This Essay identifies and analyzes the problems that may arise when insurance coverage disputes are subject to mandatory, binding arbitration. We argue that arbitration often involves a form of contractual "lawlessness" that is especially undesirable in claims that involve new legal issues. This lawlessness not only adversely affects the parties to each dispute, but the legal system as a whole. As a consequence, in our view insurance policyholders should be reluctant to purchase policies that require binding arbitration of coverage disputes. In addition, since the problems that we identify are likely to arise not only in insurance, where new, cutting-edge issues have regularly emerged for decades, but also in other kinds of disputes posing new legal issues, the legal system should reconsider the highly favorable stance that it takes toward mandatory, binding arbitration in general, so as to take account of the negative effects of arbitration lawlessness. A neutral legal and judicial stance toward binding arbitration would be more appropriate.
This casebook aspires to help students understand and think systematically about the techniques of statutory interpretation. It blends exposition with...
Supreme Court opinions involving race and the jury invariably open with the Fourteenth Amendment, the Civil Rights Act of 1875, or landmark cases like...
On January 1, 2022, the most radical change to the American jury in at least thirty-five years occurred in Arizona: peremptory strikes, long a feature...
How should judges decide hard cases involving rights conflicts? Standard debates about this question are usually framed in jurisprudential terms...
Berryessa et al. (2022) consider how prior experience as a criminal prosecutor may influence judicial behaviour, but their concerns about prior...
A federal grand jury in Florida indicted former President Donald Trump on June 8, 2023, on multiple criminal charges related to classified documents...
In our increasingly polarized society, claims that prosecutions are politically motivated, racially motivated, or just plain arbitrary are more common...
The lawyer-client relationship is pivotal in providing access to courts. This paper presents results from a large-scale field experiment exploring how...
Perhaps the most surprising feature of the last Supreme Court term was the extraordinary public discourse on 303 Creative LLC v. Elenis. According to...
It is—and has long been—well known that the Executive’s power is expanding. To date, there are two dominant analyses of the Judiciary’s role in that...
Judicial reasoning and rhetoric should be mutually reinforcing, but they often end up at odds. Edwards v. Vannoy offers an unusually rich opportunity...
This Article, written for the annual Clifford Symposium on Tort Law and Social Policy, chronicles a series of developments in American history that...