ARBITRATION LAW

Arbitration Law and Practice Syllabus (Fall 2014)

Mondays; 6:00pm-8:45pm

Building: LS Room: 374

Professor Gabe Bowne

[email protected]; [email protected]

949-838-7167

Office Hours: After class each week

What Is Arbitration?

In many ways, arbitration is like a courtroom trial. Two parties are fighting it out, presenting evidence and making legal arguments, trying to convince a decision-maker to side with them. But, there are some important differences.

First, the parties are in arbitration because (usually) a contract they agreed to has a clause in it that requires them to submit to arbitration -- rather than filing a lawsuit in court. Second, the arbitration hearing itself is not held in a state or federal courtroom, but is instead often held in a conference room or other meeting room in a neutral office building, or even in the office building of one of the attorneys or parties. Third, rather than a judge or jury, the evidence is submitted to an arbitrator for decision. The arbitrator is a neutral person (often a retired judge, attorney or industry insider) the parties have hired to hear the evidence and arguments and make a determination about who should prevail. The arbitrator’s decision is (usually) binding and (usually) cannot be appealed. Fourth, the rules of procedure, evidence and discovery that apply in state and federal courts often do not apply in arbitration. Instead, the contractual arbitration clause is typically the first place the parties will look in determining what procedural and evidentiary rules might apply, and the parties are mostly free to include as much or as little of those formal rules when they draft the arbitration clause. This means that, for example, the parties might agree in an arbitration clause that there can be very little discovery leading up to the arbitration and that the rules of evidence do not apply during the hearing.

In sum, an arbitration hearing is an efficient and streamlined version of a courtroom trial, where the focus is on coming to a quick yet equitable decision to a contractual dispute.

What Will We Learn In This Class?

This class will explore a variety of subjects related to the arbitration process, including the law of arbitration, and the practice of arbitration. This means that students will not only learn about relevant statutory and case law, but also about the practical skills an attorney will need to practice in the field.

In many ways, this will be a trial skills class as much as it will be lecture class about arbitration law.

There are two required textbooks and there will be additional reading assignments that can either be found online, through TWEN, or will be handed out in class.

1. Arbitration (Third Edition); Rau, Sherman, Peppet; Foundation Press

2. Fundamental Trial Advocacy (Second Edition), Rose; West Publishing

I understand that buying two textbooks puts an extra burden on each of you, but because of the duel nature of this class (substantive law and trial skills), I feel it is necessary. I can assure you that the extra expense will be worth it.

How Will We Be Graded?

This will not be a typical lecture class. A sizable portion of your grade will come Sent from my iPhone

Your final class grade will be broken down as follows:

In-Class Arbitration Clause test (Sept. 15): 20%

In-Class Opening Statement presentation (Sept. 22): 20%

In Class Mock Arbitration (Nov. 10,17, 24): 25%

Written take-home exam (TBD): 25%

Class Participation and Attendance: 10%

Learning Outcomes:

Program Learning Outcomes: The learning objectives for the law school curriculum generally involve “client representation,” “legal analysis,” and “legal writing.”

Course Learning Outcomes: The learning objectives for this class will be a combination of trial/arbitration skills and substantive arbitration law knowledge. A focus will be put on practical lawyering skills – both written and verbal.

WEEKLY READING, CLASS TOPICS, ACTIVITIES and SCHEDULE:

Week 1 (August 18):

Topics: Intro and Commercial Arbitration, Basic Trial Skills intro

Arbitration pgs. 1- 10; 26-32

The Legal Structure for Domestic and International Commercial Arbitration; Markham Ball (PDF)

Week 2 (August 25):

Topics: International Arbitration, Labor Arbitration, Consumer Arbitration

Arbitration pgs. 33-42, 51-58; 387-392; 398-404

Week 3 (September 8):

Topics: FAA and California law; Arbitration Clause

Arbitration pgs. 80-87; 99-103;

