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Articles 1 - 26 of 26
Full-Text Articles in Law
Inetianbor And Green: How Two Payday Loan Disputes Illustrate The Integrality Rule’S Incompatibility With The Faa, Cameron C. Lincoln
Inetianbor And Green: How Two Payday Loan Disputes Illustrate The Integrality Rule’S Incompatibility With The Faa, Cameron C. Lincoln
Journal of Dispute Resolution
The integrality rule is a rule grounded in the analysis of party intent and allows for an arbitration agreement to be vitiated if the selected forum is unavailable and the forum was integral to the agreement. The integrality rule, conceived in 1990, has a short history, and while it is followed by several federal appellate circuits, it is not consistently named or referenced. The Eleventh Circuit applied the rule in Inetianbor v. CashCall, Inc., where the court precluded arbitration due to the integrality rule. This case raises questions of whether the integrality rule contradicts the Federal Arbitration Act (FAA), whether …
Be Careful What You Do Not Ask For: Contracts With The Federal Government For Which Purely Nonmonetary Relief Exists In The Event Of Breach Must Provide For Monetary Damages To Make Them Available To Non-Breaching Private Parties, Matthew W. Cecil
Journal of Dispute Resolution
By further limiting access to one of the only forums in which private parties may seek monetary damages over $10,000 from the federal government, the United States Federal Circuit Court of Appeals in Higbie v. United States1 has ensured non-breaching private parties will not be wholly compensated for their injuries and has undermined the court’s own interest in bolstering mediation.
The Special Nature Of International Insurance And Reinsurance Arbitration: A Response To Professor Jerry, S. I. Strong
The Special Nature Of International Insurance And Reinsurance Arbitration: A Response To Professor Jerry, S. I. Strong
Journal of Dispute Resolution
No abstract provided.
State Legislative Update, Morgan L. Maples, Timothy Mcaleenan, Julia Neidhardt, Spring E. Taylor
State Legislative Update, Morgan L. Maples, Timothy Mcaleenan, Julia Neidhardt, Spring E. Taylor
Journal of Dispute Resolution
Effective July 1, 1995, as part of the nursing facility enforcement regulations, the Centers for Medicare & Medicaid Services required states to provide nursing facilities with the opportunity for informal dispute reolution reviews. This dispute resolution system was set up in order to avoid the potentially prolonged resolution process associated with more formal appeals. These regulations do not prevent a nursing facility from pursuing a former appeal of the disputed deficiency, but the regulations do give an expedited alternative to the formal process.
Mediating A Family: The Use Of Mediation In The Formation And Enforcement Of Post-Adoption Contact Agreements, Sophie Mashburn
Mediating A Family: The Use Of Mediation In The Formation And Enforcement Of Post-Adoption Contact Agreements, Sophie Mashburn
Journal of Dispute Resolution
This comment will discuss how and why adoption law has evolved into a preference for open adoption, provide a brief history of post-adoption contact agreements, and discuss the current and best practices for utilizing post-adoption contact agreements. Finally, this comment will explore the use of mediation in various states to assist adoptive parents and birth parents in forming and maintaining an agreement they both accept and that furthers the best interests of the children being adopted. Using mediation to further the interests of children, adoptive couples, and birth parents is a positive trend in adoption law that should be encouraged …
Do Judicially Created Grounds For Vacating Arbitral Awards Still Exist?: Why Manifest Disregard Of The Law And Public Policy Exceptions Should Be Considered Under Vacatur, Ashley K. Sundquist
Do Judicially Created Grounds For Vacating Arbitral Awards Still Exist?: Why Manifest Disregard Of The Law And Public Policy Exceptions Should Be Considered Under Vacatur, Ashley K. Sundquist
Journal of Dispute Resolution
The Court’s strong language in Hall Street indicated the Court’s intent for the FAA to provide the exclusive grounds for vacating an arbitral award. Therefore, once the Court addresses the circuit split, it will likely hold that judicially created grounds are not an acceptable form of vacatur. However, doing so would cause individuals injustice, in particular where awards manifestly disregard the law and go against public policy. This Note argues that if the Court abolishes judicially created grounds, it should reinterpret the FAA to include manifest disregard of the law and violations to public policy under the exceeded powers exception …
Get The Best Of Both Worlds: Illusory Arbitration Agreements, Desiree Shay
Get The Best Of Both Worlds: Illusory Arbitration Agreements, Desiree Shay
Journal of Dispute Resolution
This Note addresses the clauses in franchise-franchisee agreements that preserve the right for a franchisor to unilaterally alter the terms of arbitration after the franchise relationship has begun. A majority of courts, applying state contract law, have held that these clauses are unenforceable due to a lack of consideration, making the contract illusory. However, courts still come to different conclusions because each court has to follow state contract law. The United States Supreme Court’s holding on this issue might not be able to have full effect because the Federal Arbitration Act requires that courts rely on state law. The Seventh …
Dispute Resolution, Insurance, And Points Of Convergence, Robert H. Jerry Ii
Dispute Resolution, Insurance, And Points Of Convergence, Robert H. Jerry Ii
Journal of Dispute Resolution
This essay explores the intersection of dispute resolution and insurance. I come to the intersection from the perspective of insurance law, where statutes, administrative rules, and common law regulate the industry and the policyholder-insurer relationship. At its core, the business of insurance offers individuals, businesses, and other kinds of organizations a risk management alternative which enables them to acquire some measure of control over an uncertain future. But when a loss occurs, the business of insurance becomes the business of claims processing and, when disagreements arise, dispute resolution. Surprisingly, the academic study of insurance law has not borrowed heavily from …
My Last Lecture: More Unsolicited Advice For Future And Current Lawyers, John M. Lande
My Last Lecture: More Unsolicited Advice For Future And Current Lawyers, John M. Lande
Journal of Dispute Resolution
For quite a while, I have been writing and teaching to prepare students realistically for legal practice. This article distills my thinking into a concise presentation. I wrote this article primarily for law students as they contemplate their careers, but I hope it will be of value to lawyers as well. Hopefully, it will whet your appetite to pursue these ideas more deeply by reading some of the sources cited in the footnotes.
