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Articles 1 - 30 of 32
Full-Text Articles in Entire DC Network
Private Transfer Fee Covenants: Cleaning Up The Mess, R. Wilson Freyermuth
Private Transfer Fee Covenants: Cleaning Up The Mess, R. Wilson Freyermuth
Faculty Publications
The purposes for creating a "private transfer fee" covenant range from supporting community services to creating a future revenue stream for the developer. Traditionally, courts examined these covenants using the touch and concern standard. The Restatement (Third) of Property: Servitudes, however, rejects this standard. This Article discusses this new approach as it relates to private transfer fees. The author argues that private transfer fee covenants are contrary to public policy and encourages states to enact legislation limiting the enforcement of these covenants.
Helping Good Lawyers Help Clients Make Good Decisions About Dispute Resolution, John M. Lande
Helping Good Lawyers Help Clients Make Good Decisions About Dispute Resolution, John M. Lande
Faculty Publications
Counseling clients about dispute resolution options is easier said than done. These can be complex and difficult decisions, and lawyers may not have appropriate resources to help lawyers counsel clients in choosing dispute resolution options. While establishing rules requiring this kind of training may help to remedy this shortcoming, perhaps the most promising involves using dispute systems design (DSD) procedures to establish better ways of training lawyers to counsel clients.
Before You Take A Collaborative Law Case, John M. Lande
Before You Take A Collaborative Law Case, John M. Lande
Faculty Publications
Under the Model Rules of Professional Conduct, lawyers have a duty to screen potential Collaborative Law (CL) cases for appropriateness and obtain clients' informed consent to use CL. The duty to screen cases is based on the "reasonableness" requirement of Rule 1.2(c) and the requirement to avoid conflicts of interest that might interfere with competent and diligent representation under Rule 1.7. Both rules require lawyers to obtain clients' informed consent to participate in a CL process. Although the Uniform Collaborative Law Act is not an ethical rule, sections 14 and 15 create relevant duties, including detailed provisions requiring lawyers to …
Adr And The Rule Of Law: Making The Connection, Richard C. Reuben
Adr And The Rule Of Law: Making The Connection, Richard C. Reuben
Faculty Publications
In this article, I will address important definitional questions and try to articulate why it is important for practitioners, program managers, scholars, judges, and others involved in ADR to engage questions about the relationship between ADR and the rule of law.
You Promised You Wouldn't Tell: Modifying Arbitration Confidentiality Agreements To Allow Third-Party Access To Prior Arbitration Documents, Gotham Holdings, Heath Grades
You Promised You Wouldn't Tell: Modifying Arbitration Confidentiality Agreements To Allow Third-Party Access To Prior Arbitration Documents, Gotham Holdings, Heath Grades
Journal of Dispute Resolution
To facilitate the speed, cost-effectiveness, and casual atmosphere of arbitration, it has long been thought that parties must trade in the usual features of the courts, such as precedent, appellate review, and certain evidentiary rules. With the increasing use of arbitration, many parties have begun to demand that some of the comforts that have long accompanied litigation be merged with the benefits of arbitration. Courts have, for the most part, denied such demands. Nevertheless, the Seventh Circuit in Gotham Holdings allowed such a demand by ruling that third parties must have the opportunity to obtain prior arbitration awards and use …
Tale Of Two Policies: Corporate Immunity And Its Negative Externalities, The Worst Of Times For Consumers, A, David Ma
Journal of Dispute Resolution
When the Third Circuit Court of Appeals, in Kaneff v. Del. Title Loans, Inc., faced a Pennsylvania statute that prohibited payday loans,' the Third Circuit refused to enforce the state statute. This note will explore the reasoning underlying and discuss the effects of the Third Circuit's decision, providing a consequential look at the externalities that Kaneff created. As will become evident, these effects are quite serious and far-reaching, both to Pennsylvania's citizens and Pennsylvania's regulatory scheme.
