Differences between Adjudication and Arbitration
(according to Yeazell, Scalia, others)
- Parties may choose the arbitrator.
- Award is essentially final and not subject to further challenge.
- Parties are permitted to design their own procedure.
- CAN be less expensive than adjudication.
- Arbitration is more private than ordinary adjudication.
- Arbitrator may decide more "softly" than a court.
- No jury trial right.
*Note: Some are pros and some are cons depending on the party
Federal Arbitration Act (FAA)
9 U.S.C. §§ 2 et seq., enacted in 1925
§2 - substantive law broadly declaring agreements to arbitrate valid as a matter of federal law: "valid, irrevocable, and enforceable" - per Allen except when the contract is unenforceable due to duress, etc.
§3 - tells the court what to do if a party, in spite of arbitration, instead files a lawsuit (suit will be stayed til after arbitration is completed)
§4 - tells the federal courts what to do if a party neither invokes arbitration nor files suit - you petition the FEDERAL court. if no diversity or statutory jurisdiction then you go to state court
Maybe the arbitrator will split the difference right down the middle. "Splitting the baby" - Allen
Ferguson v. Countrywide Credit Industries, Inc.
Ferguson, an employee of Countrywide, filed a sexual harassment, retaliation and hostile work environment complaints in district court against Countrywide and her supervisor, despite having signed an arbitration agreement as a condition of her employment that required arbitration of an claims against Countrywide.
Appeal of district court's decision denying Countrywide's petition to compel arbitration.
Is an agreement to arbitrate employment claims unconscionable?
Yes. Under California law, there must be both a procedural and substantive element of unconscionability in order to render a contract unenforceable under the unconscionability doctrine, although the elements need not be present in the same degree.
Per Allen: One Sided Issues
- Countrywide had more rights to bring cases to arbitration
Carter v. Countrywide Credit Industries, Inc.
The Carter Court discussed only briefly one procedural opportunity available in litigation but not or not consistently in arbitration: class actions. The Carter Court, citing a Supreme Court case involving a different statue, ruled that the inability to proceed as a class in arbitration is not a sufficient basis on which to find arbitration inadequate or unconscionable.
Sever the bad parts of the agreement is the best and most preferred way.
Arbitration is a bad thing: b/c we like broad discovery, following the rules, etc.
True or False
You represent a client in a consumer credit card dispute with a company that uses National Arbitration Forum (NAF) arbitrators per a valid K. You learn that they decide for the credit card company 99.9% of the time and that they are routinely repeat judges who have worked for NAF many times. You can avoid arbitration.
True. Although it is conceivable, there would need to be other factors to show one sidedness and unconscionability.
You represent a woman who has sued Hooters for discrimination and hostile environment. Hooters
Part 1: Argument would prevail.
Part 2: Argument would prevail
Is it true that arbitration guts the rights of parties in discrimination, consumer and other areas which are based on statutes?
(Ferguson v. Writers Guild of America, West)
Yes, when parties agreed to submit the issue to arbitration and when the arbitration was held in accordance with the rules established by the agreement.
Would the F.v.CW contract have been unconscionable if F had an opportunity to negotiate it?
Is there a federal law of contracts?
No. Only state laws.
False. Fees and cost are so great in arbitration.
2nd CW case
False. As a general matter nothing says that.
False. State laws have to apply to all cases not just arbitration cases.
False - Scalia
10 Takeaways About Arbitration
1. Federal Courts favor
2. Ability to choose someone with expertise
3. Compel arbitration under Section 4 of FAA
4. Ability to Limit Discovery (can set the procedural terms)
5. No Appeals
What is the effect of the savings clause? 9 U.S.C. § 2
Valid, irrevocable, enforceable
Examples of One Sidedness
Fees - if you can't vindicate a right b/c the fees are so much higher in arbitration than in federal courts
Employer has right to bring more claims than employee (i.e. Countrywide)
One side has some type of appellate rights
One side picks the arbitrator
One party dictates the terms of the contract including the terms of the arbitration agreement to the other party on a "take-it-or-leave-it" basis
Trends in Appeals
Over the past 50 yrs federal civil appeals have increased at a rate of one and one-half times faster than the increase in lawsuits filed.
