Law Commons^™

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 …

Faculty List

Journal of Dispute Resolution

No abstract provided.

Description

Journal of Dispute Resolution

No abstract provided.

Zf Automotive V. Luxshare: The Supreme Court’S New Gloss On 28 U.S. Code § 1782 And What It Means For International Commercial Arbitration, Madina Lokova

Journal of Dispute Resolution

The federal statute 28 U.S.C. § 1782 (“Section 1782”) allows litigants in foreign proceedings to obtain discovery in the United States, under the broad US discovery rules, for use in such proceedings. Although Section 1782’s use by parties to foreign proceedings has been expanding, there was a split in authority regarding whether the statute was broad enough to permit United States’ courts to authorize discovery for use in private arbitration proceedings overseas.

Masthead

Journal of Dispute Resolution

No abstract provided.

Strategies For Successful Negotiation Of International Disputes: Positional Bargaining Vs. Principled Negotiation In The Indus Water Treaty Negotiations, Sushant Mahajan

Journal of Dispute Resolution

Water is the root of all civilization. Great empires of the past arose around lakes and river systems, from the Yangtze to the Nile to the Tiber. While water resources bolstered the power of world leaders, water mismanagement had the potential to lead to their downfall. Even in modern times, water availability is a significant constraint on development – the magnitude of this constraint is particularly felt in arid and semi-arid regions especially as climate change takes effect. This importance has made water supply a great source of conflict. Though it has been a cause of conflict for centuries, transboundary …

Sunny Days Ahead: Using Adr To Fuel The Future Of Green Energy, Matthew Graham

Journal of Dispute Resolution

The energy landscape in the United States (“U.S.”) has undergone significant changes in the last few centuries. Energy consumption has increased dramatically as more energy sources have been developed. As one of the world’s leading energy consumers, the U.S. has a large incentive to develop energy solutions that are both sustainable, dependable, and independent of foreign powers. For these reasons, Congress has spent the last few decades passing numerous pieces of legislation encouraging investment in energy solutions that will benefit the U.S. for centuries. With the enactment of the Inflation Reduction Act (“IRA”) of 2022, the U.S. has made its …

Why Removing Institutional Discretion And Applying Restorative Justice To Mediation Could Prove Beneficial To Title Ix Dispute Resolution, Clare Hensley

Journal of Dispute Resolution

University students have often voiced concern that their institution did not do enough in addressing sexual assaults on campus. There is a perception among students and potential victims that there is a culture of ignoring and underreacting to sexual violence on campus. As many as one in five female undergraduate students experience sexual violence during college, but few feel confident enough to report it.

A “Rule Making” Class: The Federal Trade Commission’S Expansive Per Se Ban On Noncompete Clauses: Authority, Enforceability, And The Need For Congressional Action, Nolan Johnson

Journal of Dispute Resolution

A non-compete clause is “an agreement or contract not to interfere or compete with a former employer (as by working with a competitor).” The Federal Trade Commission (“FTC”) has proposed a per se ban on non-compete provisions in employment contracts. This would arguably be the FTC’s second substantive rule under the FTC Act. This substantive rule making departs from the traditional common law style rule-making process in which the courts create antitrust jurisprudence standards. In this way, the FTC has challenged the practice by exploring a new avenue of power under Section 5 of the FTC Act.

Odd One Out: Inconsistency In The Federal Arbitration Act’S Jurisdictional Language, Joshua Long

Journal of Dispute Resolution

After almost a century, the Federal Arbitration Act (FAA) continues to guide and change the arbitration landscape. While greater focus has been placed on the FAA’s substantive merits and evolution, the act’s procedural role in outlining the relationship between arbitration and the federal court system plays an equally important role in alternate dispute resolution. Notably, recent concerns regarding inconsistencies in the act’s jurisdictional language may undermine the FAA’s ability to provide a clear, efficient, and fair process for arbitration.