Green Tree Financial v. Randolph, 531 US 79 (2000) (PDF)

AT&T Mobility v. Conception, 131 S.Ct. 1740 (2011) (PDF)

Resolving Disputes; Folberg; pg. 708-722; Judicial Policing of Arbitration Agreements in Consumer and Employment Contracts; Folberg (PDF)

Townsend, Drafting Arbitration Agreements (PDF)

Week 4 (September 15):

Topics: Arbitration Clause and intro to trial skills

Bishop, A Practical Guide for Drafting International Arbitration Clauses (Please skim, don’t read closely) (PDF)

IBA Guidelines for Drafting International Arbitration Agreements (PDF)

Arbitration; Pg. 362-375

Fundamental Trial Advocacy, pg. 63-66; 72-84; 89-102 (opening statements)

In Class Arbitration Clause Test

Week 5 (September 22):

Topics: Fairness issues to consumers; direct examination

Arbitration, pgs.112-136;

EEOC v. Waffle House, 535 US 279 (2002) (PDF)

Fundamental Trial Advocacy, pg. 109-111; 127-138 (Direct Examination)

In Class Opening Statement test

Week 6 (September 29):

Topics: What powers do the Courts have over Arbitration?; cross examination

Arbitration, pgs. 136-146, 171-176

Fundamental Trial Advocacy, pg. 147-149, 155-157, 165-187 (cross-examination)

Cross Examination Exercise (not graded)

Week 7 (October 6):

Topics: What powers do the Courts have over Arbitration?

Arbitration, pg. 176-187; 193-203; 208-224

Week 8 (October 13):

Topics: Powers of the courts over arbitration and an introduction to the Arbitration Proceeding

Arbitration; pg. 237-256

Fundamental Trial Advocacy, pg. 205 (bottom)-212 (Exhibits)

Admitting Exhibits exercise (not graded)

Week 9 (October 20):

Topics: The Arbitration Proceeding; AAA and JAMS

Arbitration; Pg. 269-293

AAA and JAMS Rules (online)

Fundamental Trial Advocacy; Pg. 253-558 (Impeachment)

Impeachment exercise (not graded)

Week 10 (October 27):

Topics: Multi Party Arbitration; Class Actions

Arbitration; pg. 301-328

Fundamental Trial Advocacy; Pg. 333-342; 352-356 (Experts)

Week 11 (November 4):

Topics: Compulsory Arbitration

Arbitration, pg. 328-340

Fundamental Trial Advocacy; Pg. 361-375 (Closing Statements)

Week 12 (November 11):

Mock Arbitration Final

Week 13 (November 18):

Mock Arbitration Final

Week 14 (November 25):

Mock Arbitration Final

ACCOMADATIONS: In compliance with ADA guidelines, students who have any condition, either permanent or temporary, that may affect their ability to perform in this class are encouraged to contact Associate Dean of Student Affairs and Administration Jayne Kacer or the University Disability Services Office. Dean Kacer is located in the law school Dean's Suite and can be reached at [email protected] or 714-628-2641. You also may contact the Office of Disability Services at 714-516-4520 or www.chapman.edu/disabilities. If your request for an accommodation is granted, please discuss with your professor only those accommodations that relate to classroom learning, e.g., the need to sit in a special location, audio taping, etc. Because exam grading is anonymous, please do not discuss with your professors any accommodations related to exams. These accommodations will be handled by the Registrar's Office. The granting of any accommodation will not be retroactive and cannot jeopardize the academic standards or integrity of the course.

EQUITY AND DIVERSITY NOTIFICATION: Chapman University is committed to ensuring equality and valuing diversity. Students and professors are reminded to show respect at all times as outlined in Chapman’s Harassment and Discrimination Policy: http://tinyurl.com/CUHarassment-Discrimination . Any violations of this policy should be discussed with the professor, the Dean of Students and/or otherwise reported in accordance with this policy.