Law Commons^™

Alternative Dispute Resolution In Agency Administrative Programs, Kristen Blankley, Kathleen Claussen, Judith Starr

Journal of Dispute Resolution

This Article studies how federal agencies use and might better use different types of alternative dispute resolution (ADR)—including mediation, conciliation, facilitation, factfinding, minitrials, arbitration, and the use of ombuds—in the programs Congress has entrusted them to administer. The use of ADR by the executive branch of the federal government to resolve disputes with or among private actors has deep historical roots. ADR related to managerial agency matters such as employment or procurement is well-established across the government and performed under a uniform set of laws. Much less has been known, however, about the scope and reach of ADR in the …

We’Re Getting Sued??? *Emotional* *With Proof*: Using Alternative Dispute Resolution In Child Influencer Disputes, Werthen Gass

Journal of Dispute Resolution

Thanks to a new Illinois law, alternative dispute resolution could play an important role in fighting mommy-vlogger clickbait in the coming years. It could allow us all to escape outrageous videos of exploitative parents crying on kitchen floors with titles such as “We’re getting SUED by our OWN CHILD?? *emotional* *with proof*”. On August 11, 2023, the governor of Illinois signed Illinois Public Act 103-0556 (“the Act”) into law, amending the current child labor laws in Illinois and adding a provision specifically pertaining to payment of child influencers. Essentially, the new law, which will go into effect on July 1, …

Faculty List

Journal of Dispute Resolution

No abstract provided.

Description

Journal of Dispute Resolution

No abstract provided.

Masthead

Journal of Dispute Resolution

No abstract provided.

Table Of Contents

Journal of Dispute Resolution

No abstract provided.

Arbitration And The Mandatory Law Problem: A Mixed Mode Adr Approach, Hossein Fazilatfar

Journal of Dispute Resolution

Rigorous scholarly debate has shaped the discussion on the application of mandatory laws and public policy in arbitration, which has led to an array of legal solutions to the mandatory law problem. The determination of the applicable law in arbitration is a dilemma due to arbitrators’ contractual source of authority and commitments to the parties, their mandate to issue an enforceable award, and the imperative nature of mandatory laws at stake. Proposed solutions thus far have primarily been suggestions that are based on either contractual concerns of the parties, jurisdictional (mandatory law) concerns of states involved, or a mix of …

How Can Courts–Practically For Free–Help Parties Prepare For Mediation Sessions?, John Lande

Journal of Dispute Resolution

Consider two hypothetical scenarios of mediations of a personal injury lawsuit. In one scenario, Kenji, the plaintiff, arrived at the mediation session feeling anxious because his attorney hadn’t told him much about the process and he didn’t know what to expect. He didn’t understand the factual and legal issues, how the mediation would unfold, or how he might participate in the process. He felt demoralized because he didn’t know enough to feel confident and assertive about making decisions in his case. In the mediation session, he spent a lot of time alternately hearing the mediator explain why he couldn’t get …

Mandatory Mediation In England And Wales: A Paradigm Shift In Dispute Resolution, Mckayla Bogda

Journal of Dispute Resolution

In May of 2023, Tribunals in England and Wales had a backlog of nearly 144,000 cases. In a press release issued on July 25, 2023, the Ministry of Justice (MoJ) unveiled a significant policy change to combat this backlog. Under its new directive, individuals or entities wishing to pursue debt recovery claims of £10,000 or less are required to engage in mediation proceedings prior to their case’s adjudication in the small claims courts of England and Wales. This transformative shift signifies a departure from the traditional adversarial litigation model of both of these countries’ judicial systems.