Legislating In The Light: Considering Empirical Data In Crafting Arbitration Reforms, Amy J. Schmitz
Legislating In The Light: Considering Empirical Data In Crafting Arbitration Reforms, Amy J. Schmitz
Faculty Publications
Consumer advocates and policymakers call for abolition of predispute arbitration clauses in consumer contracts, while proponents of arbitration claim such abolition would increase companies’ dispute resolution costs, leading to higher prices and interest rates. Policymakers on both sides of the debate, however, rarely consider the empirical research necessary for crafting informed arbitration disclosure rules. This article therefore focuses on how varied research, including my own empirical studies, may inform policies regarding arbitration disclosure regulations. The article also offers suggestions for regulations tailored to have the most impact for the cost in light of this research.
Arbitration Clauses In Contracts Of Adhesion Trap Sophisticated Parties Too, Andrea Doneff
Arbitration Clauses In Contracts Of Adhesion Trap Sophisticated Parties Too, Andrea Doneff
Journal of Dispute Resolution
Part II of this Article will provide a survey of the FAA, the cases that have enforced it since its passage in 1925, and the distinctions made by the drafters and the courts. Part III addresses a number of the common themes and limitations raised by cases applying the FAA, including the ability to protect statutory rights, the right to contract and have courts enforce contractual obligations, the need to protect consumers subject to mandatory arbitration clauses, and the need for finality in arbitration. Part IV reviews recent legislative and Supreme Court decisions considering issues regarding sophisticated and unsophisticated parties …
Building Bridges To Resolve Conflict And Overcome The Prisoner's Dilemma: The Vital Role Of Professional Relationships In The Collaborative Law Process, David Hoffman, Dawn Ash
Building Bridges To Resolve Conflict And Overcome The Prisoner's Dilemma: The Vital Role Of Professional Relationships In The Collaborative Law Process, David Hoffman, Dawn Ash
Journal of Dispute Resolution
Part 1 of this article describes the rapid growth of Collaborative Practice and the dense fabric of professional relationships that has been woven with the Collaborative Practice community. Part H explores the Prisoner's Dilemma, which explains why, in the absence of such relationships and mutual commitments to collaboration, there are hard-to-resist pressures to engage in competitive, win-lose, adversarial forms of negotiation. Part II also explores the role that lawyers can play in overcoming those pressures. Part III is based on interviews with teams of Collaborative lawyers and other professionals, who describe the personal qualities and skills that support strong relationships …
Pitfalls And Possibilities Of Using Technology In Mediating Cross-Border Child Custody Cases, The, Melissa A. Kucinski
Pitfalls And Possibilities Of Using Technology In Mediating Cross-Border Child Custody Cases, The, Melissa A. Kucinski
Journal of Dispute Resolution
This paper will explore current efforts to ensure parents have the opportunity to elect voluntary mediation with a skilled international family mediator to resolve issues stemming from one parent traveling to another country with the parties' child, against the wishes of the co-parent. Additionally, this paper will explore, in general, the practical and substantive considerations in mediating a cross-border child custody case, with a focus on one issue of primary concern-the use of technology in these mediations. The paper will additionally include a discussion on whether technology will hinder or help resolution when considering cultural differences. Many mediators prefer to …
Obituary For The Federal Arbitration Act: An Older Cousin To Modern Civil Procedure, An, Imre S. Szalai
Obituary For The Federal Arbitration Act: An Older Cousin To Modern Civil Procedure, An, Imre S. Szalai
Journal of Dispute Resolution
In order to explore the different ways in which the FAA is related to the development of modern civil procedure, this article is divided into four main parts. first, this article discusses how the FAA is related to the Judiciary Act of 1925. Second, this article focuses on the FAA's relationship to the enactment of the Rules Enabling Act and the related adoption of the Federal Rules of Civil Procedure. Third, this article discusses how the Supreme Court's transformation of the doctrine of personal jurisdiction in International Shoe is related to the enactment of the FAA. Fourth, this article discusses …
State Legislative Update , Josephine Larison, Steven Robson, Elizabeth Russell, Derek Ankrom
State Legislative Update , Josephine Larison, Steven Robson, Elizabeth Russell, Derek Ankrom
Journal of Dispute Resolution
Vermont House Bill 663 would modify current law to follow a national trend of special medical malpractice statutes that require the arbitration of such claims, as well as following a similar trend to limit noneconomic and non-pecuniary damage recovery.' Arbitration for medical malpractice claims has been allowed under state law for more than thirty years. The bill, sponsored by nine members of the General Assembly, sought to amend the "Voluntary Arbitration Chapter," chapter 215 (§§ 7001-7009) and add a provision to section 1913 of Vermont Statute Title 12.
