Law Commons^™

Keeping Arbitrations From Becoming Kangaroo Courts, Jeffrey W. Stempel

Scholarly Works

Arbitration has grown rapidly during the past 20 years. Particularly notable and problematic is the rapid onset of new or mass arbitration that has resulted from the judiciary's modern favorable attitude toward enforcement of arbitration clauses, even those imposed upon consumers, employees, small vendors, and debtors as part of a standardized contract of adhesion. In a separate article (See "Mandating Minimum Quality in Mass Arbitration," 76 U. Cin. L. Rev. (forthcoming 2007)), I present a more comprehensive list of what I regard as the necessary steps that must be taken to insure minimally acceptable quality and fairness in mass arbitration. …

Introduction To The Symposium Issue On Alternative Dispute Resolution Strategies In End-Of-Life Decisions, Carol B. Liebman

Faculty Scholarship

At about 8:30 p.m. on a spring evening approximately twenty-five years ago when I was living in Newton, Massachusetts, our telephone rang. It was the emergency judge on duty that week asking me to go to a nearby suburban hospital to represent a sixty-eight-year-old woman whom I'll call Mrs. P. She had been hospitalized for heart failure and was refusing treatment, saying that she wanted to die with dignity.

Mrs. P and her husband had traveled to Boston from her home, a small town in New York about five hours away, to meet their newest grandchild. When I arrived at …

Judicial Review Of International Commercial Arbitral Awards By National Courts In The United States And India, Aparna D. Jujjavarapu

LLM Theses and Essays

Article V of the New York convention lays down the provisions under which the recognition and enforcement of an arbitral award may be refused. The United States and India are signatories to the Convention. Section 10(a) of the Federal Arbitration Act in the United States limits the scope of judicial review of the arbitral awards to a clear list of grounds of vacatur. The national courts of the United States have recognized several non-statutory grounds of which "manifest disregard of the law" as a standard of review is the focus in this thesis. In fact, the state of Georgia has …

The Need For A Transnational Appellate Arbitral Review Body, Priya Sampath

LLM Theses and Essays

This thesis analyzes the necessity for the establishment of a transnational body of arbitral appeal. The paper also elaborates on how the establishment such a body will serve as a suitable replacement for judicial review and be an effective source of appeal in general. Also prescribed are suggestions based on which the appellate body may be conceived.

Introduction: Mandatory Rules Of Law In International Arbitration, George A. Bermann

Faculty Scholarship

The notion of mandatory rules of law has long been of interest in private international law. It is no wonder that the subject has also emerged as something of a preoccupation of those who are involved in the world of international commercial arbitration. As both legal academics and international arbitrators, the editors of this special issue of the American Review of International Arbitration took a keen interest in how mandatory rules might “fit” into the international arbitration picture.

To better understand the phenomenon of mandatory rules (and to gauge whether its importance might possibly even be exaggerated in the international …

How And Why Labor Arbitrators Decide Discipline And Discharge Cases. An Empirical Examination., Theodore J. St. Antoine

Other Publications

Often without attribution, the arbitration literature includes statements about how “most,” “many” or “some” arbitrators decide discipline and discharge cases. Elkouri & Elkouri is probably the best known source of such generalizations. Although statements like these are often consistent with conventional wisdom, empirical support is seldom provided. To illustrate, consider the first of three examples taken from the National Academy of Arbitrators’ The Common Law of the Workplace: Because industrial discipline is corrective rather than punitive, most arbitrators require use of progressive discipline, even when the collective agreement or employment contract is silent on the subject. Based on personal …

Restorative Justice: What Is It And Does It Work?, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

This article reviews the now extensive literature on the varied arenas in which restorative justice is theorized and practiced — criminal violations, community ruptures and disputes, civil wars, regime change, human rights violations, and international law. It also reviews — by examining empirical studies of the processes in different settings — how restorative justice has been criticized, what its limitations and achievements might be, and how it might be understood. I explore the foundational concepts of reintegrative shaming, acknowledgment and responsibility, restitution, truth and reconciliation, and sentencing or healing circles for their transformative and theoretical potentials and for their actual …

Conflict Resolution And Systemic Change, Howard Gadlin, Susan P. Sturm

Faculty Scholarship

Over the last fifty years, alternative dispute resolution (ADR) has become a fixture of the conflict resolution landscape. As its label suggests, ADR is generally viewed as an alternative to adjudication, developed in response to litigation's liabilities-its expense, delay, adversarialism, and limits as a tool for addressing complex problems. In contrast, ADR's value rests in its capacity to produce prompt, fair, and efficient resolutions that satisfy the disputants.

ADR proponents and critics alike presuppose that the benefits of ADR are achieved at inevitable costs. The assumption is that informal conflict resolution necessarily resolves disputes for the disputants and no one …

Blinking On The Bench: How Judges Decide Cases, Chris Guthrie, Andrew J. Wistrich

Vanderbilt Law School Faculty Publications

How do judges judge? Do they apply law to facts in a mechanical and deliberative way, as the formalists suggest they do, or do they rely on hunches and gut feelings, as the realists maintain? Debate has raged for decades, but researchers have offered little hard evidence in support of either model. Relying on empirical studies of judicial reasoning and decision making, we propose an entirely new model of judging that provides a more accurate explanation of judicial behavior. Our model accounts for the tendency of the human brain to make automatic, snap judgments, which are surprisingly accurate, but which …