Judicial Bias: The Ongoing Challenge, Kathleen Mahoney
Judicial Bias: The Ongoing Challenge, Kathleen Mahoney
Journal of Dispute Resolution
This article calls for a renewed commitment to judicial education on the roles that gender, race, class and other biases can have on judicial decisions and impartiality. This article also calls for the appointment of a more representative and diverse judiciary. An explosion of activity occurred for about a decade between the late 1980s until the late 1990s to promote and implement social context education for judges to help judges understand the realities of people most unlike themselves, and to appoint judges to be more representative of the population of Canada. But this trend has diminished to the point that …
International Arbitration, Judicial Education, And Legal Elites, Catherine A. Rogers
International Arbitration, Judicial Education, And Legal Elites, Catherine A. Rogers
Journal of Dispute Resolution
This essay sketches an account of how investment arbitration affects development of local legal institutions, in particular domestic courts. When investment arbitration is introduced into a local legal environment, it becomes integrated with international commercial arbitration, and often domestic arbitration. This integration occurs because the local economic elites, private law firms, and local businesses that deal with (or compete with) foreign investors and investment arbitration disputes also deal with international commercial matters, international commercial disputes, and domestic arbitration.
Arbitration Whack-A-Mole: The Federal Policy Favoring Arbitration Hammers The Rights Of Individual Employees, Spring E. Taylor
Arbitration Whack-A-Mole: The Federal Policy Favoring Arbitration Hammers The Rights Of Individual Employees, Spring E. Taylor
Journal of Dispute Resolution
In a country that protects the plaintiff's right to a day in court, it only seems natural that Sally should have the opportunity to take her cause to the courthouse. But the strong fedral presumption that supports the enforcement of arbitration provisions is like a hammber that pushes plaintiffs like Sally and those if Huffman into the arbitration arena. In Huffman, the Sixth Circuit rescued an employwer from an ambiguous arbitration provision contained in the employer-drafted employment agreement and enforced the arbitration provision as one of the provisions to survive expiration of the contract, even though it was not listed …
Judicial Education And Regulatory Capture: Does The Current System Of Educating Judges Promote A Well-Functioning Judiciary And Adequately Serve The Public Interest?, S. I. Strong
Journal of Dispute Resolution
First, the Essay considers certain obstacles to research concerning judicial education as a means of determining why more scholars have not sounded an alarm regarding practices in this field (Section II). The Essay then addresses a number of issues relating to the current approach to judicial education to determine whether and to what extent judicial control over this issue can be considered problematic (Section III). That analysis leads logically into a discussion of various ways that the possibility of regulatory capture of judicial education could be diminished (Section IV). Finally, the Essay concludes by drawing together various strands of analysis …
What Judges Want And Need: User-Friendly Foundations For Effective Judicial Education, Duane Benton, Jennifer A.L. Sheldon-Sherman
What Judges Want And Need: User-Friendly Foundations For Effective Judicial Education, Duane Benton, Jennifer A.L. Sheldon-Sherman
Journal of Dispute Resolution
This article evaluates the connection between judicial education and judges’ needs and preferences. In Part I, we begin by discussing the history, purpose, and form of judicial education, charting its evolution over time. In Part II, we examine current judicial education programs and scholarship, highlighting differences and similarities between federal and state programming. In Part III, we analyze the limitations of existing scholarship and programming, arguing judicial education programs are insufficiently tied to evidence of judicial demands. We conclude in Parts IV and V by suggesting two proposals to align programming with needs: (1) an annual needs-based assessment of judicial …
Towards A New Paradigm Of Judicial Education, Mary R. Russell
Towards A New Paradigm Of Judicial Education, Mary R. Russell
Journal of Dispute Resolution
When talking about judicial education, a central question emerges: What is the goal of judicial education for judges? A simple answer springs to mind: To make us better judges, of course. This of course is a deceptively simple question with a deceptively simple answer, until there is an attempt to specifically identify how to accomplish this worthy judicial education goal, and that is where simplicity disappears
Writing Reasoned Decisions And Opinions: A Guide For Novice, Experienced, And Foreign Judges, S. I. Strong
Writing Reasoned Decisions And Opinions: A Guide For Novice, Experienced, And Foreign Judges, S. I. Strong
Journal of Dispute Resolution
Producing well-written reasoned judgments (a term that is used herein to denote both trial court decisions and appellate opinions) is the goal of all members of the bench. Badly written rulings can have significant legal consequences for both the parties, who may incur costs as a result of a need to appeal a poorly worded decision or opinion, and society as a whole, since a poorly drafted precedent may drive the law in an unanticipated and unfortunate direction or lead to increased litigation as individuals attempt to define the parameters of an ambiguous new ruling. As a result, helping judges …
Of Judges, Law, And The River: Tacit Knowledge And The Judicial Role, Chad M. Oldfather
Of Judges, Law, And The River: Tacit Knowledge And The Judicial Role, Chad M. Oldfather
Journal of Dispute Resolution
“What does it mean to be a judge?” That’s a tall order, and one is tempted to begin—and perhaps to end—by formulating taxonomy of characteristics that judges ought to have. Indeed, that is a tactic that others have used. The resulting lists differ in their particulars, but are broadly similar. The enumerated traits include attributes like intelligence, legal knowledge, judgment, decisiveness, and so on.