Ombuds Programs: How Alternative Dispute Resolution Improves The Lives Of Native Long-Term Care Residents, Brett Newberry

Journal of Dispute Resolution

Many Americans will spend at least some time in a long-term care facility. During their stay, every resident should receive competent care and maintain the highest possible quality of life. Long-term care ombuds programs exist to help achieve these goals. Long-term care ombuds (“LTCOs”) advocate for individuals living in long-term care facilities and for improvements to the long-term care system. Tribal long-term care ombuds are a subset of LTCOs who connect with and advocate for Native residents living in long-term care facilities. LTCOs help facilitate dispute resolution between residents, facilities, and family members, and work to improve resident care. The …

Filling The Enforcement Gap: Alternative Dispute Resolution As An Approach To Solving "Copyright" Disputes For Ai-Generated Content, Aly Rezek

Journal of Dispute Resolution

On August 12, 2019, the United States Copyright Office (“the Copyright Office”) sent Stephen Thaler a rejection letter stating it would not issue him federal copyright protection for artwork generated by a computer program he owned. After countless appeals to the Copyright Office and the Federal District Court under various legal theories, one thing was made clear: The U.S. Copyright system would not protect works created by non-human authors. This principle presents a problem. Artificial intelligence (“AI”) is a rapidly developing tool in business and a rapidly developing issue in the law. Courts have routinely held that to be copyrightable, …

The Copyright Infringement Threat To X: How X (Formerly Twitter) Could Benefit From Licensing Agreements With Arbitration Clauses, Mary Claire Rose

Journal of Dispute Resolution

Copyright infringement on social media platforms is an ever increasing threat to society today. As social media platforms have grown, music publishers and movie studios have become more outspoken in criticizing the inadequacies in handing copyright infringement on these platforms. On June 14, 2023 a civil complaint was brought by Concord Music Group Inc. along with many other music publishers against X Corp. (“X”), formerly Twitter, for copyright infringement. The complaint alleges that X has infringed the copyright of more than 1,700 songs and the plaintiffs are seeking more than $250 million in damages. However, one can argue this was …

Exempting The Fmla From Forced Arbitration: The Need For Special Consideration Of Pregnant And Working Mothers To Achieve Gender Equality In The Workplace, Taylor Trefger

Journal of Dispute Resolution

Pregnant and working mothers face a multitude of challenges when making decisions that pertain to their health, children, and their livelihoods. Historically, women have encountered numerous barriers regarding their entrance and treatment in the United States labor force as a result of gender discrimination that promotes the idea that women, in their inherent ability to become mothers, renders them inadequate or inferior workers in comparison to men. Unfortunately, such archaic notions of gender roles persist still; today, the reality is that women are more likely to be employed part-time, occupy lower-paid roles, and are less likely to take on managerial …

Real Practice Systems Annotated Bibliography, John Lande

Faculty Publications

Real Practice Systems (RPS) theory holds that practitioners’ practice systems are based on their personal histories, values, goals, motivations, knowledge, and skills as well as the parties and the cases in their work. RPS analysis can be used in many dispute resolution roles such as mediator, advocate in mediation, negotiator, and litigator generally. In mediation, practitioners develop categories of cases, parties, and behavior patterns that lead them to design routine procedures and strategies for dealing with recurring challenges before, during, and after mediation sessions.

RPS theory is the culmination of much of the work in my scholarly career. The bibliography …

The Rhetoric Of Abortion In Amicus Briefs, Jamie R. Abrams, Amanda Potts

Missouri Law Review

The amicus briefs filed in landmark abortion cases before the U.S. Supreme Court serve as a barometer revealing how various constituencies talk about abortion, women, fetuses, physicians, rights, and harms over time. This article conducts an interdisciplinary legal-linguistic study of the amicus briefs that were filed in the milestone abortion cases of Roe v. Wade, Doe v. Bolton, Planned Parenthood v. Casey, and Dobbs v. Jackson Women’s Health. As the first large-scale study of all amicus briefs submitted in these key cases, this article identifies the roles of amicus briefs, analyzes their rhetorical strategies, and describes how their authors engage …

The Judge-Made Constitutional Penumbra: Why Anti-Bds Laws Unavoidably Implicate The First Amendment And How The Eighth Circuit Avoided Them, Tasneem Huq

Missouri Law Review

Freedom of speech and assembly, as protected by the First Amendment, has long been a defining character of “The Land of the Free.” Much of American history has been influenced by actions deemed protected by the First Amendment. Such protection offers American citizens power that the Constitution otherwise reserves for the three government branches: the power to change the law which all American citizens live under and by which they must abide. A commonly recognized form of expression protected by the First Amendment is participation in non-violent protests. The Palestinian advocacy movement is one such movement that utilizes this form …