Most cases affirmed in appeals; between 80-90% in federal system and 75% in the state intermediate appellate courts
Difference between American and European jurisprudence regarding appeals?
American courts operate with a heavy presumption that the trial court decision is correct.
Who can appeal?
NOT the U.S. courts
Parties to the lawsuit who have not settled who have experienced concrete adversity.
Adverse Judgment - A judgment granting relief different from what one requested;
If the relief sought by the party was identical to the relief awarded, no appeal EVEN IF the appellate court thinks the trial court erred.
If the rejected claim or defense would have entitled party to more or different relief (to a different judgment), then appeal lies.
Tenant is injured when she slips in a pool of water formed in her apartment resulting from a leaky roof. She sues landlord for personal injuries, invoking two theories under which the landlord had a duty to repair the roof - a duty arising under the lease, and a duty arising under the municipal housing code
No, they cannot appeal.
Yeazell Question p. 675 #1a
Yes, can be appealed b/c there is concrete adversity.
(Yeazell Question p. 675 #1b)
Aetna Casualty & Surety Co. v. Cunningham
When as a practical matter, the denial of any one claim results in the plaintiff not getting the relief to which it claims to be entitled, whether in the amount or in the quality of the judgment, it has the right to be heard on
Losing Party Principle - comes under tension when a party has won the judgment but where a theory rejected by the trial court will have collateral consequences
Mootness precludes an appeal except when issue is likely to recur, Sosna v. Iowa
- One may not appeal from a judgment when circumstances have changed in such a
way that relief is no longer possible. This doctrine affects appeals and the
justicability (Yeazell word) b/c the mootness undercuts the existence of an actual case or controversy required by Article III of the Constitution.
Exceptions to Mootness
1.Plaintiff's claim has been satisfied despite an adverse ruling by the lower court, but the question raised by the claim is likely to recur, and the application of the mootness doctrine would effectively prevent the question from receiving appellate review. See Sosna v. Iowa (p. 677 note 3a)
2. Mootness can result from settlement. The settlement doesn't moot the appeal,and on being notified, the appellate court will dismiss the case w/o deciding the issues raised by the appeal
What can the legislature do to make your appeal more difficult if you lose a case?
See Bankers Life Case and Lindsey Case
Supreme Court has never held that there is a constitutional right to appeal a civil case, so a jurisdiction could in theory either forbid civil appeals absolutely or, less dramatically, make all civil appeals a matter of discretion rather than of right.
If the judge rules in your favor and you are the appellee who made the right arguments below, do you have to defend the judges decision or do you just have to defend the judgment?
No obligation to defend the decision. PERIOD
In Forma Paupersia
Latin term meaning "in the manner of a pauper". Allowing a poor person to bring suit without liability for the costs of the suit.
Liberty Mutual Insurance Co. v. Wetzel
F: Liberty Mutual Insurance Co. appealed the grant of partial summary judgment against it, and the Supreme Court now considers the jurisdiction of the appellate court.
I: Does a Court of Appeals have jurisdiction to review the granting of partial summary judgment?
H: No jurisdiction b/c there was no final judgment rule.
Rationale: A final judgment is one rendered after all possible issues have been determined by a trial court. Stated differently, a final judgment ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.
Final Judgment Rule
28 U.S.C. §1291
Your chances of winning in
the court of appeals are 50-50 if you lose below.
False. 10% chance of winning
American courts of appeals assume a supervisory role by monitoring
case dispositions below.
Administrative law and plain error rule are very rare exceptions.
A sues B, alternatively, for violations of the federal fair housing law
and the D.C. Human Rights law. A
gets all the relief she requested in the complaint from the fair housing
claims, but no relief on the Human Rights claims. A is distressed because she
wanted to make law on the human rights area and throw a big party to celebrate.
She can appeal the HR issues.
False. No concrete adversity.
