Image: zimmytws/shutterstock.comArbitrator of the World
I’ve long wanted to understand and maybe write about international commercial arbitration. It’s of enormous economic importance and hugely interesting as a matter of legal theory—especially if you’re skeptical of legal positivism (as I am) and fond of contractual arrangements and competition among legal systems (ditto). The American system, post-New Deal, traps commercial actors in multiple hostile legal forums: that’s Erie Railroad, which is organized hell. The international commercial system seems to be that parties choose an impartial, exclusive forum by contract, which sounds heavenly by comparison. How exactly does that work? Unfortunately I’m no expert, and unlikely to become one.
The Connection Between Individual Liberty and Article III Courts
On January 14, the Supreme Court heard oral arguments on an issue that may seem somewhat dry and technical to the average person, whether parties to a bankruptcy case can consent to have a Bankruptcy Judge enter a final order resolving their claims in a bankruptcy case. Contrary to the seemingly narrow and special nature of the issue, however, the outcome of the case could have profound implications for individual rights and the administration of justice in the federal courts.
Reforming Class Action Abuse
This Liberty Law Talk is with Ted Frank on reforming class action litigation and, in particular, the settlements plaintiffs receive under the current system. Frank, the founder of the Center for Class Action Fairness, argues that class-action suits contribute little to plaintiffs and substantially benefit only their lawyers. Monitoring and agency problems reign because most plaintiffs lack the incentives to ensure that the class's lawyers are actually representing their interests and not the lawyer's monetary desires. We also discuss the turn to arbitration by companies as an exit from class actions and Frank's work that contests egregious attorney fee awards…
Friday Roundup, June 28th
Arbitration has obviously been in the news lately with the Court recently upholding in America Express v. Italian Colors that arbitration clause class action waivers are enforceable despite the high costs of bringing an individual claim in many instances. In our Books section this week, Jim Chen's essay "Arbitration as an Article of Constitutional Faith" reviews Peter Rutledge's Arbitration and the Constitution. Chen focuses on the tension between the procedural rights of the Constitution and arbitration itself. David Henderson at Econ Lib provides an interesting review of prison sentencing reform in unlikely places. Roundup of Windsor analysis: Randy Barnett, Sandy Levinson, Michael…
Arbitration as an Article of Constitutional Faith
Scarcely any legal question arises in the United States that is not resolved, sooner or later, through arbitration. If Alexis de Tocqueville could survey contemporary American legal culture, he would rub his eyes with amazement at the privatization of adjudication across a wide swath of issues previously committed to judicial resolution. Cf. Alden v. Maine, 527 U.S. 706, 807 (1999) (Souter, J., dissenting); Federal Maritime Comm'n v. South Carolina State Ports Auth., 535 U.S. 743, 755 (2002). From trade disputes posing serious questions of economic diplomacy to consumer contracts adhering to cell phones and credit cards, mandatory arbitration has displaced…
