Friday, November 18, 2016

Drafting for Dispute Resolution: A Concise Guide

Originally published by Beth Graham.


John M. Newman, Assistant Professor of Law at the University of Memphis – Cecil C. Humphreys School of Law, has written “Drafting for Dispute Resolution: A Concise Guide.”  In his research paper, Professor Newman provides an overview regarding the drafting of successful alternative dispute resolution provisions based on recent Supreme Court precedent.

Here is the abstract:

This is a brief guide to drafting contractual dispute-resolution provisions. Though formerly viewed as esoteric boilerplate, such provisions have gained widespread attention in recent years. Legal scholars had, as early as 2005, predicted that such provisions would bring about the near-total end of class-action litigation. But it was a series of U.S. Supreme Court decisions that thrust contractual dispute resolution into the national spotlight. Beginning with AT&T Mobility v. Concepcion in 2011, and culminating with Italian Colors v. American Express in 2013, the Court lent much greater strength to mandatory-arbitration provisions, even when coupled with classwide dispute-resolution waivers — and even where the practical effect of such provisions is to prevent plaintiffs from effectively vindicating their legal rights. In late 2015, the New York Times published a series of front-page articles detailing the growing prevalence of contractual mandatory-arbitration provisions. Following this coverage, federal agencies began moving to stymie the private sector’s shift toward arbitration.

In light of the growing importance of contractual dispute resolution, this guide seeks to concisely identify — from a transactional perspective — the relevant questions, considerations, and law surrounding dispute-resolution provisions. The target audience includes practitioners, scholars, businesspersons, and other analysts exploring how to plan and draft for dispute resolution.

This and other works authored by Professor Newman may be downloaded at no cost from the Social Science Research Network.

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