More Than Just Territorial: The 8th Circuit Establishment A Resourceful Precedent In Claiming Jurisdiction Over Denials To Compel Arbitration, Ashley Marshall
More Than Just Territorial: The 8th Circuit Establishment A Resourceful Precedent In Claiming Jurisdiction Over Denials To Compel Arbitration, Ashley Marshall
Journal of Dispute Resolution
This note argues that the Eighth Circuit's decision to claim jurisdiction in Industrial Wire Products, Inc. v. Costco Wholesale Corp. was practical and resourceful, as that court is better suited to decide matters of contract interpretation. The highly specialized Federal Circuit should devote its time and expertise to governing cases in particular areas of law, like patent litigation and administrative law. This note further argues that the Eighth Circuit preserved judicial resources and adhered to the parties' intentions in holding that the patent infringement claims were required to proceed through arbitration.
Mediation Tune Up For The State Court Appellate Machine, A, Bobbi Mcadoo
Mediation Tune Up For The State Court Appellate Machine, A, Bobbi Mcadoo
Journal of Dispute Resolution
This Article begins in Part II with a review of the rationale for appellate mediation programs. In Part III the Article will discuss the development and evaluation of a pilot program for the mediation of family appellate cases in Minnesota. The pilot was developed and implemented with the goals of settlement and other qualitative justice measures in mind. Moreover, preliminary evaluation results for the pilot suggest that both continue to be important and can be achieved.3 In Part IV the Article will discuss the elements of program design most likely to make appellate mediation programs succeed, in terms of both …
Union Refusal To Arbitrate: Pyett's Unanswered Question, F. Ryan Van Pelt
Union Refusal To Arbitrate: Pyett's Unanswered Question, F. Ryan Van Pelt
Journal of Dispute Resolution
Kravar v. Triangle Services, Inc., provides the most workable solution to date, balancing competing union, employer, and employee interests. Kravar gives an employee access to federal court, as a matter of right, in the face of union refusal to arbitrate his or her federal statutory claims.8 Although the Federal District Court for the Southern District of New York offered little discussion of the policy behind its new rule, there are sound policy rationales underlying it.
Foreclosure By Arbitration?, R. Wilson Freyermuth
Foreclosure By Arbitration?, R. Wilson Freyermuth
Faculty Publications
The recession and the drastic decline in home values have combined to trigger a wave of foreclosures. Predictably, legislators, policymakers, scholars, and consumer advocates have responded with a wide range of proposals designed to protect distressed mortgagors from losing their homes.
