Author Archive | David Bernstein

A good friend of mine, a plaintiff’s lawyer, tells me that he thinks one of the biggest problems with NASD arbitration is that the “public arbitrators” rarely represent the public, and, indded, they often have ties of various sorts to the securities industry. Putting intentional bias aside, such associations can certainly skew one’s perspective. (E.g., […]

It’s well-known that if punishments are too harsh, triers of fact will be less willing to convict, so long as they are aware of the punishment. [Almost] no one would want a burglar to face the death penalty. An analogous problem can come up in NASD arbitration. If a brokerage employee is named in an […]

As several VC readers have pointed out in the comments section in response to previous posts, NASD arbitration awards are notoriously arbitrary. How arbitrary? I’ve already mentioned that the arbitrators’ ruling managed to completely ignore a small claim that the other side essentially conceded, with no explanation for this omission. Consider also the following: It […]

I deleted a post regarding the NASD arbitration in which I participated, because, though I did an initial check on the matter, I wanted to follow up with someone more knowledgeable than I on exactly what one is allowed to reveal about arbitration proceedings, whether reporting on such proceedings is treated the same way by […]

Temporarily deleted for reediting.

The AP is reporting that the President has selected D.C. Circuit Judge John Roberts, Jr., as his USSC nominee. I have nothing against against Roberts, and I’m sure he’s a fine judge, but I do have a strong preference against “Washington insiders,” which is how Roberts is described.

Well, I received word from my father that in the case of Bernstein v. Craig Hassel and H&R Block Financial Advisors, Inc., the arbitration case in which I represented my father, we lost. Not only that, but the arbitrators chose to award $4,500 in costs against him. [CLARIFICATION: My father misunderstood the ruling. Each party […]

Here’s all you need to know: “we conclude that the $350,000 ceiling adopted by the legislature is unreasonable and arbitrary because it is not rationally related to the legislative objective of lowering medical malpractice insurance premiums.” The ceiling (on non-economic damages) won’t have a large effect? Perhaps. Won’t have a noticeable effect? It’s possible. Is […]

As noted last week, I spent Thursday and Friday representing my father in an NASD arbitration. I won’t comment on the substance, but I did find that arbitration has some real procedural advantages: (1) instead of jurors, you get triers of fact who actually have some expertise regarding the issues at hand; (2) the arbitrators […]

Due to a miscommunication between my secretary and a temp, my manuscript “Lochner v. New York: A Centennial Retrospective” was sent out to twenty or so law reviews without a cover letter. The manuscript was ready, but I wasn’t planning to send it out quite yet, and hadn’t prepared the cover letter yet. As soon […]

Not long ago, the BBC said that it never used the words “terrorism” or “terrorist” because, and I quote, “one man’s terrorist is another man’s freedom fighter.” Thus, for example, if Hamas blew up a bus in Tel Aviv, the “T” words were never used. But, in the aftermath of the London bombings, go ahead […]

The Israelis knew in advance about the London bombings… no wait, they didn’t, but that doesn’t stop certain conspiracy mongers from mongering their conspiracies.

If you’re not an attorney who does securities litigation, you probably want to skip this post. I’m representing my dad tomorrow in an NASD Securities arbitration, and could use some help with the following questions: (1) Respondents have six witnesses, four of whom they want to testify by telephone. They have provided no reason why […]

I can’t think of a better Supreme Court nominee than Alex Kozinski of the Ninth Circuit. He’s a brilliant judge, and has written very influential opinions on everything from the admissibility of expert testimony to antitrust. He’s a judicial conservative, but with exactly the sort of libertarian instincts that are desireable during a prolonged War […]

When the chief executive of Toll Brothers, one of the nation’s largest homebuilding companies says this: “In the hot markets, I wouldn’t be surprised to see a 20 percent decline,” Toll said at the Reuters Real Estate Summit in New York. “You’ve got a price going from $1 million to $800,000, I don’t have a […]