ISSUE: An important question arises whether arbitration agreements are valid in wrongful death suits, because the person who signed it has died. The action is being brought by the deceased person’s estate, but the estate did not agree to arbitration. Some people argue that this means the agreement should not be enforced.
However, some courts take a different view. In 2013, Florida state’s Supreme Court held that an arbitration agreement was binding in a wrongful death lawsuit against a nursing home. Recently, a federal court in Florida required arbitration when a woman’s son died due to meningitis while on a cruise ship. She claimed that the ship’s medical personnel did not accurately diagnose her son’s condition, leading to his death.
CLAIM: Wrongful Death Cases should not be compelled to arbitrate.
ARGUMENTS: (List is not all inclusive)
-Ultimately, compelling arbitration upon a party who did not waive his or her right to a jury trial runs afoul of important constitutional rights.
-Indeed, a beneficiary has not chosen to arbitrate his rights because, by definition, he was not party to the underlying contract between the decedent and the defendant.
-The vast majority of disputes subject to mandatory arbitration agreements “simply evaporate before they are even filed
-Wrongful death liability aims to deter future misconduct by directly imposing high costs for morally culpable misconduct, including the combination of compensatory and punitive damages. Yet if the terms of an arbitration agreement expressly deny an arbitrator the power to award punitive damages, courts agree that the right to recover punitive damages is waived altogether and a claimant may not recover them in open court.
-Even if the arbitration agreement does allow for an award of punitive damages, the award itself is likely to be minor in comparison to what otherwise could be recovered at trial.
-A twenty-nine-state majority agrees that punitive damages in cases of wrongful death serve the state’s legitimate interest in deterring future misconduct: thirteen states have passed statutes expressly authorizing punitive damages in the wrongful death context
-Wrongful death arbitration dispenses with litigation’s disciplined discovery procedures and evidence rules that deter wrongful conduct.
-The Supreme Court of the United States has emphasized that “[i]t goes without saying that a contract cannot bind a nonparty,” and courts have recognized that, as a general matter, nonsignatories are neither bound by nor entitled to enforce an arbitration agreement
-The FAA does not preempt a state court decision refusing to compel arbitration of wrongful death claims. The touchstone of the FAA is freedom of contract, which is a matter of consent, not coercion.
-Arbitration proceedings are conducted in private and before a privately paid arbitrator, beholden to some extent to those who bring him business, and who has not faced the vetting of the public at state election or the confirmation process of a federal judge.
Must find 5-6 sources that make this argument in caselaw and legal journals. BLUEBOOK CITATIONS.
1) Introduction: Introductions are really important in a paper like this. This is your opportunity to grab your reader’s attention and set them up for the journey of your paper. There are many possible ways to do this—you get to be creative. At the least, your introduction should (a) frame up your topic; (b) articulate your claim in a thesis statement; and (c) provide a roadmap to the organization of the paper.
As a very rough rule of thumb, your introduction shouldn’t generally constitute more than 1/5th of the total paper. So, if you’ve got a 25-page paper, your intro shouldn’t be more than 5 pages, at most. Usually, in fact, an introduction should be shorter. That said, I tend to think that in a paper like this one, introductions can be particularly significant.
Pro-tip—I like to think of introductions as a funnel. You get to start your intro very expansively, introducing a sweeping and broad general topic. As the introduction progresses, though, it should start to funnel the discussion into a narrower and narrower channel. By the end of the introduction, you’ve focused the paper on the narrow thesis claim you’re making. But the funnel process helps situate your specific and precise thesis in a broader context.
2) Background: Most of your papers will focus on one or more high-profile legal events. Accordingly, background sections are going to be important. You want to provide sufficient detail and context in your background section to make your argument/discussion work. But you also want to be sure to keep your background section focused. You’ll know a lot more, most likely, about the high-profile legal event you write about than you can reasonably put into the paper. You have to pick and choose. Not every detail is relevant to your thesis. Make sure to keep the background streamlined and in service of your argument/discussion.
Your background should, as a rough rule of thumb, be somewhere around 1/3-1/2 of the total length of the paper.
3) Proof of Claim (or Discussion or Argument): You can call this part of your paper whatever you like. I sort of like to think of it, thought, as a proof of claim section (or sections). This part of your paper might be comprised of several sections. No matter how you organize it, this section is the heart of your paper. This is the real reason your readers are reading the paper—to have you persuade them that your thesis claim is true.
This part of your paper should be, at a minimum, 1/3 of the total length of the paper.
Pro-tip— This section is, as I say, the heart of the paper. It’s your ideas, your thinking. That’s what I really care about. Anyone can do some research and write a background section on a high-profile legal event. But not everyone will have your take on the meaning or significance of that event. I want to understand your thinking.
Because everything in the paper should be in service of this section, you need to start thinking and working on this section early. Then you can revise your thesis, as you get more and more clarity about what you think, and you can refine your background to make sure that it is sufficiently focused and streamlined.
4) Conclusion: Conclusions should be fun. They’re a wrap up. Technically, they need to restate your key conclusions or arguments in a summary form and demonstrate how all the threads pull together to prove your thesis. They are, however, the least important part of the paper, in many ways. If you’ve done your job in the rest of the paper, the conclusion won’t do much new work.
Your conclusions should be short and punchy. In no event should they be more than a few paragraphs, for a paper of this length.
Pro-tip—If you think of the introduction as a funnel, as I suggested, then the conclusion can be sort of an inverse funnel. You start it by restating your narrow and focused arguments. But you can then begin to broaden back out, situating the paper and its work in a broader context. I think that the best conclusions usually suggest how the paper fits into a larger set of conversations or scholarship. Sometimes the conclusion can suggest what additional work or thinking or research might be done.
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ISSUE: An important question arises whether arbi appeared first on Skilled Papers.