RSSCategory: Court Decisions

Businesses souring on arbitration

May 7, 2012 | By | Reply More
Businesses souring on arbitration

The website Arbitration Nation has reported on the cognitive dissonance experienced by businesses when it comes to arbitration of commercial disputes. Based on a new survey, only 60% of companies arbitrated commercial disputes in 2011, compared to 85% in 1997. Why aren’t businesses clamoring to arbitrate their disputes with other businesses?

The most common reasons given by survey respondents (general counsel and senior corporate lawyers) for not using arbitration included: the difficulty of appeal, the perception that arbitrators tend to compromise, the concern that arbitrators may not follow the law, a lack of confidence in neutrals, and high costs of arbitration. The study, conducted through Cornell’s Survey Research Institute, was co-sponsored by Pepperdine’s Straus Institute for Dispute Resolution, Cornell University, and the International Institute for Conflict Prevention & Resolution (CPR). (Its results are not currently available on-line.)

Arbitration Nation noted that while businesses are increasingly avoiding arbitration, the United States Supreme Court is making it more making it increasingly difficult to avoid the application of harsh arbitration contracts. Of course, most of the new court holdings enforcing pre-dispute mandatory arbitration clauses victimize non-businesses, such as consumers, employees and victims of civil rights abuses. Arbitration Nation links to a new article by Thomas Stipanowich that proposes a rating and ranking system for arbitration processes. We already have ample evidence exempt these group from mandatory arbitration. It is palpably clear that big businesses are using mandatory arbitration to take advantage of consumers, employees and victims of civil rights abuses, using their disparate bargaining power. They are using “arbitration” as a method of gaining immunity for their illegal actions. They are doing this, even as they vote with their feet that they don’t like arbitration for themselves.

Instead of gathering more data, we completely carve out consumers, employees and civil rights plaintiffs from being required to arbitrate. Sure, give them the option of arbitrating a case, but only after a dispute has arisen; never force them into mandatory, binding, pre-dispute arbitration. What I have just described is the approach of the Arbitration Fairness Act.

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John Yoo is immune from civil suits based on torture invited by his memos

May 5, 2012 | By | Reply More
John Yoo is immune from civil suits based on torture invited by his memos

John Yoo, the Bush attorney who authored memos authorizing torture is immune from civil lawsuit invited by his memos, based on a recent ruling by the 9th Circuit Court of Appeals. This ruling is unsurprising, in that it comports with a disturbing trend. Glenn Greenwald explains:

[C]onsider these two facts:

(1) not a single War on Terror victim — not one — has been permitted to sue for damages in an American court over what was done to them, even when everyone admits they were completely innocent, even when they were subjected to the most brutal torture, and even when the judiciary of other countries permitted their lawsuits to proceed; and,

(2) not a single government official — not one — has been held legally accountable, either criminally or even civilly, for any War on Terror crimes or abuses; perversely, the only government officials to pay any price were the ones who blew the whistle on those crimes.

That is how history will record the behavior of American federal judges in the face of the post-9/11 onslaught of anti-Muslim persecution and relentless erosions of core rights.

The trend is further supported by a recent report that out of almost 1800 FISA requests (most for eavesdropping) filed by the federal government in 2011, none of them were denied. This statistic begs for the following commentary by Greenwald:

This is a perfect expression of how the federal judiciary, in general, behaves in the face of claims of National Security from the Executive Branch: as an impotent, eager rubber-stamping servant.