True/False A sues B for possession based on non-payment of rent. B loses and appeals but is evicted during the appeal. A argues that B’s appeal is moot and therefore should be
Plaintiff's claim has been satisfied despite an adverse ruling by the
lower court, but the question raised by the claim is likely to recur, and the
application of the mootness doctrine would effectively prevent the
question from receiving appellate review. See Sosna v. Iowa (p. 677 note 3a)
If a party objects to a ruling of the court, the party must make a
formal “exception” to preserve the matter on appeal.
False. Just make the objection.
True/False If the judge made the right
decision for the wrong reasons, then appellee can defend the judgment, but
ignore the court’s reasoning.
If the law changes during the pendency of an appeal, then generally the appellant may rely
on the new law if it is helpful to A, even if he didn’t argue it below.
False. Only if the new law changes due process rights. (Sufficiently fundamental)
True/False Since the right to appeal is not based on the Constitution, several
states do not allow appeals in civil cases.
True/False The D.C. City Council would run afoul of the Constitution if
it passed legislation adding a surcharge of 25% to a party unsuccessfully
appealing a money judgment.
Assume P sues D for civil rights violations and D prevails
below. If P prevails on appeal,
then P will be entitled all attorney’s fees, including hours spent in appellate
True/False Assume P sues D for breach of contract. D prevails below and the court
dismisses P’s appeal on a motion for summary affirmance. In its order, the
court concludes that the appeal was utterly meritless. D is entitled to attorney’s fees for
the appellate litigation.
A way to tell the appellant, "your case is bullshit."
True/False The final judgment rule effectively eliminates appellate review of most
Rulings: objection denied, blah, blah, blah
“A-Rod” and topical arbitration issues. Lingering arbitration issues and summary.
A-Rod is a baseball player who used drugs and his case is in arbitration with no rights to appeal. This is fair because A-Rod had a choice to negotiate his contract, a choice about whether or not to sign it, and chose to agree with its terms.
Merchants entered into an agreement with a credit card company which required them
to resolve disputes by arbitration and provided they did not have the right to arbitrate on “a class action basis.” The merchants nonetheless
filed a class, anti-trust action against the credit card company and argued that the agreement was unenforceable because the costs of litigation (expert witnesses at least several hundred thousand) in arbitration would be far more than a P could recover in arbitration. ($40,000 if damaged trebled.) Stated another way, they argued that the
costs of litigation would preclude them from vindicating a statutory
They would lose because they agreed to waive their right.
See Scalia's opinion in the AMEX case.
When can one appeal?
After judgment has been made.
A case on the merits is over.
See Appellate Rule 4
Alternatives to the Final Judgment Rule
COD - Collateral Order Doctrine
1. Issue must determine the disputed question
2. Resolve an important issue completely separate from the merits of the action
3. Be effectively unreviewable on appeal from a final judgment
Injunctions Excludes TRO b/c of the "temporary" time frame
Mandamus (not an appeal)Orders the public official to perform an act required by law (Judge, do your job!)
Also used jurisdictionally for GROSS abuses of discretion.
Interlocutory Appeals3 Requirements
1. Involve a controlling question of law to which there is a substantial ground for difference of opinion
2. Certified by District Court first then certified by Appellate Court
3. Must advance ultimate termination of litigation
54(b)Requires that the court expressly determines that there is "no just reason for delay" in making the decision immediately appealable. So, if the court certifies under Rule 54(b), the loser can immediately appeal. Used in a case involving several plaintiffs against a single defendant.
Lauro Lines s.r.l. v. Chasser
Decedent's estate and other plaintiffs sued one defendant - Lauro Lines. Lauro Lines moved to dismiss based on forum selection. District Court and Court of appeals denied b/c the ticket didn't give reasonable notice to passengers that they were waiving the opportunity to sue in a domestic forum.
Lauro Lines tried to appeal under COD (alternative to final judgment rule) but they didn't meet the 3rd requirement.
H: Except in rare circumstances, an appeal can only be made after a judgment is final; claims that the suit was required to be filed in a different court are no exception. An interlocutory order denying a motion to dismiss based on a contractual forum-selection clause is not appealable under COD.
