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Full-Text Articles in Law
How Can Practitioners Help Clients Assess Their Interests And Risks In Litigation?, John Lande
How Can Practitioners Help Clients Assess Their Interests And Risks In Litigation?, John Lande
Faculty Blogs
This post summarizes the discussion at a Quinnipiac-Yale Dispute Resolution Workshop. It highlights some practical ideas that the audience suggested about clients’ interests, timing of discovery and mediation, possible trial outcomes, legal fees, consequences of litigation, and decision fatigue in “marathon mediations.”
Reality-Testing Questions For Real Life And Simulations – And Ideas For Stone Soup Assignments, John Lande
Reality-Testing Questions For Real Life And Simulations – And Ideas For Stone Soup Assignments, John Lande
Faculty Blogs
Although litigants and their lawyers may generally recognize that litigants will incur some intangible costs, they often do not consider the numerous intangible ways that litigants can be harmed and do not carefully assess these costs when making litigation decisions. Sometimes litigants’ intangible costs are much more important to them than the tangible costs. This post provides detailed descriptions of some of these costs, and includes questions that lawyers and mediators should ask clients to identify and value intangible costs.
What Do Litigants Really Want?, John M. Lande
What Do Litigants Really Want?, John M. Lande
Faculty Blogs
This post discusses Donna Shestowsky’s article, Inside the Mind of the Client: An Analysis of Litigants’ Decision Criteria for Choosing Procedures. Her study found that the decision-making factor that subjects most often cited was their lawyers’ advice. Donna argues, “Given the extent to which litigants are predisposed to following their lawyers’ advice about which procedures to use, lawyers should attempt to understand their clients’ interests, values, and objectives before sharing their personal evaluations of procedures to avoid imposing their own views.”
Keet And Heavin On Why Litigation Interest And Risk Assessment Is So Darn Important For Lawyers And Mediators – And How You Can Make Stone Soup With It, John Lande
Faculty Blogs
This post provides links to law review articles by Michaela Keet and Heather Heavin that provide the foundation for the LIRA book.
Our Obligation: Protecting Free Speech And Fostering Inclusive Environments, Patricia Telles-Irvin
Our Obligation: Protecting Free Speech And Fostering Inclusive Environments, Patricia Telles-Irvin
Journal of Dispute Resolution
There is much discussion and debate these days on college campuses on how to protect freedom of expression while, at the same time, cultivate an inclusive en-vironment that promotes learning for all members of the community. While it is clear that freedom of expression is fundamental to the mission of an institution of higher education, creating an inclusive community can be challenging when toxic speech, under the protection of the First Amendment, aims only to demean and marginalize groups of individuals with no true redeeming value to advance knowledge. If our core mission is to educate by allowing the expression …
The Jury Is Out: Mandating Pre-Treatment Arbitration Clauses In Patient Intake Contracts, Sarah Sachs
The Jury Is Out: Mandating Pre-Treatment Arbitration Clauses In Patient Intake Contracts, Sarah Sachs
Journal of Dispute Resolution
This Comment advocates against the use of mandatory arbitration clauses in healthcare providers’ patient intake contracts and discusses the interplay between federal and state statutes that create disparities in enforceability and unenforceability of mandatory arbitration clauses in state courts. Part II discusses the history of mandatory arbitration and its development in healthcare providers’ patient intake contracts. Part III examines state statutory limitations on pre-treatment arbitration clauses. Finally, Part IV addresses how courts analyze these agreements and possible approaches to avoid mandatory arbitration arising in healthcare providers’ patient intake contracts.
