Copyright (c) 2009 All rights reserved. http://works.bepress.com/stephen_ware Recent documents in Stephen Ware en-us Tue, 29 Sep 2009 23:39:19 PDT 3600 http://works.bepress.com/stephen_ware/27 http://works.bepress.com/stephen_ware/27 Mon, 28 Sep 2009 12:29:21 PDT In supreme court selection, the bar has more power in Kansas than in any other state. This extraordinary bar power gives Kansas the most elitist and least democratic supreme court selection system in the country. While members of the Kansas bar make several arguments in defense of the extraordinary powers they exercise under this system, these arguments rest on a one-sided view of the role of a judge. Stephen Ware http://works.bepress.com/stephen_ware/26 http://works.bepress.com/stephen_ware/26 Sun, 17 May 2009 14:15:59 PDT Some recent scholarship contends that arbitration is failing in its attempts to compete with litigation. When arbitration does succeed in attracting customers, such as businesses including arbitration clauses in their consumer contracts, commentators assert that it does so illegitimately, such as by enabling businesses to evade class actions and other forms of aggregate relief. Both of these positions find support in a pair of recent empirical studies authored by Theodore Eisenberg and Geoffrey Miller (and, for one of the studies, by Emily Sherwin as well). The first study examined the use of arbitration clauses in a sample of material contracts (such as loan commitments and merger agreements) filed with the SEC, and found that only a small percentage of the material contracts included arbitration clauses. The second study (with Professor Sherwin) compared the use of arbitration clauses in material corporate contracts of telecommunications and financial services companies with the use of arbitration clauses (and class arbitration waivers) in consumer contracts drafted by the same companies, and found a much higher use of arbitration clauses in the consumer contracts.In this paper, we revisit the Eisenberg and Miller (and Sherwin) studies. The studies provide a fascinating and valuable look into the use of arbitration clauses in the types of contracts they studied. But as we show in detail, the types of contracts they studied are not representative of either business or consumer contracts as a whole. Indeed, the business contracts they studied are predominantly types unlikely to include arbitration clauses, while the consumer contracts they studied are among those most likely to include arbitration clauses and class arbitration waivers. As a result, their findings need to be construed narrowly, as limited to the types of contracts studied, and not as applicable to either business or consumer contracts generally. Christopher R. Drahozal http://works.bepress.com/stephen_ware/25 http://works.bepress.com/stephen_ware/25 Fri, 12 Dec 2008 13:59:24 PST Widespread enactment of the Uniform Commercial Code (UCC) occurred nearly half a century ago. Even so, significant non-uniformities in commercial law remain. One is the method of perfecting a security interest in a farm tractor. Stephen Ware http://works.bepress.com/stephen_ware/24 http://works.bepress.com/stephen_ware/24 Fri, 12 Dec 2008 13:49:44 PST Kansas is the only state in the union that gives the members of its bar majority control over the selection of state supreme court justices. The bar consequently may have more control over the judiciary in Kansas than in any other state. This process for selecting justices to the Kansas Supreme Court is described by the organized bar as a "merit," rather than political, process. Other observers, however, emphasize that the process has a political side as well. This paper surveys debate about possible reforms to the Kansas Supreme Court selection process. These reforms would reduce the amount of control exercised by the bar and establish a more public system of checks and balances. Stephen Ware http://works.bepress.com/stephen_ware/23 http://works.bepress.com/stephen_ware/23 Tue, 08 Apr 2008 14:16:27 PDT This short piece emphasizes what makes consumer and employment arbitration in the securities industry different from consumer and employment arbitration generally. Securities law imposes non-contractual duties to arbitrate on both broker-dealers and securities employees. I believe these laws are bad policy because they restrict contractual freedom. I conclude that securities arbitration should be contractual, like other arbitration. Stephen Ware http://works.bepress.com/stephen_ware/22 http://works.bepress.com/stephen_ware/22 Mon, 28 Jan 2008 09:04:41 PST Professor Jacoby's description of medical-related financial distress as a pervasive problem is not merely a throwaway line but rather a claim that raises important, even philosophical, questions. And her goal of mak[ing] meaningful inroads into the problems caused by structural limitations of health care finance commits her to a scholarly agenda much broader than the empirical and doctrinal aspects of debtor-creditor and health law. It is an agenda that confronts grand issues of political philosophy and economics. Stephen Ware http://works.bepress.com/stephen_ware/21 http://works.bepress.com/stephen_ware/21 Mon, 28 Jan 2008 08:30:52 PST The recent case of Buckeye Check Cashing, Inc. v. Cardegna, is only the second Supreme Court decision applying the separability doctrine and it comes nearly forty years after the Court's first separability decision, Prima Paint Corp. v. Flood & Conklin Manufacturing Co. Arbitration's tremendous growth during those forty years - and the arrival of Buckeye - make this an opportune time to assess the current state of the separability doctrine. In doing that, this article will analyze Prima Paint and Buckeye and discuss the separability issues they leave unresolved. Finally, this article will critique the separability doctrine and call for its repeal by Congress. Stephen Ware http://works.bepress.com/stephen_ware/20 http://works.bepress.com/stephen_ware/20 Thu, 24 Jan 2008 09:35:18 PST Introduction to symposium on dispute resolution in cyberspace. Stephen Ware http://works.bepress.com/stephen_ware/19 http://works.bepress.com/stephen_ware/19 Wed, 16 Jan 2008 14:25:50 PST Arbitration is not necessarily antithetical to the assimilation of different groups. While intra-group arbitration allows for various groups to separate into their own cocoons, general arbitration can be the handmaiden of assimilation. Both types of arbitration deserve to flourish. Stephen Ware http://works.bepress.com/stephen_ware/18 http://works.bepress.com/stephen_ware/18 Wed, 16 Jan 2008 14:09:06 PST A forthcoming article, Christine Jolls, Accommodation Mandates, 53 Stan. L. Rev., provides a framework for analyzing the effects of employment discrimination statutes. This article extends that framework to employment arbitration to describe the effects of enforcement of employees' pre-dispute arbitration agreements. The article also critically reviews empirical studies of these effects. Stephen Ware