees an edge for plaintiff at supposedly pro-business Court [Ohio Employer Law Blog, earlier]
  • A different view on Fourth Amendment challenge to cops’ warrantless access to hotel guest registries [James Copland on Nicholas Quinn Rosenkranz brief; earlier Cato amicus]
  • “Why the Court Should Strike Down the Armed Career Criminal Act as Unconstitutionally Vague” [Trevor Burrus]

Liability roundup

  • From the Manhattan Institute “Trial Lawyers Inc.” project, “Wheels of Fortune” (PDF), twin report on lawyers’ exploitation of SSDI (Social Security Disability) and ADA cases;
  • Theodore Dalrymple on the flaws of the US litigation system [Liberty and Law]
  • Testimony: “after he inquired about the 40 percent fee charged by [co-counsel] Chestnut, [Willie] Gary threatened to ‘tie up [client] Baker’s money in the courts for years so he would never live to see it.'” [Gainesville Sun]
  • ATRA takes aim at rise of asbestos litigation in NYC [“Judicial Hellholes” series, Chamber-backed Legal NewsLine, New York Daily News (“national scandal”)]
  • Another reminder that while plaintiff’s lawyers conventionally assail pre-dispute employment arbitration agreements, they routinely use them themselves [LNL]
  • New U.S. Chamber papers on litigation trends: “Lawsuit Ecosystem II“; state supreme courts review;
  • Changes ahead for class action rules? [Andrew Trask]

For real liability reform, try freedom of contract

Six months ago the Delaware Supreme Court upheld the right of an enterprise to include a loser-pays provision in its bylaws, specifying that losing shareholder-litigants would have to contribute reasonable legal fees to compensate what would otherwise be loss to other owners. Since then there’s been a concerted campaign to overturn the ruling, either in the Delaware legislature or if necessary elsewhere. But as I argue in a new Cato post, allowing scope for freedom of contract of this sort is one of the best and most promising ways to avert an ever-rising toll of litigation. Contractually specified alternatives to courtroom wrangling have played a vital role, and are under attack for that very reason, in curbing litigation areas like workplace and consumer arbitration, shrinkwrap and click-through disclaimers of liability, and risk disclaimers at ballparks and elsewhere. (& Stephen Bainbridge).

To the extent America has made progress in recent years in rolling back the extreme litigiousness of earlier years, one main reason has been the courts’ increased willingness to respect the libertarian and classical liberal principle of freedom of contract. Most legal disputes arise between parties with prior dealings, and if they have been left free in those dealings to specify who bears the risks when things go wrong, the result will often be to cut off the need for expensive and open-ended litigation afterward.

More on the Delaware bylaw controversy: D & O Diary (scroll), Andrew Trask on state of the merger class action, WSJ Law Blog first and second, Daniel Fisher, and ABA Journal in June, Alison Frankel/Reuters (forum selection bylaws).

New York Times on pre-dispute agreements to arbitrate

From James Taranto’s “Best of the Web” Wall Street Journal column, under his recurring “Two Papers in One!” series:

  • “Buried in the fine print of most contracts for cellphones, health insurance and credit cards is a clause requiring that all disputes be decided by binding arbitration, rather than a court. Businesses love these provisions, because arbitrators act quickly and almost always rule in their favor, and many employers are requiring new hires to sign similar agreements. All of this sounds pretty unfair, but apparently not unfair enough for the Supreme Court, which has now made the arbitration process even more onerous.” — editorial, New York Times, June 27, 2010
  • “In lieu of litigation and jury trials, each of which is expressly waived, any dispute concerning, relating or referring to this Participation Agreement, the brochure, or any other literature concerning your trip or the Tour shall be resolved exclusively by binding arbitration in New York City, New York, according to the then existing commercial rules of the American Arbitration Association. Such proceeding will be governed by the substantive law of the State of New York. The arbitrator(s) and not any federal, state, or local court or agency shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, conscionability, or formation of this Participant Agreement, including but not limited to any claim that all or any part of this Participant Agreement is void or voidable.” — Times Journeys Terms and Conditions, NYTimes.com, 2014

Labor and employment roundup