If you attended Venable’s Washington, D.C., summer recruiting reception for law students in June or DLA Piper’s Boston associate recruiting event in March, someone may have handed you a flyer on the way in about the big firm’s mandate that staff and associates sign arbitration agreements as a condition of employment.
Kmart — and its approximately 300 local jobs — is still kicking.
Sears Holdings Corp., which is the parent company for both Sears and Kmart, agreed Tuesday to consider a revised takeover bid that would stave off a complete shutdown of Sears and Kmart stores across the country. The mega bankruptcy case has major Lawrence implications because Kmart operates a Lawrence distribution center that historically has employed about 300 people and paid more than half a million dollars a year in local property taxes.
Not all arbitration agreements are created equal. Despite a series of U.S. Supreme Court decisions bolstering the strength of contractual mandates to force workplace disputes into arbitration, judges keep them in court when the agreements have holes.
During Justice Brett Kavanaugh's confirmation process this summer, public scrutiny focused on sexual assault allegations and his position on Roe v. Wade. But where he might land on important access to justice cases that come before the high court has received little attention in comparison.
A number of rulings in the civil arena have stoked fears among liberal groups that the jurist will be more inclined to favor business plaintiffs over consumers, disfavor class action and pro se plaintiffs, and generally limit the access that common people have to the courts.
There must be a shift in the universe if all of the living former North Carolina governors, both Democratic and Republican, come together to take a stand against the actions of the General Assembly.
What exactly is that cosmic force? A constitutional amendment that would take away the governor’s sole power to appoint judges during vacancies, and hand it over to the General Assembly.
LAWRENCE — After a hard-fought political battle so close that an evenly divided U.S. Senate required the tie-breaking vote of Vice President Mike Pence, President Donald Trump recently signed the repeal of a Consumer Financial Protection Bureau rule that would have prevented banks from using arbitration agreements to insulate themselves from class-action lawsuits. This news shows the enduring divisiveness of class actions — in which a lawyer combines claims of many consumers — and the spillover effects on arbitration, said University of Kansas law professor and arbitration expert Stephen Ware. His forthcoming article in the Harvard Negotiation Law Review argues for a centrist approach to arbitration law that would remove arbitration from what he calls the “class-action battlefield.”
“Powerful interest groups fighting about class actions is the longstanding norm,” Ware said, “but newer is the centrality of that fight to debates about arbitration law.”
The CFPB studied consumer arbitration for years and could have greatly restricted it but instead chose to issue a rule that would significantly affect only one aspect of it: class actions.
Arbitration’s connection to class actions grew in 2011 when the Supreme Court’s conservative majority approved arbitration agreements requiring disputes to be resolved individually, rather than as part of a class, even though similar “class waivers” in nonarbitration agreements were rarely enforced. The CFPB rule — issued by a bureau directed by a Democrat — would have ended enforcement of arbitration agreements’ class waivers had it not been overridden by the Republican Congress and president.
The predictably partisan pattern of Republicans and business groups opposing class actions, while Democrats and progressive groups support them, increasingly extends to arbitration debates, according to Ware’s research. In contrast, his centrist position on arbitration would not take sides on whether to enforce arbitral class waivers but instead would instruct courts to enforce arbitral class waivers only when they would enforce a class waiver in a similar nonarbitration contract. This would allow courts in different states to have different standards about when to enforce class waivers and would allow such standards to evolve over time as views about class actions develop. Most beneficially for arbitration law, Ware believes, this approach would allow arbitration law to stop choosing sides in the long interest group fight over class actions, as arbitration law would simply adopt whatever approach other areas of law take to class waivers.
More broadly, Ware’s article in the Harvard Negotiation Law Review is the third in a trilogy arguing for a centrist approach to consumer arbitration law, in contrast with both current conservative arbitration law and progressive proposals to prohibit consumer arbitration agreements entirely.
“The law has been dealing for generations with a variety of provisions on consumers’ form contracts,” Ware said. “Few people want courts always to enforce all the words on these forms, and few people want courts never to enforce any of those words. Most people want the law to keep finding a happy medium.”
Courts presumptively enforce most terms on consumer contracts in most cases but sometimes find a particular provision “unconscionable,” or overly harsh, and thus unenforceable. Also, state and federal regulatory agencies such as the Federal Trade Commission and CFPB sometimes prohibit contract terms harsh to consumers.
“The CFPB apparently decided an agreement to arbitrate is not necessarily harsh to consumers,” Ware said. “And for good reason. The Bureau is receptive to the standard economic argument that arbitration agreements tend to lower businesses’ costs and some of these savings are passed through to consumers in the form of lower prices. In addition, the most relevant empirical evidence does not show consumers faring worse in arbitration of one-on-one disputes than they do in litigation of such disputes.”
