David L. Noll, Associate Professor of Law at Rutgers Law School, has published “Deregulating Arbitration,” Loyola Consumer Law Review, Vol. 30, 2017, Forthcoming.
Continue reading...On Monday, Consumer Financial Protection Bureau (“CFPB”) Director Richard Cordray released a letter addressed to the President of the United States urging him to veto House Joint Resolution 111.
Continue reading...A New York federal judge has dissolved a temporary restraining order and ruled the National Football League Players Association (“NFLPA”) failed to establish a Dallas Cowboys running back’s controversial six-game suspension was fundamentally unfair.
Continue reading...Katherine V.W. Stone, Arjay and Frances Fearing Miller Distinguished Professor of Law at the University of California, Los Angeles (UCLA) – School of Law, has published “The Bold Ambition of Justice Scalia’s Arbitration Jurisprudence: Keep Workers and Consumers Out of Court,” 21 Employee Rights and Employment Policy Journal 189 (2017); UCLA School of Law Public Law & Legal Theory Research Paper No. 17-41.
Continue reading...Professor David Horton, University of California, Davis, School of Law, has published “Clause Construction: A Glimpse into Judicial and Arbitral Decision-Making,” Duke Law Journal, Vol. 68, Forthcoming.
Continue reading...Nancy Welsh, Professor of Law at the Pennsylvania State University Dickinson School of Law recently authored “I Could Have Been a Contender: Summary Jury Trial As A Means to Overcome Iqbal’s Negative Effects Upon Pre-Litigation Communication, Negotiation and Early, Consensual Dispute Resolution,” 114 Penn St. L. Rev. Vol. 114:4, No. 1149, 2010. In her article, Professor Welsh argues that recent U.S. Supreme Court decisions may be undermining any motivation for institutional defendants to negotiate or mediate with civil rights claimants. She suggests that courts in some cases consider conducting an expedited trial before an advisory jury “followed by negotiation or mediation between the parties and their lawyers” in order to maintain a robust public forum and defray costs. Here is the abstract: With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate – or even communicate with and listen to – such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive marginalized claimants – and our society – of alternative, effective avenues for the airing and resolution of disputes with powerful institutional players. Ironically, it was just this sort of deprivation that led the Supreme Court to announce its expansive vision of notice pleading in Conley v. Gibson. Conley foretells the need for our courts to maintain a robust public forum for those who are marginalized by the default procedures of normal life – not only to provide redress to the parties directly involved in particular disputes but because the viability of such a forum has the indirect and salutary effect of forcing institutional players to find a way to sufficiently approximate the fair dialogue and resolution modeled in our courts. In an attempt to acknowledge legitimate concerns regarding the inefficiency and costs of today’s civil litigation process in some cases, while still protecting the courts’ essential role in providing a forum for marginalized parties, this Article will suggest that courts take a second look at the summary jury trial, an expedited form of trial conducted before an advisory jury and followed by negotiation or mediation between the parties and their lawyers. Relatively early and appropriate use of this process could effectively prompt resolution and dialogue – i.e., private dialogue between the parties before the process is to occur; a stylized form of public dialogue during the trial phase of the process itself; and another private dialogue, potentially with assistance from a judge or mediator, after the advisory jury has been dismissed. The article may be downloaded here (without charge) from Social Science Research Network. What are your thoughts? Technorati Tags: ADR, law, mediation, arbitration
Continue reading...by Holly Hayes The Congressional Budget Office (CBO) issued an analysis of the effects of tort reform proposals on health care spending. The CBO estimates that implementing a nationwide package of tort reform proposals would result in reductions of health care spending of about 0.5 percent or about $11 billion in 2009. This figure represents a reduction of 0.2 percent from lower medical liability premiums and a 0.3 percent reduction from less utilization of health care services. CBO’s Analysis of the Effects of Proposals to Limit Costs Related to Medical Malpractice (“Tort Reform”) Today (October 9, 2009) CBO released a letter updating its analysis of the effects of proposals to limit costs related to medical malpractice (“tort reform”). Typical legislative proposals for tort reform have included caps on awards for noneconomic and punitive damages, rules allowing the introduction at trials of evidence about insurance payments and related sources of income, statutes of limitations on suits, and replacement of joint-and-several liability with a fair-share rule. Tort reform could affect costs for health care both directly and indirectly: directly, by lowering premiums for medical liability insurance; and indirectly, by reducing the use of