US Arbitration Law and Practice (Adler)
Additional Information
Skills Training
Oral Presentations
Team Projects
Drafting Legal Documents
Grading
25% Participation,
75% Exam,
Other (In a small class, participation is important, and so I give substantial weight to the quality (not quantity, so this does not reward gunners) of student participation. )
Exam
Essay,
In Class,
Partial Open Book (Casebook and student notes. )
No
Class meets in person.
Course Continuity
Students are encouraged to stay home if you are ill or experience flu-like symptoms. If you miss a class for any reason, it is still your responsibility to make up the work missed.
I offer the following to students who miss class due to illness:
- Please make an appointment to meet with me and I will review/answer questions about what you missed.
Meeting Times/Location
R 4:30PM - 6:20PM
Silverman Hall 240A
Category
Upper-Level
Credits
2.0
Welcome to US Arbitration Law AND Practice, emphasis added. The course is aptly named because we will be studying caselaw but also delving frequently into my own 40+ years of arbitration practice and hearing as well from other practitioners in the field. We will have at least one class exercise where you are divided into teams on an arbitration issue, and we will have one panel discussion with active and leading practitioners in the field.
This course is important for the training of any future lawyer, whether they become a litigator or transactional attorney. Arbitration has exploded as a distinct subset of “alternative dispute resolution” (ADR) and the law of arbitration has exploded with it – hence the readings that will largely drive the course. Since the United States Supreme Court commanded in 1983 that courts should take a pro-arbitration stance, and has generally spent the time since then striking down most challenges to arbitration, a distinct body of law has developed. Whether one is drafting a dispute resolution clause as part of a transaction, deciding how to vindicate consumer rights, or bringing a commercial arbitration, knowledge of this law and practice has become essential.
There are three units to the class, which follow the chronological development of an actual arbitration: Unit I will cover drafting the arbitration clause, client considerations in arbitration vs. mediation vs. litigation, and then “arbitrability”, which means whether or not the parties have agreed to arbitrate their particular dispute. We will examine social and public policy issues caused by the courts' strong pro-arbitration policy, especially the impact of arbitration on consumer and individual access to courts, and the extent to which the #metoo movement altered arbitration of sexual harassment cases. We will concentrate at the end of this unit on the present, ongoing and unsettled controversy over so-called “mass arbitration.”
Unit II will examine how to launch, conduct and win an arbitration, including arbitrator selection, arbitrator conflicts in a BigLaw era, and the establishment of a working schedule covering discovery, witnesses and hearings. We will look at differences between arbitration and litigation on witnesses and discovery, including on the circuit court split regarding third party witnesses in arbitration. We will have a class exercise with teams negotiating schedule and then appearing before the arbitrator.
Unit III, on enforcement, will study how to uphold, or, if you lose, challenge, an arbitration award in court.
Finally, we will have a bonus section on international arbitration.
We will continually focus on the social policy issues discussed above; on the importance of drafting (you don’t want to be the lawyer who created the cases in this book); and on professionalism, civility and ethics.
Readings will be primarily from my casebook, Arbitration: Cases, Problems and Practice (2d ed) plus a bound supplement I will make available of more recent cases. I will add to assigned readings as and when new cases or great articles come out.
I strive for a low pressure atmosphere in class. I don’t cold call unless absolutely necessary to keep class discussion going. There are no wrong answers. If you feel like you can’t add to the discussion in a particular week, let me know in advance. Otherwise, everyone’s up - I don’t do "on call" either.
I’ve been an adjunct for 20 years (this is my first year at Penn, but I've previously taught at Rutgers, UVA, George Washington and for the past two years at the University of Michigan) and the best part is meeting my students and following their careers proudly. I’m available to meet at the law school or my Center City offices at Troutman – drop an email and we can set something up and talk about the course, jobs, interviewing, or anything else of interest.
I look forward to getting to know you and learning together.
Business and Corporate Law Learning outcomes: Demonstrate a core understanding of business and corporate law; Perform legal analysis in the context of business and corporate law; Communicate effectively on topics related to business and corporate law; Demonstrate an understanding of the interconnection between the world of business and finance and that of business and corporate law, and how they affect other areas of law and society.
Courts and the Judicial System Learning outcomes: Demonstrate a core understanding of both substantive and procedural issues in the operation of our legal system; Perform legal analysis in the context of procedural issues and the judicial process; Communicate effectively on topics related to procedure and the judicial process; Demonstrate an understanding of how procedural issues and the judicial process affect all other area of our legal system.
Textbooks
"Arbitration: Cases, Problems and Practice" by Matthew H. Adler |