The better-documented disparity between arbitration and litigation, Ware said, is the potential for a class action.
"As Florida looks to revise its Constitution, it might do well to switch up the selection and retention process for Supreme Court justices, professors argued at the Florida Bar Convention in Boca Raton.
That's because research shows judicial nominating commissions like Florida's, with some members chosen by the bar, tend to pick judges who are more liberal than the state's population.
"Stephen Ware, professor of law, has written 'Principles of Alternative Dispute Resolution,' now in its third edition. The book is a concise guide to the three main processes of what lawyers call 'Alternative Dispute Resolution,' or 'ADR': arbitration, negotiation and mediation.
LAWRENCE — A University of Kansas professor has authored a new edition of a book designed to help law students and lawyers develop important practical skills and learn the law governing disputes resolved outside of court.
Stephen Ware, professor of law, has written “Principles of Alternative Dispute Resolution,” now in its third edition. The book is a concise guide to the three main processes of what lawyers call “Alternative Dispute Resolution,” or “ADR”: arbitration, negotiation and mediation.
“Lawyers call these three processes ‘alternative dispute resolution’ because they are our most common alternatives to courts deciding cases,” Ware said. “While cases resolved by courts — judges and juries — typically get the most media attention, a great many cases are resolved by arbitrators, or by the disputing parties’ agreement reached through negotiation or mediation.”
Arbitration is like litigation in court because both arbitration and litigation allow disputing parties and their lawyers to present evidence and arguments to neutral decision-makers. However, those decision-makers in arbitration are neither judges nor jurors, but arbitrators chosen by the parties and usually paid by the parties. So an arbitration is basically a private-sector court created by the disputing parties’ contract.
Negotiation is the most common process of dispute resolution and is widely used by lawyers to settle cases that would otherwise be resolved by litigation or arbitration.
“Negotiation skills are among the most important skills a lawyer can have,” Ware said.
Mediation is a closely related skill because a mediator is a neutral person who assists parties in reaching a negotiated settlement.
“The idea behind increasing use of ADR was that courts were too crowded, litigation was too expensive, and that hopefully through alternative methods we could get better, cheaper resolution of disputes, or both,” Ware said.
The book has been used as the primary text for Alternative Dispute Resolution courses in several law schools. The book is suited for that role because it clearly and concisely explains the theory, practice and legal doctrine relating to arbitration, negotiation and mediation. This enables law school instructors using the book to save time “learning the law” so more class time can be devoted to students working with the law to develop practical skills in an experiential manner. For example, many ADR courses involve students negotiating or mediating the settlement of a hypothetical case or drafting a hypothetical arbitration agreement.
Ware emphasizes this sort of skill-building when he teaches ADR and, more broadly, in his other teaching. He also chaired a KU Law committee that led the law school to curricular innovations expanding opportunities for law students to develop a range of practical skills through experiential learning.
“This book is part of that effort to keep legal education practical and serve students by preparing them for their careers, and to serve practicing lawyers as well,” he said.
The three major processes of alternative dispute resolution are very pervasive in law, which makes knowledge of them useful to practicing lawyers in nearly every field and specialization of law. For example, the book is a quick resource for practicing lawyers looking to reach a negotiated settlement, whether in business, family, personal injury or numerous other areas of law. As a research tool, the book can introduce lawyers to areas of alternative dispute resolution they may not be familiar with, such as confidentiality requirements in mediation, and point them to relevant statutes and court decisions in those areas to help set the foundation for their research.
“Good legal research often begins with ‘I need a concise overview of the big picture of a given area of law,’” Ware said. “Then it moves to ‘I need leads to find the law in my jurisdiction about my specific legal issue.’”
Ware’s book provides both the concise overview and the leads for further research.
The new edition expands largely on arbitration. As international business has grown in recent years, international arbitration has grown as well. In addition, arbitration of consumer and employment disputes has grown and become increasingly controversial. The Supreme Court and other courts across the country have issued a number of decisions in the area, and the book has updated its research to reflect the changes and new rulings.
Ware has written extensively on ADR for more than 20 years and said seeing the many connections between ADR and other areas he has expertise in — such as contract, consumer, commercial and bankruptcy law — make alternative dispute resolution an especially rewarding area of law in which to work.
“One of the great, fun things about my career is the ability to teach a wide variety of areas and write on a wide variety as well, to be able to view law as a whole rather than focusing more narrowly,” Ware said.
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