Mandatory Arbitration And Lgbtq+ Hostile Workplace Protections: A Review Of The Ending Forced Arbitration Act, Its Impact, And Implications, Jared E. Munster

Journal of Dispute Resolution

In 2022, the 117th Congress amended the Federal Arbitration Act (FAA) in response to widespread public pressure to change the culture of American employment. After years of pervasive sexual harassment across industries, supported by the growth of mandatory, adhesive arbitral agreements in employment contracts, Congress adopted the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“Ending Forced Arbitration Act”) which rendered unenforceable pre-dispute arbitral agreements for claims of sexual harassment or sexual assault. 1

Legislative Update, Katherine Albers, Lauren Bean, Dillon Dewey, Hannah Jackson, Victoria Mantel

Journal of Dispute Resolution

The Legislative Update is compiled and written annually by the Journal of Dispute Resolution’s Associate Members under the direction of the Associate Editor in Chief. It is designed to provide readers with a listing of pertinent legislation affecting the field of alternative dispute resolution (“ADR”) and a more detailed look at certain bills because of their importance or novelty within the field.

Ending The Epidemic Of Accidental Personality Disorder Discrimination By Well-Meaning Mediators, Dan Berstein, Hannah Diamond, Philip T. Yanos

Journal of Dispute Resolution

People who have or appear to have mental disorders encounter rampant bias and stigma, including from mediators. This article focuses on some of the most heavily stigmatized mental health problems - personality disorders - and how some mediators discriminate against parties based on their guesses and assumptions that those parties may have these conditions.

Table Of Contents

Journal of Dispute Resolution

No abstract provided.

Climate Diplomacy: Can Mediating Climate Considerations Into Peace Agreements Create A Sustainable Future?, Kayla Fowler

Journal of Dispute Resolution

The Earth’s temperature has risen on average 0.14 degrees Fahrenheit per decade since 1880—a total of 2 degrees. Since 1981, the rate of warming has been over twice as fast at 0.32 degrees Fahrenheit per decade. 2022 was the sixth-warmest year on record, and the 10 warmest years have all occurred since 2010. These long-term shifts in temperature exemplify the changes to our climate due to the increasing accumulation of gases caused by human activity on Earth, more commonly referred to as climate change. While it is abundantly clear that climate change is negatively affecting our environment, it is also …

A Final Shot At Federal Felon Dispossession: Bruen, Heller’S Haven, And Non-Violent Felons, Keaton Campbell

Missouri Law Review

Felons are not allowed to possess firearms—yet. New York State Rifle and Pistol Association v. Bruen is the Supreme Court’s most recent elaboration on the Second Amendment, and the Court enunciated a new constitutional test for firearms regulations. The Supreme Court disclaimed the means-end balancing approach developed by courts in the wake of D.C. v. Heller and replaced it with a test focusing only on the plain text of the Second Amendment and the Nation’s historical tradition of firearms regulation. 18 U.S.C. § 922(g)(1), the federal felon dispossession statute, fared well under means-end balancing in the decade after Heller. Although …

The House Of Cards Topples: Examining Appellate Jurisdiction For Transfers Of Venue In Federal Court, Mac Newton

Missouri Law Review

Many a lunch table argument has been had about a battle between unlikely foes. Who would win: a gorilla or a grizzly bear? A great white shark or a crocodile? Opponents throw their support behind one animal or another and vigorously debate the matchup—“a grizzly bear might be bigger, but a gorilla has opposable thumbs and superior intelligence!” As thrilling and engaging as these debates may be, participants recognize their theoretical nature. Part of the fun is that the question “who would win?” is often unanswerable. The hypothetical combatants simply do not encounter one another in the wild, leaving the …

Balancing Discretion And Fairness: The Potential Pitfalls Of Allowing Judges Too Much Discretion In Sentencing, Kelly A. Mclaughlin

Missouri Law Review

Nearly eighty percent of individuals in federal prison for drug offenses are Black or Latino. The War on Drugs, a global campaign started by President Nixon, had an objectively moral goal: reducing the illegal drug trade in the United States. However, in reality, the results of the campaign sparked inequalities in sentencing regimes, which has led to a disproportionate incarceration of minority groups. Most notably, there was a 100-to-1 sentencing disparity between crimes involving crack cocaine (crack) and crimes involving powder cocaine. While this distinction historically claimed to address the theory that powder cocaine has more dangerous health effects; it …

Undermining Confidence In The Judgment: The Supreme Court Of Missouri’S Flawed Application Of Missouri’S Wrongful Conviction Statute, Salvatore Paris

Missouri Law Review

In recent decades, the problem of wrongful convictions has garnered much attention from both legal scholars and the public at large. However, one element of wrongful convictions that deserves more attention is the fact that it is remarkably difficult for a wrongfully convicted person to gain his or her freedom. The appeals and post-conviction process for freeing an innocent person is a tangled web of procedural complexities and technicalities. For wrongfully convicted capital defendants, the stress of the complex process compounds the cloud of impending execution hanging over the defendant’s head.