"I Am Become Death, The Destroyer Of Worlds": Applying Strict Liability To Artificial Intelligence As An Abnormally Dangerous Activity, Renee Henson

Faculty Publications

Artificial intelligence (AI)-enabled tools have produced a myriad of injuries, up to and including death. This burgeoning technology has caused scholars to ask questions, such as, How do we create a legal framework for AI? Because AI creators have acknowledged that even they do not know the capacities of their technology for good or bad outcomes, this Article argues that an existing framework, strict liability, is an appropriate fit for harms arising from this new technology because a party need not prove negligence to prevail. Strict liability was uniquely developed to handle those activities that are “abnormally dangerous.” An abnormally …

State Constitutional Limitations To Cities Taxing The Digital Economy, Lauren Shores Pelikan

Faculty Publications

The digital economy’s rapid evolution, most recently with the rise of artificial intelligence, demands a reevaluation of state constitutional limitations on local taxation of digital transactions. Citizens have long feared excessive or unfair tax burdens, hence the adoption of constitutional amendments that prohibit legislators from increasing taxes or imposing new taxes without a public vote. However, these constitutional limitations are now preventing cities from taxing digital transactions that are taking over the economy. This is a serious financial problem for cities whose traditional sources of tax revenue, such as sales taxes and property taxes, are dwindling due to the digitalizing …

On The Hook: Venue, Vicinage, And Double Jeopardy’S Relationship With Modern Data Crimes, Cody Deterding

Missouri Law Review

Every fisherman has a place he holds dear. Whether it be a mountain creek small enough to hop across or a reef in the Gulf of Mexico, we all have a place where “the big one” defeated us. Conversely, we all have a spot in which we emerged victorious, spurring feelings of elation. We all have memories so compelling that we feel the need to share our stories around the dinner table and remind friends how much they missed out on that day. Ingrained in my memory is the flash of a twenty-inch brown trout sipping a fly from the …

Private Law As Morality: A Critique Of Peter M. Gerhart’S Contract Law And Social Morality, P.T. Babie, Claire Williams, Jessica Viven-Wilksch, James Gilchrist Stewart

Missouri Law Review

This review essay offers a constructive critique of Peter M. Gerhart’s Contract Law and Social Morality (‘CLSM’); it examines, in a very preliminary way, whether humans—parties to contractual negotiation—ever behave in other-regarding, or altruistic, ways. The essay does this through three explorations or investigations. The first considers other-regarding behavior, or altruism, from a scientific perspective: is it possible that humans ever act out of concern for others? Second, it considers CLSM using ideas of altruism found in an eclectically selective use of philosophy. Third, it investigates the concept of the other-regarding person in relation to contract law itself which, of …

Time For An Audible: Possible Solutions For Nil Collectives Seeking Tax-Exempt Status Following Irs Memo, Austin Siener

Missouri Law Review

The United States Supreme Court’s decision in NCAA v. Alston sent shockwaves throughout the world of college sports. The Court’s recognition of student athletes’ abilities to profit from their name, image, and likeness (“NIL”) revolutionized the landscape of collegiate athletics. Shortly thereafter, the National Collegiate Athletic Association (the “NCAA”) adopted its Interim NIL Policy, explicitly allowing opportunities for companies, entities, or individuals to pay student athletes for use of their NIL. Unsurprisingly, athletes capitalized on the opportunities immediately. For example, Hanna and Haley Cavinder, former women’s college basketball players with millions of followers on social media, completed an NIL deal …

Exploring Key Antitrust Implications Of Conference Consolidation In College Football, Kamron Cox

Missouri Law Review

This paper explores a future in which two “super conferences” dominate college football. Considering the erosion of the PAC 12 Conference and the looming threats to the Atlantic Coast Conference against the skyrocketing media rights revenues of the Big Ten Conference and the Southeastern Conference (“Power Two”), thought leaders across college athletics anticipate that future industry changes will be characterized by a continued consolidation of valuable college football brands into fewer high major conferences than we see today. At the same time, the frequency and public sentiment toward legal attacks on student-athlete compensation restrictions are now such that major college …