The European Succession Regulation And The Arbitration Of Trust Disputes, S. I. Strong
The European Succession Regulation And The Arbitration Of Trust Disputes, S. I. Strong
Faculty Publications
Over the last few decades, U.S. citizens have become increasingly mobile, with significant numbers of individuals living, working, and investing abroad. Estate planning has become equally international, generating ever-larger numbers of cross-border succession cases. While these sorts of developments are welcome, they require lawyers to appreciate and anticipate the various ways that the laws of different jurisdictions can interact. One of the most important recent developments in international succession law comes out of the European Union. While the European Succession Regulation may initially appear applicable only to nationals of E. U. Member States, U.S. citizens can also be affected by …
The First Amendment, The University And Conflict: An Introduction To The Symposium, Christina E. Wells
The First Amendment, The University And Conflict: An Introduction To The Symposium, Christina E. Wells
Journal of Dispute Resolution
This Symposium addresses our continuing issues with campus speech conflicts. It aims to help us recognize that speech conflicts are not abstract disputes between ideas – Justice Holmes’s famous rhetoric notwithstanding. Rather our words and ideas represent underlying conflicts between very real people and groups. The speech we use may cause, exacerbate, or resolve conflicts. Sometimes the Supreme Court’s free speech doctrine can aid our understanding and resolution of these conflicts. Other times it cannot. Regardless, simply relying on a First Amendment frame – i.e., claiming that it is one’s right to express oneself in a par-ticular way – may …
Free Speech Conflict: What We Learned At Middlebury College, Baishakhi Taylor
Free Speech Conflict: What We Learned At Middlebury College, Baishakhi Taylor
Journal of Dispute Resolution
On February 16, Middlebury’s President, Dr. Laurie L. Patton, received an invitation from a student group called the American Enterprise Institute Club (AEI) to give opening remarks at a lecture by a speaker they had invited to campus. The Club was Middlebury’s student chapter of the AEI,8 a conservative think-tank based in Washington, D.C., which has student clubs all across the coun-try. The speaker was Dr. Charles Murray, an American political scientist who is now an AEI emeritus scholar. This was not Dr. Murray’s first visit to the College. He had previously visited the campus for a lecture in 2007, …
The Centrality Of Ongoing Relationships, Jacob Appelsmith
The Centrality Of Ongoing Relationships, Jacob Appelsmith
Journal of Dispute Resolution
Should anyone feel positive after a day of discussing the First Amendment in the context of threats to American universities and colleges from Nazis, white su-premacists, anarchists, and others using the campus as the staging ground for disruption and violence? Yes, because it was clear from the Center for the Study of Dispute Resolution’s (“CSDR”) Symposium, at the University of Missouri School of Law, that the evolution in thought over the past year on how institutions of higher education should handle these challenges is truly remarkable. The speakers as a body demonstrated that if an institution is thoughtful in its …
Framing Campus Free Expression Conflict Through A Dispute Resolution Optic: Insights For Campus Leaders, Robert H. Jerry Ii
Framing Campus Free Expression Conflict Through A Dispute Resolution Optic: Insights For Campus Leaders, Robert H. Jerry Ii
Journal of Dispute Resolution
This Essay, with campus leaders as its intended audience (i.e., presidents, chancellors, provosts, deans, department chairs, and faculty, staff, and student governance leaders), maintains that acquaintance with constructs familiar to dispute resolution scholars and practitioners can deepen understanding of free expression conflict on college campuses, increase self-awareness and enhance leaders’ ability to act consciously and purposively in response to conflict, and help equip campus leaders with useful tools for managing conflict when it arises. This Essay will stress framing, but many constructs in the dispute resolution field illuminate the techniques and skills campus leaders need if they are to manage …
Private Universities And The First Amendment, Ben Trachtenberg
Private Universities And The First Amendment, Ben Trachtenberg
Journal of Dispute Resolution
This Article questions whether private colleges and universities should act as though the First Amendment applies to them in the same way it constrains the policy of public colleges and universities. Specifically, the Article examines the common suggestion—by laypersons, lawyers, and scholars alike—that private universities ought to tolerate offensive, hateful, bigoted speech because the values animating First Amendment jurisprudence are similar to those guiding the decisions of good universities committed to free inquiry and the open exchange of ideas. It then notes that this suggestion, while commonly made, is rarely defended with much rigor or vigor. The Article next marshals …
“It All Started With A Mouse”: Resolving International Trademark Disputes Using Arbitration, Ashlyn Calhoun
“It All Started With A Mouse”: Resolving International Trademark Disputes Using Arbitration, Ashlyn Calhoun
Journal of Dispute Resolution
This Comment will address how arbitration can resolve international trademark disputes by examining the nature of both international disputes and trademark disputes. In order to do so, Part II will discuss the nature of domestic and international trademark disputes. Part III will examine the benefits of using arbitration in place of litigation. Finally, Part IV will evaluate the use of arbitration to resolve trademark disputes.
