Business Conflict Blog

Prof. Thomas J. Stipanowich  of Pepperdine University School of Law has come out with a smashingly responsible analysis of the most recent Supreme Court arbitration cases.  In his article, forthcoming in the American Review of International Arbitration, Stipanowich suggests that the three recent cases — Stolt-Nielsen, Rent-A-Center and AT&T Mobility – constitute a new “trilogy” of the stature of the historic Steelworkers cases in 1960.  But he urges that the recent trilogy of cases are flawed in reason, devoid of emprical grounding, and potentially harmful to the development of reasoned and just public arbitration policy.

Stipanowich is critical of the Court’s analysis, asserting rather than deducing “federal substantive law” under the Federal Arbitration Act as the basis for its outcomes.  He suggests that these references to such “substantive law” are “divined” or “discerned” rather than being the product of clear legal analysis, and that the Court’s avowed strong public policy concern to enforce arbitration agreements at times leads to outcomes clearly at variance with the Act. Read more »

Tags: Arbitration, Public Policy

A highlight of the 2011 ABA Annual Meeting in Toronto was a session on “Wikileaks, National Security and Free Speech.”  Moderated by Devon Chafee, Legislative Counsel for the American Civil Liberies Union, the panel boasted McInnes Cooper partner and privacy expert David T.S. Fraser; Charles D. Tobin of Holland & Knight; Professor Steve Vladeck of American University’s Washington College of Law; and Lee Williams, Assistant General Counsel to the Cable News Network Inc. Read more »

Tags: Add new tag, Public Policy

Retired Magistrate Judge Wayne Brazil was an innovative, dedicated and creative contributor to the growth of court-connected ADR in the 1990s up until his recent retirement.  On June 3, he honored the New Jersey State Bar with a keynote speech at the annual New Jersey “ADR Day,” and his remarks were instructive and inspiring.

Denying that he had “anything new to say to experienced mediators,” Brazil instead posed the questions: What can mediators contribute to shaping the future?  How does court-mandated mediation fit in our system of justice?  Is it worth the expenditure of time, money and patience for able members of the bar to serve in court-mandated mediations? Read more »

Tags: Courts, Public Policy

The Supreme Court has ruled (again) that state laws purporting to condition the enforceability of arbitration agreements on grounds not ennumerated in Section 2 of the Federal Arbitration Act are themselves unenforceable on Supremacy grounds.  I teach that principle in my class using Southland v. Keating, and now I can use this more recent case.

Many smarter and more sophisticated students of arbitration law will provide commentary on the AT&T Mobility decision, but I was struck by an article in the same day’s New York Times noting that, after waiting nine years, the family of Mark Bavis, a passenger on one of the planes that rammed into the World Trade Center, is about to go to trial in its wrongful death suit against United Airlines and other defendants.

What’s the link?  Both claimants were offered full reimbursement for their loss.  Both rejected the offer — not because they thought it inadequate, but because they wanted to prove something other than damages. 

What is it that Americans seek, in the expensive, protracted and uncertain world of the courts, when they don’t seek damages for their injuries, but proceed with the horrors of litigation litigation anyway?

Read more »

Tags: Arbitration, Courts, Public Policy