diagnostic tests and other health care services when providers recommend those services principally to reduce their potential exposure to lawsuits. Because of mixed evidence about whether tort reform affects the utilization of health care services, past analyses by CBO have focused on the impact of tort reform on premiums for malpractice insurance. However, more recent research has provided additional evidence to suggest that lowering the cost of medical malpractice tends to reduce the use of health care services. CBO now estimates that implementing a typical package of tort reform proposals nationwide would reduce total U.S. health care spending by about 0.5 percent (about $11 billion in 2009). That figure is the sum of a direct reduction in spending of 0.2 percent from lower medical liability premiums and an additional indirect reduction of 0.3 percent from slightly less utilization of health care services. (Those estimates take into account the fact that because many states have already implemented some of the changes in the package, a significant fraction of the potential cost savings has already been realized.) Enacting a typical set of proposals would reduce federal budget deficits by roughly $54 billion over the next 10 years, according to estimates by CBO and the staff of the Joint Committee of Taxation. That figure includes savings of roughly $41 billion from Medicare, Medicaid, the Children’s Health Insurance Program, and the Federal Employees Health Benefits program, as well as an increase in tax revenues of roughly $13 billion from a reduction in private health care costs that would lead to higher taxable wages. Technorati Tags: Tort Reform, Healthcare President Obama, arbitration, ADR, law, mediation Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at: holly@karlbayer.com.
Continue reading...By Holly Hayes The American Hospital Association (AHA) posted this statement on their website in response to the Senate Finance Committee vote on October 13, 2009, on the health care reform bill. The Senate Finance Committee today (October 13, 2009) voted 14-9 to approve health care reform legislation that would expand health coverage to 91% of U.S. residents. The bill received one Republican vote, from Sen. Olympia Snowe (R-ME). According to the Congressional Budget Office, the bill would cost $829 billion over 10 years, is fully paid for, and reduces the federal deficit by $81 billion. It would create non-profit health care co-ops instead of a public plan option to compete with private insurance plans. The co-ops would negotiate payment rates with providers. ‘Today, the Senate Finance Committee reached an important milestone on the road to health reform,’ said Rich Umbdenstock, AHA’s president and CEO. ‘Like Chairman Baucus and other members of the committee, we remain concerned about the need to further expand the level of coverage in the bill. As efforts begin to merge the two Senate bills, we will work to ensure that even more of the uninsured have health care coverage.’ The American Nurses Association (ANA) issued a statement regarding the Senate Finance Committee vote supporting inclusion of the public plan option in the health care reform bill. The American Medical Association (AMA) website did not have a response to the October 13, 2009, Senate Finance Committee vote on the health care reform bill. The AMA does list the elements necessary for health care reform, emphasizing the need for medical liability reforms to reduce defensive medicine costs. The AMA website identifies the seven critical elements they find necessary “to improve access to affordable, quality care and reduce unnecessary costs in the current system:” Health insurance coverage for all Americans Insurance market reforms that expand choice of affordable coverage and eliminate denials for pre-existing conditions Assurance that health care decisions will remain in the hands of patients and their physicians, not insurance companies or government officials Investments and incentives for quality improvement, prevention and wellness initiatives Repeal of the Medicare physician payment formula that would trigger steep cuts and threaten seniors’ access to care Implementation of medical liability reforms to reduce the cost of defensive medicine Streamlining and standardizing of insurance claims processing requirements to eliminate unnecessary costs and administrative burdens The challenges in our health care system are many and complex. Enactment of the above policies will create the foundation for a stronger, better performing health care system, improve access to affordable, high-quality care and reduce unnecessary costs. Further, those who are currently insured, including Medicare patients, and those who are uninsured will all benefit from greater security and stability. The AMA and our individual members are working hard to improve health care delivery and quality through a broad range of initiatives to promote best practices and reduce unnecessary costs. Technorati Tags: Tort Reform, Healthcare President Obama, arbitration, ADR, law, mediation Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at: holly@karlbayer.com.
Continue reading...Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.
Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.