In this second of a two-part series, arbitrator and mediator Barry Winograd continues to explore the challenges in interpreting the transportation worker exemption under Section 1 of the Federal Arbitration Act (FAA) and proposes a solution. Mr. Winograd suggests that courts should look to established labor and employment laws, such as the National Labor Relations Act, Railway Labor Act, and Fair Labor Standards Act, for guidance in determining who qualifies as a transportation worker, rather than relying on vague qualifiers created by the courts.

In this first of a two-part series, arbitrator and mediator Barry Winograd examines the Supreme Court's recent decision in Bissonnette v. LePage Bakeries and its impact on the interpretation of the transportation worker exemption under Section 1 of the Federal Arbitration Act (FAA). Mr. Winograd argues that the Court’s current approach to determining who qualifies as a transportation worker has led to increasing uncertainty and inefficiency in litigation, potentially transforming the FAA from a procedural statute into a de facto substantive employment law.

Arbitrator and mediator Barry Winograd comments on the recent decision by the U.S. Supreme Court in Coinbase v. Bielski, in which the Court held that a litigation stay is required when an interlocutory appeal permitted by Section 16(a) of the Federal Arbitration Act is taken from a federal district court order denying a motion to compel arbitration. Mr. Winograd summarizes the Coinbase decision, shares several thoughts about its reasoning, and considers the decision’s potential effects on arbitration practice.

Illinois Law professor Matthew Finkin comments on the Supreme Court’s recent decision in Viking River Cruises v. Moriana, pointing out several issues in the Court’s reasoning and conclusion as to the arbitration questions raised in that case. Professor Finkin argues that the decision incites three lines of inquiry—historical, empirical, and doctrinal—and then begs them, ultimately leaving more questions than it resolves.

In this second of a two-part series of columns on the Supreme Court’s decision in Southwest Airlines v. Saxon, Barry Winograd describes some of the problems posed by the Court’s decision and reasoning. As Mr. Winograd explains, the opinion fails to clarify the governing standard, omits altogether any consideration of the applicable Railway Labor Act, creates confusion as to the classification of supervisors, and does not adequately consider the effects on the “gig” economy.

In this first of a two-part series of columns on the Supreme Court’s decision in Southwest Airlines v. Saxon, Barry Winograd summarizes the facts leading up to the case and the Court’s decision and reasoning. In particular, Mr. Winograd explains the two prior decisions addressing the FAA’s transportation worker exemption, Circuit City Stores, Inc. v. Adams, decided in 2001, concluding that the residual clause in Section 1 covers only transportation workers and not workers generally, and New Prime, Inc. v. Oliveira, applying the exception to an interstate truck driver classified as an independent contractor and not an employee.

NYU Law professor Samuel Estreicher and 2L Andrew Vaccaro comment on a recent decision by the U.S. Court of Appeals for the Second Circuit suggesting that statutory procedural rights are generally waivable by contract outside of arbitration.

NYU Law professor Samuel Estreicher and appellate lawyers Rex Heinke and Susan Yorke discuss a decision by the U.S. Court of Appeals for the Ninth Circuit in which the appellate court reinstated California AB 51, which prohibits employers from conditioning employment on an applicant’s waiver of various rights, including the right to litigate. The authors note that the ruling creates a circuit split and may even be at odds with recent Supreme Court case law.

NYU Law professor Samuel Estreicher and appellate lawyers Rex Heinke and Jessica Weisel comment on a case the U.S. Supreme Court will hear next term that presents the question what role, if any, federal courts should play in facilitating discovery in foreign arbitrations. The authors argue that while the case seems to turn on a simple matter of statutory interpretation, the case may shed new light on how the current Court approaches traditional interpretive tools.

NYU Law professor Samuel Estreicher and appellate lawyers Rex Heinke and Jessica Weisel describe the uncertainty surrounding whether Uber and Lyft drivers are subject to the Federal Arbitration Act. The authors note the split of authority across the nation and note that, depending on the outcome of litigation in the Second, Third, and Eleventh Circuits, the question may soon come before the U.S. Supreme Court to resolve.

NYU law professor Samuel Estreicher discusses a recent decision by the Tenth Circuit in Fedor v. United Healthcare, in which the court clarified that a court must first find agreement to arbitrate before the severability doctrine comes into play. Professor Estreicher explains the severability doctrine, describes the facts giving rise to the case, and the Tenth Circuit’s reasoning behind its conclusion.

NYU law professor Samuel Estreicher comments on a recent decision by the U.S. Court of Appeals for the Seventh Circuit in which the court bucked a recent trend in lower courts by holding that that parties to private international arbitrations can obtain court-based discovery. Estreicher explains the facts of that case and notes that the court’s decision reinforces a circuit split that might end up before the U.S. Supreme Court.

Guest columnist Barry Winograd—an arbitrator and mediator, and lecturer at Berkeley Law—concludes his two-part series of columns on the conflict between President Donald Trump and Stephanie Clifford, the adult film actress known as Stormy Daniels. Winograd argues that both parties would benefit from settling their claims against the other so they can minimize disruption to their personal and professional futures.

Guest columnist Barry Winograd—an arbitrator and mediator, and lecturer at Berkeley Law—analyzes the settlement agreement purportedly between Donald Trump and Stephanie Clifford, an adult film actress also known as Stormy Daniels. In this first of a two-part series of columns, Winograd describes some of the intricacies of the agreement as well as the budding litigation over it, highlighting some of the strengths and weaknesses in the legal arguments of each side.