“Hardly Be Said To Offer An Education At All”: Endrew And Its Impact On Special Education Mediation, Grant Simon
“Hardly Be Said To Offer An Education At All”: Endrew And Its Impact On Special Education Mediation, Grant Simon
Journal of Dispute Resolution
As the standards for special education students in America rise, the need to handle the resulting disputes arises as well. Special education disputes are a common yet emotional process for all parties involved. Such disputes can result in a split between the family and the school district- a split that can potentially leave negative consequences on the student. In 1975, Congress, realizing the personal nature and prevalence of special education issues, passed what would become the Individuals with Disabilities Education Act (IDEA). The IDEA offers states federal funds to assist in educating children with disabilities. This Act also authorizes the …
Resolving Conflict On Campus: A Case Study On Free Speech And Controversial Speakers, Benson Clayton T., J. Huff
Resolving Conflict On Campus: A Case Study On Free Speech And Controversial Speakers, Benson Clayton T., J. Huff
Journal of Dispute Resolution
By their very charge, institutions of higher education are intended to serve as venues for exploring personal ideologies, promoting intellectual curiosity, and en-couraging vigorous debate about contested issues. However, when an institution and its core values come into direct conflict with viewpoints that are fundamentally inconsistent with those values, the dissonance created by the clash of perspectives can be profound. Fundamental differences in perspective on highly charged issues and topics have become recurring themes for universities in the United States. From campus speakers, to speaker protests, to demonstrations in support of free speech and a range of other inclusion and …
Generating A Dissolution Process At The University Of Missouri: A Student Perspective, Evonnia S. Woods
Generating A Dissolution Process At The University Of Missouri: A Student Perspective, Evonnia S. Woods
Journal of Dispute Resolution
Although student protests and campus politics during the Fall of 2015 on the University of Missouri’s flagship campus were far more complex than depicted in the media, the point remains that student protests revealed many shortcomings of the University. One of these shortcomings was the lack of a policy-driven dissolution process which, amongst other things, resulted in national critique of how student protests and student demands were handled.
Beyond The Narratives: How Free Speech In Higher Education Is Truly Restricted, Azhar Majeed
Beyond The Narratives: How Free Speech In Higher Education Is Truly Restricted, Azhar Majeed
Journal of Dispute Resolution
Over the past year, much of the national conversation surrounding freedom of speech on college campuses has focused on controversial speakers, including those invited by students or student groups as well as those appearing on campus without an invitation. The debate continues to rage on as to whether university communities should allow allegedly offensive speakers to come to campus and spew their hateful views; whether universities have an obligation to foot the bill for the security they deem necessary to host such an event; and whether disruptions of speaker events are indicative of decreased tolerance on the part of today’s …
Four Questions About Free Speech And Campus Conflict, Jennifer Gerarda Brown
Four Questions About Free Speech And Campus Conflict, Jennifer Gerarda Brown
Journal of Dispute Resolution
Rather than presenting theories or truths about free speech and campus conflict, this Essay instead offers four questions—derived from lessons I have learned as a teacher, scholar, and practitioner of dispute resolution—that might shed some light on best practices in campus free speech disputes. These are considerations one might want to take into account before deciding who may speak, what they may say, and how those questions ought to be answered in any given situation. The four questions are these: What is the context for this dispute? Do the parties have an ongoing relationship? Is it fair to ask for …
The Modern Arbitration Frankenstein: The Rise And Fall Of The Consumer Financial Protection Bureau’S Arbitration Rule, Nick Leyh
Journal of Dispute Resolution
This Comment will analyze the CFPB’s proposed rule prohibiting companies from including a ban on class actions within their arbitration provisions. The CFPB’s proposed rule5 has created a political firestorm, resulting in strong opposition to the ban on class action waivers amongst both House and Senate legislators. Further, the current proposed rule has already been rejected by the House, utilizing the Congressional Review Act, an act passed in 1996 that allows the legislature to “fast-track” votes on legislation with only a simple majority from both houses of Congress, to enable a vote. The debate that surrounded the rule reflects the …
Anti-Suit Injunctions In Judicial And Arbitral Procedures In The United States, S. I. Strong
Anti-Suit Injunctions In Judicial And Arbitral Procedures In The United States, S. I. Strong
Faculty Publications
One of the prevailing myths of transnational litigation is that U.S. courts are not only ready but extremely willing to use antisuit injunctions to preclude parties from filing or pursuing proceedings elsewhere in the world. In fact, anti-suit injunctions (sometimes referred to as "stays" of litigation) are considered an extraordinary remedy in the United States, and the general rule is that "parallel proceedings on the same in personam claim should ordinarily be allowed to proceed simultaneously, at least until judgment is reached in one which can be pled as res judicata in the other." While this approach, often referred to …
The New Handshake: Using Odr To Create Value For Consumers And Businesses, John Lande
The New Handshake: Using Odr To Create Value For Consumers And Businesses, John Lande
Faculty Blogs
This post discusses issues related to the ABA book, The New Handshake: Online Dispute Resolution and the Future of Consumer Protection, by Amy Schmitz and Colin Rule. The book is designed to help build consumer protection that will benefit both consumers and merchants. It explains problems with the status quo, suggesting how ODR can improve handling of consumer problems and identifying challenges in implementing ODR systems.