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Federal judiciary unmoved by CIA blatant misconduct

April 25, 2012 | By | Reply More
Federal judiciary unmoved by CIA blatant misconduct

Glenn Greenwald has documented more CIA abuse, this time with a nod of approval by the federal courts:

In November, 2010, the Obama DOJ — consistent with its steadfast shielding of Bush-era criminals from all forms of accountability — announced that the investigation would be closed without any charges being filed. Needless to say — given how subservient federal judges are to the Executive Branch in the post-9/11 era — the federal judge who had ordered the CIA to preserve and produce any such videotapes, Alvin Hellerstein, refused even to hold the CIA in contempt for deliberately disregarding his own order. Instead, Hellerstein — who, like so many federal judges, spent his whole career before joining the bench as a partner for decades in a large corporate law firm serving institutional power — reasoned that punishment for the CIA was unnecessary because, as he put it, new rules issued by the CIA “should lead to greater accountability within the agency and prevent another episode like the videotapes’ destruction.” In other words, as I put it in a Guardian Op-Ed about Hellerstein’s CIA-protecting decision: the CIA has promised not to do this again, so they shouldn’t be punished for the crimes they committed.

The story gets much worse, as Greenwald describes how Jose Rodriguez, is now gloating about how he destroyed the these torture videos. He is doing this with the view, apparently correct, that no law enforcement authority and no court is going to do anything about any of his misconduct.

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The doors to the courthouse are locked shut for victims of the U.S.

April 23, 2012 | By | Reply More
The doors to the courthouse are locked shut for victims of the U.S.

Glenn Greenwald reports an amazing and Kafkaesque statistic:

. . . it shows just how corruptly deferential American federal courts are to the Executive Branch when it comes to Muslims. One of the most amazing statistics of the last decade: not a single War on Terror victim — not one, whether foreign or American — has been permitted to proceed in an American court in an effort to obtain compensation for illegal treatment by the U.S. Government; instead, American courts have unanimously dismissed those cases at the outset, without reaching their substance. Even when everyone knows and admits that the U.S. Government abducted a totally innocent person and shipped him off to Syria to be tortured, as is true for Arar, American federal judges shut the courthouse door in his face, accepting the claims of the Bush and Obama DOJs that to allow the victim to obtain justice for what was done to him would be to risk the disclosure of vital “state secrets.” They accepted this Kafkaesque secrecy claim even after the Government of Canada published to the world a comprehensive report detailing what happened to Arar.

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FINRA arbitration abuse by the numbers

March 20, 2012 | By | 1 Reply More
FINRA arbitration abuse by the numbers

Dan Solin offers a disturbing inside view of FINRA arbitration. Given that it is binding, mandatory pre-dispute arbitration controlled by the industry being sued, it is not surprising that the table is tilted dramatically in favor of the financial industries and brokers. Here’s an excerpt from Solin’s article:

If you have an account with a retail broker, or are employed by one, you signed an agreement requiring you to submit all disputes to mandatory arbitration administered by FINRA. The idea of requiring investors and employees to arbitrate disputes before a tribunal appointed by the very industry being sued is deeply troubling. Because it deprives American citizens of their constitutional rights to access to the courtroom and trial by a jury of their peers, it has neither the appearance nor the reality of impartiality. Among others, Itestified before Congress and urged it to enact legislation prohibiting mandatory arbitration clauses as being fundamentally unfair.

A study I co-authored of more than 14,000 FINRA arbitration awards over a ten-year period found that investors with significant claims suing major brokerage firms could expect to recover only 12 percent of the amount claimed. It is not surprising that many investors required to submit to this process perceive it to be biased against them.

Note the $60,000 attorney fee award assessed against the man filing the arbitration claim described by Solin. Can you imagine many sane people exposing themselves to that sort of risk, especially when it is a rare court that would step in to reverse such an injustice? That’s what happened in the case Solin describes, but you’ll need to look long and hard to find other cases where a court disturbs a FINRA arbitrator’s decision.

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The rules of the game in the age of the “war on terror”

January 24, 2012 | By | Reply More
The rules of the game in the age of the “war on terror”

Glenn Greenwald notes several recent legal decisions, all of which accord with the following rules for deciding cases in the age of the war against “terrorism.”

The Rules of American Justice are quite clear, and remain in full force and effect:

(1) If you are a high-ranking government official who commits war crimes, you will receive full-scale immunity, both civil and criminal, and will have the American President demand that all citizens Look Forward, Not Backward.

(2) If you are a low-ranking member of the military, you will receive relatively trivial punishments in order to protect higher-ranking officials and cast the appearance of accountability.