Give concrete examples of a valid COD
Official immunity defense for government officials.
See Nixon v. Fitzgerald; Mitchell v. Forsyth; Ashcroft v. Iqbal
p. 54 #3
B. Not Appellable
C. Not Appellable
E. Not Appellable
F. Not Appellable
G. Not Appellable
Anderson v. Citty of Bessemer City (Alabama)
Anderson sued Bessemer City for discrimination, alleging that she was overlooked for a position because she was a woman. The District Court found that Anderson was the most qualified candidate, and entered other findings of fact and conclusions of law. The Court of Appeals for the 4th Circuit reversed, holding that the District Court's findings were clearly erroneous. The Supreme Court granted certiorari.When reviewing factual findings, the appellate court is not to conduct a de novo review. The appellate court is bound by the clearly erroneous standard.
Changed the law FR 52(a)(6) codifies on of Anderson's points: "Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous."
Harnden v. Jayco, Inc.
Appellate Rule 4(a)(6)(b)
Without notice, you have 180 days after the judgment of the order
Ardito sails on a slow boat
to Sicily. While he is traversing
the wine dark sea, a federal court
enters summary judgment on all issues against his client. He may appeal when he learns of the
False. Not good cause.
H is in intensive care after a training accident and, as a result, did not receive a decision to dismiss her client’s case. Ninety days after the decision, she has a full recovery and learns of the bad news. Can she appeal?
She has very good cause but is still out of time so she can't appeal.
Lawyer brings an unsuccessful motion to dismiss arguing that the court had no pj over
his client. When the court denies his motion, he can successfully bring a COD
appeal by arguing that his client has a right not to stand trial because of
lack of pj.
False. No COD b/c its super narrow and only valid in a few instances.
What is a statutory interlocutory appeal that is rarely used?
28 U.S.C. 1292 (b). The judge can grant it
3 prong test
1. Important issue separate from the merits
2. certified by appellate and trial courts
3. conclusively determine the disputed question
If a judge relies excessively on the proposed findings of a prevailing party, then
the reviewing court must should review the findings skeptically?
A little skepticism is probably warranted, but they won't do too much about it.
If the trial judge finds gender discrimination, but the 4th Cir was convinced that there was no discrimination, then it should hold for D.
If the losing party believes that the jury’s assessment of the parties’
credibility is completely “bonkers,” can the party successfully appeal?
final exam question
jury verdict 7th amendment is pretty "sacrosaint" sp
A fact is a fact is a fact. Discuss.
Lesson you should take from Anderson. Anderson said some facts (documents) the appellate court should look at and others that should be left to the trial court. Clearly erroneous standard still applies
The final judgment rule like the summary judgment rule gives the trial judge
enormous power. Discuss.
Many decisions during the course of the case will be perceived as harmless by the time the case is over.
The Naming of the Parts
(Allen Reference for Preclusion)
To-day we have naming of parts. Yesterday,We had daily cleaning. And to-morrow morning,We shall have what to do after firing. But to-day,To-day we have naming of parts. JaponicaGlistens like coral in all of the neighboring gardens, And to-day we have naming of parts.This is the lower sling swivel. And thisIs the upper sling swivel, whose use you will see,When you are given your slings. And this is the piling swivel,Which in your case you have not got. The branchesHold in the gardens their silent, eloquent gestures, Which in our case we have not got.This is the safety-catch, which is always releasedWith an easy flick of the thumb. And please do not let meSee anyone using his finger. You can do it quite easyIf you have any strength in your thumb. The blossomsAre fragile and motionless, never letting anyone see Any of them using their finger.And this you can see is the bolt. The purpose of thisIs to open the breech, as you see. We can slide itRapidly backwards and forwards: we call thisEasing the spring. And rapidly backwards and forwardsThe early bees are assaulting and fumbling the flowers: They call it easing the Spring.They call it easing the Spring: it is perfectly easyIf you have any strength in your thumb: like the bolt,And the breech, and the cocking-piece, and the point of balance,Which in our case we have not got; and the almond-blossomSilent in all of the gardens and the bees going backwards and forwards, For to-day we have naming of parts.