Faculty List

Missouri Law Review

No abstract provided.

Masthead

Missouri Law Review

No abstract provided.

Copyright

Missouri Law Review

No abstract provided.

Table Of Contents

Missouri Law Review

No abstract provided.

Getting Serious About Stakeholders, William O. Fisher

Missouri Law Review

Stakeholder enthusiasm grips public companies and asset managers. Sustainability reports abound, reflecting an appetite for detailed data on company efforts to reduce carbon emissions and water usage and to protect and diversify workforces—while investors still seek returns to finance college tuition and fund retirement. But commentators and those who control public companies fail to engage on fundamental questions: Which stakeholders count? To what degree will companies sacrifice shareholder return to benefit those stakeholders? What happens when the interests of differing sets of non-shareholder stakeholders differ? Is all the commotion really necessary, given the many laws and regulations protecting such stakeholders? …

Rulemaking 3.0: Incorporating Ai And Chatgpt Into Notice And Comment Rulemaking, Stephen M. Johnson

Missouri Law Review

Artificial intelligence, including ChatGPT, is the latest tech trend to create opportunities to transform notice and comment rulemaking. If ChatGPT is only used by members of the public and organizations as a tool to draft comments, it may increase the involvement of the public in the process and assist them in drafting clear and intelligible comments. However, it is unlikely to improve the quality of public comments that they provide to agencies, because it will not help them understand the type of information that agencies are seeking in public comments. In addition, if ChatGPT is used to any significant extent …

Postconviction Remedies, Retroactivity, And Montgomery V. Louisiana’S Other New Rule, Taylor A.R. Meehan

Missouri Law Review

The U.S. Supreme Court has turned its attention back to the law of habeas corpus, with a string of new decisions that emphasize the limited scope of federal habeas relief. But focusing one’s sights on only those decisions would overlook what has transpired at the Supreme Court in recent years in state habeas cases coming directly to the Supreme Court from the state postconviction courts. Montgomery v. Louisiana, in particular, shifted the division of power between the Supreme Court and state postconviction courts for questions conventionally considered to be questions of state law. Montgomery, on the surface, is a decision …

When Push Comes To Shove: How Qualified Immunity Shuts The Door To Constitutional Claims Against Law Enforcement, Scott J. Bower

Missouri Law Review

Sometimes lawyers get pushed around—both literally and figuratively. However, it is not every day that a Netflix camera crew might capture such an altercation on camera. While filming a Netflix documentary about the experiences of undocumented persons in the United States, Andrea Martinez found herself in a precarious situation that resulted in her suing two United States Immigration and Customs Enforcement agents for allegedly violating her Fourth Amendment rights. Plaintiffs like Martinez often struggle to overcome the strenuous legal doctrine of qualified immunity when filing suit against government officials. Several circuits across the country are clarifying legal guidelines and applying …

Law Students Can Use Portfolios To Plan Their Practice Systems, John Lande

Faculty Blogs

This post describes how law schools can help students plan for successful careers by using Real Practice System self-assessments to guide them in developing individualized portfolios. Portfolios identify students’ learning objectives and experiences designed to achieve them. Portfolios may include a variety of elements such as writing samples, video recordings, grades, faculty evaluations, clinical course journals, and extracurricular experiences.

Helping Law Students Define And Pursue Success, John Lande

Faculty Blogs

This post collects prior posts about how to help law students define and pursue professional success.

Real Lawyering Practice Systems, John Lande

Faculty Blogs

Most of the pieces in the RPS Project have focused on mediation. The theory is not limited to mediation, and this post applies it to lawyering.