Collaborative Lawyers' Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients' Informed Consent To Use Collaborative Law, John M. Lande, Forrest Steven Mosten
Collaborative Lawyers' Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients' Informed Consent To Use Collaborative Law, John M. Lande, Forrest Steven Mosten
Faculty Publications
Collaborative Law (CL) is an innovative dispute resolution process that offers significant benefits but also poses significant non-obvious risks. This Article provides a systematic analysis of these possible risks as identified in books written by CL experts, CL practice group websites, social science research, and bar association ethics opinions. In CL, the lawyers and clients sign a "participation agreement" promising to use an interest-based approach to negotiation and fully disclose all relevant information. A key element of CL is the "disqualification agreement" signed by parties (and sometimes by attorneys) which provides that both CL lawyers would be disqualified from representing …
‘Drive-Thru’ Arbitration In The Digital Age: Empowering Consumers Through Regulated Odr, Amy J. Schmitz
‘Drive-Thru’ Arbitration In The Digital Age: Empowering Consumers Through Regulated Odr, Amy J. Schmitz
Faculty Publications
Online Dispute Resolution (ODR) has been promoted for quickly and conveniently resolving claims using online “drive-thru” processes instead of more costly and time-consuming face-to-face meetings and hearings. Most commentators have nonetheless focused mainly on non-binding or automated bidding processes, perhaps due in part to fairness concerns associated with off-line arbitration. This Article, however, explores the potential for online binding arbitration (OArb), and sheds new light on arbitration as means for empowering consumers to obtain remedies on their e-merchant claims. By moving arbitration online, OArb helps address concerns regarding companies’ use of arbitration clauses to curb consumers’ access to remedies on …
Evolving Schizophrenic Nature Of Labor Arbitration, The, Martin H. Malin
Evolving Schizophrenic Nature Of Labor Arbitration, The, Martin H. Malin
Journal of Dispute Resolution
Commentators have rightly criticized Pyett for its complete disregard of decades of established precedent. In this article, however, I situate the Pyett decision in the context of an ongoing evolution in labor arbitration as that institution has tried to accommodate the intrusion of public law claims into a private system of workplace self-governance. I suggest that labor arbitration has developed a kind of schizophrenic existence, preserving its role as a substitute for strikes and other workplace strife in a private system of self-governance while accommodating an additional role as a substitute for litigation of public law claims. Nevertheless, I find …
Sweet Vindication: The Second Circuit Strikes A Blow To Companies That Use Class-Action Waivers In Arbitration Agreements To Avoid The Law, Samuel E. Buffaloe
Sweet Vindication: The Second Circuit Strikes A Blow To Companies That Use Class-Action Waivers In Arbitration Agreements To Avoid The Law, Samuel E. Buffaloe
Journal of Dispute Resolution
Other scholars and courts have concluded that when a class action waiver prevents a plaintiff from vindicating his statutory rights, that waiver should be unenforceable. The U.S. Court of Appeals for the Second Circuit took this approach in In re American Express Merchants' Litigation. The court, however, was careful to point out that these class-action waivers should not be considered unenforceable per se, but that courts must examine each waiver on a case-by-case basis. This note will examine the court's reasoning and will discuss what courts and Congress should do to protect consumers when companies use class-action waivers to avoid …
The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students For Real World Lawyering, John M. Lande, Jean R. Sternlight
The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students For Real World Lawyering, John M. Lande, Jean R. Sternlight
Faculty Publications
This Article briefly reviews the long history of critiques of legal education that highlight the failure to adequately prepare students for what they will and should do as attorneys. It takes a sober look at the hurdles reformers face when trying to make significant curricular changes and proposes a modest menu of reforms that interested faculty and law schools can largely achieve without investing substantial additional resources.This Article emphasizes the special contributions that alternative dispute resolution (ADR) can provide to legal education more generally. ADR instruction is an important corrective to a curriculum that routinely conveys the erroneous implication that …
Disputatio: Creeping Legalism As A Declension Myth, Dennis R. Nolan
Disputatio: Creeping Legalism As A Declension Myth, Dennis R. Nolan
Journal of Dispute Resolution
The term "creeping legalism," the topic of this symposium, applies to several different developments in labor arbitration. This essay examines each of those developments and explains why that pejorative term misses its mark.