Liking, Linking, And Tweeting: Mental Health, Mentoring, And Professional Responsibility In The Age Of Social Media, B. Summer Chandler

Missouri Law Review

It should come as no surprise that interaction through social media and other forms of technology mediated communications (“TMC”) has grown dramatically over the last two decades. The Covid-19 pandemic exacerbated this turn to technology. Communicating through some form of technology, rather than face-to-face, necessarily changes the methods we use to communicate (a smile emoji in a text replaces a smile you might give in a face-to-face discussion, for example). Studies support, however, that, in addition to changing the means by which we communicate, our increased reliance on TMC may also be changing us. Among other things, some studies show …

“Uphill . . . Both Ways!” The Issues With Missouri’S Compulsory Attendance Legislation, Amaris Garber

Missouri Law Review

“When I was a kid, I walked to school uphill . . . both ways!” Hidden in this adage is a kernel of truth regarding America’s relationship with education: for many Americans, school attendance is often difficult for more reasons than just the early morning struggle of getting out of bed. Prior to 2020, 15% of students missed at least 10% of the school year. In the wake of the COVID-19 pandemic, absenteeism increased at worrisome rates; in the 2021-2022 school year, more than 25% of students missed at least 10% of the school year. In Missouri specifically, chronic absenteeism …

Rigor Or Reach? Strictness Or Scope?: The Continuing Battle Over The Parameters Of The Supreme Court’S Daubert/Kumho Reliability/Validation Test For The Admissibility Of Expert Testimony, Edward J. Imwinkelried

Missouri Law Review

Expert testimony is offered at the overwhelming majority of trials conducted in the United States. In many of these cases, it is absolutely essential for the plaintiff or prosecutor to introduce such testimony. The plaintiff may need expert testimony to prove general causation in a toxic Tort case, and similarly the prosecutor may need to resort to expert testimony to establish the accused’s identity as the perpetrator of the charged crime. For decades, the proponents of expert testimony have mounted campaigns to lower the evidentiary barriers to expert testimony. For most of the 20th century, the governing American test for …

The Back-And-Forth Battle Of Defining Independent Contractors, Jessie O'Brien

Missouri Law Review

Gone are the times where employers automatically chain workers to cubicles and bind them to regimented schedules motivated by corporate America. Modern jobs come with new and liberating choices—choices to be your own boss, create your own schedule, and control your own time. Virtually all industries reflect these choices through specialized positions, such as freelancing, consulting, and “gig work.” These work arrangements are broadly referred to as independent contracting. Contracting arrangements offer greater flexibility and independence to workers than traditional employer-employee arrangements. To no surprise, these attractive features of independent contracting have led to a significant rise of independent contractors …

Turning From A Hire Power: Employment Discrimination And Faulty Ninth Circuit Procedure, Matthew Swords

Missouri Law Review

You just applied for your dream job. As anticipation for a response amounts, you become overwhelmed with a sense of optimism. You know you are overqualified, yet a few days later, you receive notification that the employer is no longer considering you for the position. Despite meeting all requisite qualifications, you feel slighted. You wonder if another factor is at play. Conversely, imagine you actually get the job. You accept, and you work at the company for a few years only to one day have your boss inform you that your employer is terminating your employment. Again, you feel slighted. …

Masthead

The Business, Entrepreneurship & Tax Law Review

No abstract provided.

Symposium Special Note From The Editor, Jordan Duenckel

The Business, Entrepreneurship & Tax Law Review

No abstract provided.

Guns, Vices And Freedom, Oh My: A Preliminary Empirical Investigation, Royce De R. Barondes

The Business, Entrepreneurship & Tax Law Review

This Essay estimates factors within States that are associated with per capita firearms ownership and the extent of legal restrictions concerning firearms. The metrics are: for the former, a proxy consisting of the fraction of suicides with a firearm; for the latter, Giffords Law Center’s ratings of the restrictiveness of a State’s regulation of firearms. For each, the Essay estimates the relationship between it and each of the levels of vices and freedom.