Educating Judges—Where To From Here?, Livingston Armytage
Educating Judges—Where To From Here?, Livingston Armytage
Journal of Dispute Resolution
In this article, I present a critique of the emerging global practice of judicial education, which has been established and grown substantially over the past thirty years. There are four challenges relating to vision, pedagogy, knowledge and leadership that confront the continuing development of judicial education.
Judicial Education: Pedagogy For A Change, T. Brettel Dawson
Judicial Education: Pedagogy For A Change, T. Brettel Dawson
Journal of Dispute Resolution
Canadian judges have maintained a steadfast, long-term commitment to judicial education. Through teaching one another, judges renew their vision over time, and more concretely, address their concerns and challenges today. Since its inception in 1985, the National Judicial Institute (NJI) has sought to be a partner and a resource to judges and Courts in a shared endeavour to create relevant, practical, and effective judicial education. Working together, the NJI, judges, and Courts have built a “Canadian model” of judicial education widely respected and emulated.
“Throwing The Baby Out With The Bathwater”: Parenting Coordination And Pennsylvania’S Decisions To Eliminate Its Use, Sophie B. Mashburn
“Throwing The Baby Out With The Bathwater”: Parenting Coordination And Pennsylvania’S Decisions To Eliminate Its Use, Sophie B. Mashburn
Journal of Dispute Resolution
Parenting coordination is a relatively new ADR practice utilized by courts to assist in resolving high conflict divorce cases. Though considered controversial by some, it can also serve as an effective tool for divorced parents who struggle with regular co-parenting decisions. Parenting coordination is defined as: A child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children’s needs, and with prior approval of the parties and/or court, making …
Let Me In: The Right Of Access To Business Disputes Conducted In State Courts, David W. Brown
Let Me In: The Right Of Access To Business Disputes Conducted In State Courts, David W. Brown
Journal of Dispute Resolution
After examining the history of the First Amendment right of access to civil proceedings, this note will analyze how the two-pronged historical test applies to arbitrations conducted in a state court. The prongs of the test — experience and logic — provide the framework for the analysis conducted in this note.6 This note argues the analysis conducted in Strine was the correct approach, and suggests the implementation of Sunshine Laws similar to those in other states as a constitutionally permissible alternative that would satisfy the holding in Strine.
Deference, Clarity, And The Future Of Arbitration In Investor-State Dispute Settlements, Robert N. Mace
Deference, Clarity, And The Future Of Arbitration In Investor-State Dispute Settlements, Robert N. Mace
Journal of Dispute Resolution
The result in BG Group, PLC demonstrates the Court’s desire to sustain arbitration as an effective and independent means of resolving disputes. The Court displayed an inclination to limit the influence of the judiciary on the process of BIT arbitration, recognizing the important position of BITs in global commerce and the prominence of the United States. Ultimately, the Court aligned the interpretive framework of domestic and international arbitration review in an effort to simplify review for courts and better inform stakeholders to the level of involvement of the judicial system in BITs that contain arbitration provisions.
Judging As Judgment: Tying Judicial Education To Adjudication Theory, Robert G. Bone
Judging As Judgment: Tying Judicial Education To Adjudication Theory, Robert G. Bone
Journal of Dispute Resolution
The thesis of this Article, simply stated, is that judicial education makes sense only against the backdrop of general ideas and beliefs about law, courts, and adjudication. These ideas and beliefs motivate a focus on educating judges and help guide more specific pedagogical choices. I explore this broad thesis from both a historical and a normative perspective. Historically, I argue that interest in judicial education caught fire in the 1960s in large part because of prevailing beliefs about law and the proper function of courts. Normatively, I argue that the connection between judicial education and normative views of courts and …