Fallout From 14 Penn Plaza V. Pyett: Fractured Arbitration Systems In The Unionized Workplace, Ann C. Hodges
Fallout From 14 Penn Plaza V. Pyett: Fractured Arbitration Systems In The Unionized Workplace, Ann C. Hodges
Journal of Dispute Resolution
First, the article will review the history of arbitration of statutory employment claims, including the Pyett decision. Second, the article will look at the history and causes of legalism in arbitration. Then the article will consider the probable responses of employers and unions to Pyett. While predictions are necessarily speculative, it is likely that some unionized employers will seek to require employees to arbitrate statutory claims, perhaps in higher percentages than in the nonunion workplace. While unions may, and perhaps should, resist, many future collective bargaining agreements (CBAs) may contain such provisions. The article then discusses the alternative dispute resolution …
Irreconcilable Deferences - The Troubled Marriage Of Judicial Review Standards Under The Steelworkers Trilogy And The Federal Arbitration Act, Michael H. Leroy
Irreconcilable Deferences - The Troubled Marriage Of Judicial Review Standards Under The Steelworkers Trilogy And The Federal Arbitration Act, Michael H. Leroy
Journal of Dispute Resolution
To explore the ramifications of this hybrid, labor-employment discrimination award, I ask what standards would a court apply to review an arbitrator's ruling. The Steelworker's Trilogy-three Supreme Court decisions that explain to courts how to review awards under section 301 of the Labor-Management Relations Act-pronounce deferential standards. But until now, individual employment awards have typically been reviewed under section 10 of the Federal Arbitration Act (FAA) or state law equivalents. My research on labor awards and individual employment awards show that courts do not behave the same under these different regimes. They enforce about seventy-two percent of labor awards, but …
Mediation In Employment And Creeping Legalism: Implications For Dispute Systems Design, Lisa Blomgren Bingham, Susan Summers Raines, Timothy Hedeen, Lisa Marie Napoli
Mediation In Employment And Creeping Legalism: Implications For Dispute Systems Design, Lisa Blomgren Bingham, Susan Summers Raines, Timothy Hedeen, Lisa Marie Napoli
Journal of Dispute Resolution
This article will explore the question of creeping legalism in mediation of statutory disputes arising out of employment. First, it will briefly review the issue of creeping legalism in arbitration. Second, it will introduce dispute systems design (DSD). Third, it will review the analogous debate on legalism in mediation in three design contexts: evaluative mediation of employment disputes in the court-connected setting, grievance mediation embedded in the collective bargaining agreement, and transformative mediation of employment disputes in the United States Postal Service's (USPS's) REDRESS program. Most employees do not face a choice among mediation models; instead, they choose among adjudicative …
Arbitration Nation: While Arbitration Grows, Judicial Review Of Arbitral Awards May Be Shrinking, F. Shabnam Nouraie
Arbitration Nation: While Arbitration Grows, Judicial Review Of Arbitral Awards May Be Shrinking, F. Shabnam Nouraie
Journal of Dispute Resolution
In Sands v. Menard, Inc., the Court of Appeals of Wisconsin upheld an arbitration award reinstating a discharged attorney to her position as in-house counsel. On appeal, the court refused to vacate the reinstatement order, notwithstanding the fact that reinstatement was not requested or desired by either party, the effect of reinstatement was likely to violate the ethical rules that bind attorneys, and other remedies were available to compensate the aggrieved party. This note explores the limited but important role that judicial review plays, and will continue to play, in arbitration and how this role affected the outcome of Sands …
Holistic Strategy For Coming To Grips With The Creeping Legalism Of Labor Arbitration, A, Stephen L. Hayford
Holistic Strategy For Coming To Grips With The Creeping Legalism Of Labor Arbitration, A, Stephen L. Hayford
Journal of Dispute Resolution
The commentary that follows is a call to advocates to take back responsibility for settling the disputes that arise during the life of the collective bargaining agreement by becoming more adept negotiators, able and willing to find and engage the truth and unafraid to lead and make difficult decisions. Only then will the legal machinations and contortions that increasingly plague labor arbitration be rendered unnecessary in most circumstances. I assert that the "creeping legalism" of labor arbitration is a symptom of the too-frequent failure of the contractual grievance procedure to resolve difficult disputes. The conundrum that phenomenon presents can be …
All Bound Up With No Place To Go: A Lack Of Individual Alternatives To Binding Arbitration Provisions For Statutory Claims, Matthew Gierse
All Bound Up With No Place To Go: A Lack Of Individual Alternatives To Binding Arbitration Provisions For Statutory Claims, Matthew Gierse
Journal of Dispute Resolution
For the greater part of the twentieth century, arbitration has played a large role in resolving disputes between unions representing employees and employers. However, during the past few decades, these employment contracts began to incorporate mandatory arbitration agreements for statutory discrimination claims, with at least one-fifth of all employees presently subject to mandatory arbitration. During this same period, courts began to broaden the ability of employees to waive their right to a judicial forum for statutory claims; Tewolde v. Owens & Minor Distribution is no exception. In 2009, the U.S. Supreme Court ruled for the first time that a union …