Frier v. City of Vandalia
Case 1: Suing for Replevin. Vandalia won.
Case 2: Second court 1983 action for Due Process. Dismissed for fsc but should've been msj.
I: Can a plaintiff bring the same suit against the same defendant more than once?
H: No. A court ought not resolve a constitutional dispute unless that is absolutely necessary.
A plaintiff cannot bring two identical suits against one defendant in two different courts.
Res Judicata/claim preclusion is designed to impel parties to consolidate all closely related matters into one suit. Doing so prevents the oppression of defendants by multiple cases, which may be easy to file and costly to defend.
Big Package: Transaction (from CTO)
Facts. Circumstances. blah blah blah
p. 723 c
LAW OF THIS CLASS
Student sues UDC for broken arm sustained when a campus shuttle bus driver negligently
started the bus when S was alighting.
Student brings separate case for his broken leg, sustained when after falling off the bus, he fell into a trench opened by UDC excavating nest to the bus stop. Second action viable?
Yes. Series of connected transactions. See Restatement 24.
If plaintiff brought it you would defend with a msj b/c the issue is precluded
All federal courts base their preclusion decisions on R-24, transactional analysis.
No. Can also look to the jurisdiction who decided the first case. See Frier.
What result if first Frier case had been brought in local court, whose judgment was limit to
If he had a choice about where to bring the replevin action than barred. if no choice, than go ahead.
What result, if F filed
again after first decision claiming city overcharged on tax bill?
No preclusion. Not transactionally related. Not even the same claim.
What result if F filed 3rd
suit alleging cop vandalized hallway at time he left note?
Precluded. Same transactional occurrence.
What result in second case
if one car belonged to F’s spouse?
No preclusion b/c its a different claimant.
What arcane principle of appeals—that you just learned-- does F decision illustrate?
judgment based on relief.
New Professor does not get K renewal, because her scholarship was weak and badly
written. A year later, the dean is asked for reference and states that she
suspected professor was on drugs most of the time. If professor brought an action based on discrimination in
the first action, may she bring the second slander action?
no preclusion. different transaction per r.24(2)
What is the difference between a compulsory claim and a permissive counterclaim?
A compulsory counterclaim is a precluded claim arising from the same CTO. R.24 No civil rule
Permissive counterclaim not precluded.
See FRCP 13.
Give a concrete example of a claim precluded under R.24
P sues D for two claims: Intentional ramming and negligent ramming.
Two Areas of Privity
i.e. Buyers and sellers of a house against a neighbor. 1st litigation determined an easement for neighbor. Buyer is in strict privity with seller. BOUND by 1st decision
As a general matter, when do we deal with federal law preclusion and state law preclusion?
When in federal court on a diversity case you look to see what that state uses on preclusion.
Yeazell and Allen urges you to take a div view of merits litigation - final and valid.
B/c they had the full chance to litigate
Is a consent judgment res judicata?
Yes b/c its an adjudication
What happens if you want to bring a collection case after receiving judgment in a DC court and there's no asset in DC but there are assets in West VA. Can you bring another case in West VA to collect or is this res judicata?
No. B/c its an enforcement action and considered collateral and not a new action.
What happens if you want to bring a collection case after receiving judgment for $1 million but D has no money. D later has the money. Do you need to bring a new case? Is this res judicata?
Go with the same judgment cuz you have 20 years to collect and you simply renew it.
How do compulsory counterclaims work?
If you didn't bring a claim with the same CTO you can't bring it up later
What happens if you bring a case restricted by replevin action....are you barred from going to another court?
Yes. Exception to res judicata b/c the court had limited jurisdiction
1st case replevin. you pick the easy option. 2nd case is 1983 due process. res judicata?
When you have a choice you are barred.
No choice, not barred.
Which law do we use in any federal case?
Reasons they didn't like offensive/defensive preclusion
Wasn't fair (list reasons)
See State Farm Case - 50 P's
Example: P sues D and its evident that P should have recieved more on judgment