Often parties dispute the arbitrability of a dispute, leading to the question of who has jurisdiction—the court or the arbitrator. Some may worry that the inclusion of an arbitration clause makes a dispute always arbitrable. However, the “law provides protection
Continue Reading Who’s in Charge? Trial Court v. Arbitrator Jurisdiction
As every lawyer knows, solid arguments are built on a combination of precedent and history—either urging the court to follow what it or other courts have done in the past, or to avoid prior decisions through distinction in the present application or context. Thus, in asking a court to engage in constitutional or statutory interpretation, what role does the “history and tradition” of the underlying text play in the analysis?
Continue Reading Is history the best teacher?
“As Justice Scalia memorably said, Article III requires a plaintiff to first answer a basic question: ‘What’s it to you?’” Food & Drug Admin. v. All. For Hippocratic Med., 602 U.S. 367, 379 (2024) (quoting A. Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U.L. Rev. 881, 882 (1983)). In this summer’s roll out of United States Supreme Court decisions, many controversial cases have been highly anticipated, including that of Food and Drug Administration v. Alliance for Hippocratic Medicine.
Continue Reading What’s it to you?
“But your client breached the agreement!” – declared a Fifth Circuit Judge while pounding a fist with each word.
“Respectfully, your honor, there never was an agreement for my client to breach.”
It was one of those moments that gave me flashbacks to those heated law school moot court practices that were aimed at preparing me for this type of exchange. Nonetheless, it was still rather daunting in real life.
Continue Reading Does Oral Argument ever make a difference?