The First Amendment, The University And Conflict: An Introduction To The Symposium, Christina E. Wells
The First Amendment, The University And Conflict: An Introduction To The Symposium, Christina E. Wells
Faculty Publications
Universities across the country have experienced a dramatic increase in free speech conflicts - i.e., an experience of discord between individuals or groups of speakers. These conflicts occur in various forms. For example, members of university communities (e.g., students, staff, or faculty) have protested controversial speakers. Some have called for universities to disinvite controversial speakers. Others have heckled or shouted down speakers. Finally, some members of university communities - usually students - have protested university officials' or other students' expression by occupying buildings, camping or interrupting meetings in order to disseminate their message. It is common to view resolution of …
Confusing Dispute Resolution Jargon, John M. Lande
Confusing Dispute Resolution Jargon, John M. Lande
Faculty Blogs
Decision trees enable people to assign probabilities to various contingencies and produce expected values for uncertain events.
Overcoming Roadblocks To Reaching Settlement In Family Law Cases, John M. Lande
Overcoming Roadblocks To Reaching Settlement In Family Law Cases, John M. Lande
Faculty Publications
In “litigation as usual,” settlement often comes only after adversarial posturing, the original conflict escalates, the relationships deteriorate, the process takes too long and costs too much, and nobody is really happy with the resolution. This article describes roadblocks to negotiation and ways to overcome them to reach good settlements in family law cases.
There's An "App" For That: Developing Online Dispute Resolution To Empower Economic Development, Amy J. Schmitz
There's An "App" For That: Developing Online Dispute Resolution To Empower Economic Development, Amy J. Schmitz
Faculty Publications
Traditionally, litigation has been the norm for resolving disputes. It takes place in a public forum and face-to-face. In a global economy, however, such public and face-to-face dispute resolution is not feasible. This is especially true with cross-border purchases through e-commerce. E-commerce requires more efficient and less litigious remedy systems that allow consumers to obtain remedies on their purchases without the cost and travel associated with traditional face-to-face procedures. This has led to development of online dispute resolution (“ODR”) processes, especially with respect to business-to-consumer contracts. Accordingly, scholarship and policy papers have advanced ODR for the benefit of consumers. What …
Truth In A Post-Truth Society: How Sticky Defaults, Status Quo Bias, And The Sovereign Prerogative Influence The Perceived Legitimacy Of International Arbitration, S. I. Strong
Faculty Publications
Through empirical and theoretical studies conducted by political scientists, philosophers, psychologists, and economists, this Article demonstrates how three phenomena - sticky defaults, status quo bias, and the sovereign prerogative-work in parallel to create enduring, but demonstrably incorrect, perceptions about the legitimacy of international arbitration. Interdisciplinary research also provides a potential solution in the form of a heuristic known as the Reversal Test, which acts as an objective diagnostic tool to identify the influence of unconscious cognitive distortions such as the status quo bias. Through this analysis, this Article not only addresses one of the core paradoxes in international dispute resolution, …
Introduction To “Dispute Resolution And Political Polarization", Rafael Gely
Introduction To “Dispute Resolution And Political Polarization", Rafael Gely
Journal of Dispute Resolution
Dispute resolution practitioners and scholars know conflict. In fact, some would say that we love conflict. And yet, despite our affinity with conflict, the polarization that is evident in today’s public space has been disconcerting. While we generally operate in a space where we are constantly exploring options, seeking compromise, helping participants explore their interests and finding ways to move towards agreement, what seems like an inability to even engage in any kind of dialogue is troubling. These and other related concerns led the editors of the Journal of Dispute Resolution to solicit contributions from seven well-known conflict resolution scholars …