(3) If you are a victim of American war crimes, you are a non-person with no legal rights or even any entitlement to see the inside of a courtroom.

(4) If you talk publicly about any of these war crimes, you have committed the Gravest Crime — you are guilty of espionage – and will have the full weight of the American criminal justice system come crashing down upon you.

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The Onion: U.S. Supreme Court rules opines that right is wrong

January 20, 2012 | By | Reply More
The Onion: U.S. Supreme Court rules opines that right is wrong

According to The Onion, The United States Supreme Court has ruled in the case of Right versus Wrong that right is wrong:

It is the opinion of this court that the Constitution was crafted in such a manner as to uphold and encourage practices that are not right and, ideally, are very wrong,” Justice Antonin Scalia wrote for the majority, which also in­cluded Justices Clarence Thomas, Samuel Alito, Anthony Kennedy, and John Roberts. “Despite the compelling case for goodness, truth, and justice made by our predecessors in the case of Right v. Wrong, we firmly believe that malice, dishonesty, and injustice were the framers’ original intent.

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Anatomy of a foreclosure case

January 18, 2012 | By | Reply More
Anatomy of a foreclosure case

Consider this description of a Florida foreclosure docket by the Orlando Sentinel:

Most of the borrowers — maybe 95 percent — don’t have representation,” said dispute-resolution expert Sandra Upchurch, who administered the state foreclosure mediation in Volusia County courts. “Many made bad decisions, and some loans have legitimate problems. But if borrowers have no lawyers, the cases aren’t being argued. And those cases are going to get opened and closed in 30 seconds, and those buyers don’t have a chance.

If you don’t believe this, go visit your own state’s foreclosure docket–except, wait! Most states have non-judicial foreclosure. They don’t even require a judge to review foreclosure sales. And this is in the context of a system where most home loans have seriously defective paperwork. These are numerous cases out there where a good lawyer can successfully fight off the foreclosure, yet 95% of foreclosed homeowners don’t have lawyers.

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Lesson learned about rationality, perhaps.

December 12, 2011 | By | 2 Replies More
Lesson learned about rationality, perhaps.

I thought I was different.

I have a well-documented history of being more skeptical than the average person. At this website, for instance, I have vigorously attacked the hypocrisy of all politicians, regardless of party. In the spirit of letting the chips fall and seeking the truth, even if inconvenient, I’ve often taken positions contrary to family, friends and “country.” I tend to not be a joiner.

I have long-agreed with David Hume that “Reason is, and ought only to be the slave of the passions, and can never pretend to any other office than to serve and obey them.” Therefore, I tend to be on-guard regarding runaway emotions. I also agree with Jonathan Haidt’s conclusion that humans function like tiny lawyers attempting to control big emotional-laden elephants upon which they ride.

The observations of Hume and Haidt dovetail well with the findings of Antonio Damasio, who carefully examined rationality. See Descartes’ Error: Emotion, Reason and the Human Brain. Phineas Gage, a 19th century railroad worker who suffered brain damage to his pre-frontal cortex, couldn’t no longer connect emotion to decision-making. He’s what Damasio discerned from the evidence about Gage (and about modern-day people who suffered damage to the pre-frontal cortex): He “could no longer set priorities or make decisions. He had no sense of the relative importance of any situation.” His accident made him “rational.” Damasio further noted that this pure rationality “is helpless to make decisions; it paralyzes us. In fact, he proclaimed that “Rationality” is the way “brain-damaged people make decisions.”

I’ve known all of this for a long time, and I try to stay on guard that when I write that I will keep emotions in check enough that I can be seen as a trusted source of information. That’s why what I’m about to mention is embarrassing and frustrating to me.

Back on April 28, 2011, the night I read the U.S. Supreme Court Case of AT&T v. Concepcion, I became angry at the majority opinion, and I steamed full speed ahead and published an angry post at this blog (since deleted, for the reasons discussed below). I stand by many of the concerns I raised in that post, including the following:

[More . . . ]

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