Open Access. Powered by Scholars. Published by Universities.®
- Institution
- Publication
- File Type
Articles 1 - 17 of 17
Full-Text Articles in Law
Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel
Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel
Nehal A. Patel
AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …
Crowdsourcing (Bankruptcy) Fee Control, Matthew Bruckner
Crowdsourcing (Bankruptcy) Fee Control, Matthew Bruckner
Matthew Adam Bruckner
In this article, I explore how crowdsourcing can help reduce the cost of professional representation in corporate bankruptcy cases. The cost of professional representation in bankruptcy cases is currently a hot topic, with oral argument haven taken place before the U.S. Supreme Court in Baker Botts L.L.P. v. Asarco, L.L.C. in February 2015, which case addressed various issues raised in my article. In brief, the fees of lawyers, investment bankers, and other bankruptcy professionals has been spiraling out of control because chapter 11’s existing fee control system is broken. That system can neither identify nor control professional overcharging, which empirical …
When Peace Is Not The Goal Of A Class Action Settlement, D. Theodore Rave
When Peace Is Not The Goal Of A Class Action Settlement, D. Theodore Rave
D. Theodore Rave
On the conventional account, a class action settlement is a vehicle through which the defendant buys peace from the class action lawyer. That single transaction will preclude future litigation by all class members. But peace, at least through preclusion, may not always be the goal. In a recent Fair Credit Reporting Action (FCRA) case, In re Trans Union Privacy Litigation, the parties agreed to a class action settlement that did not preclude individual claims. The 190 million class members surrendered only their rights to participate in a future class or aggregate action; they remained free to march right back into …
Lawyer, Form Thyself: Professional Identity Formation Strategies In Legal Education, Professional Responsibility, And Experiential Courses, Susan S. Daicoff
Lawyer, Form Thyself: Professional Identity Formation Strategies In Legal Education, Professional Responsibility, And Experiential Courses, Susan S. Daicoff
Susan Daicoff
Professional identity formation as a learning objective in law school may appear to be nontraditional and perhaps even innovative. While perhaps not a new concept, it is not typically an explicit goal of legal education. Empirical data finds that law school has demonstrable effects upon law students’ professional development; it also finds that certain nontraditional skills and competencies (or “soft skills”) make lawyers most effective. This article argues for explicit planning for and inclusion of professional identity development, including training in these nontraditional skills, in legal education. Professional identity encompasses one’s values, preferences, passions, intrinsic satisfactions, emotional intelligence, as well …
The Contemplative Lawyer: On The Potential Contributions Of Mindfulness Meditation To Law Students, Lawyers, And Their Clients, Leonard L. Riskin
The Contemplative Lawyer: On The Potential Contributions Of Mindfulness Meditation To Law Students, Lawyers, And Their Clients, Leonard L. Riskin
Leonard L Riskin
This Article proposes that introducing mindfulness meditation into the legal profession may improve practitioners' well-being and performance and weaken the dominance of adversarial mind-sets. By enabling some lawyers to make more room for - and act from - broader and deeper perspectives, mindfulness can help lawyers provide more appropriate service (especially through better listening and negotiation) and gain more personal satisfaction from their work. Part I of this article describes a number of problems associated with law school and law practice. Part II sets forth a variety of ways in which lawyers, law schools, and professional organizations have tried to …
Open-Minded Listening, Jonathan R. Cohen
Open-Minded Listening, Jonathan R. Cohen
Jonathan R. Cohen
Parties in conflict do not typically listen to one another well. On a physical level they hear what their counterparts say, but on a deeper level they do not truly absorb or think seriously about their counterparts’ words. If they listen at all, they listen with an ear toward how they can refute rather than toward what they may learn. This article explores how we might change this. In contrast to prior research examining external aspects of listening (e.g., how being listened to influences the speaker), this article probes the internal side of listening, specifically, whether the listener will allow …
"What Did You Say?": Semantic Polysemy In California Juvenile Dependency Dispute Resolution, Kelly X. Ranasinghe
"What Did You Say?": Semantic Polysemy In California Juvenile Dependency Dispute Resolution, Kelly X. Ranasinghe
Kelly X Ranasinghe
Non-adversarial resolution of dependency cases is a statutorily mandated practice in California. Practitioners in California Juvenile Dependency courts attempt to settle cases without litigation, relying instead on negotiation between the various parties using informal discourse. This discourse utilizes polysemous dependency terms affecting the contextual understanding of statements by creating underlying ambiguity. The ambiguity of these terms creates communicative interference by engendering misunderstanding, lack of specificity and other communication problems. By recognizing polysemous qualities of core terms used in dependency discourse, practitioners can communicate more effectively and efficiently when resolving cases.
The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson
The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson
Hillary A Henderson
Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …
Commercial Arbitration And Settlement: Empirical Insights Into The Roles Arbitrators Play, Thomas Stipanowich, Zachary Ulrich
Commercial Arbitration And Settlement: Empirical Insights Into The Roles Arbitrators Play, Thomas Stipanowich, Zachary Ulrich
Thomas J. Stipanowich
A wide-ranging new Straus Institute for Dispute Resolution Survey of experienced arbitrators, conducted with the cooperation of the College of Commercial Arbitrators, reflects the growing professionalization of commercial arbitration, increasing competition for cases, and many other trends in arbitration practice. It also shows that a grower percentage of arbitrated cases are being settled prior to award or to the start of hearings, and offers a strong rationale for greater emphasis on the role of arbitrators in setting the stage for or facilitating settlement. Early settlement of a dispute can be a uniquely effective way of minimizing cost and cycle time …
Lessons From Teaching Students To Negotiate Like A Lawyer, John Lande
Lessons From Teaching Students To Negotiate Like A Lawyer, John Lande
John Lande
The legal education system is in a major crisis now, in part because law schools do not prepare students adequately to practice law. Law schools should do a better job of teaching negotiation, in particular, because it is a significant part of the work of virtually every practicing lawyer. This includes lawyers who handle civil and criminal matters and lawyers who do litigation as well as those who do transactional work. Negotiation is especially important because most litigated cases are settled and virtually all unstandardized transactions are negotiated. Most law school negotiation courses rely primarily or exclusively on simulations in …
Law And Negotiation: Necessary Partners Or Strange Bedfellows?, Nancy Schultz
Law And Negotiation: Necessary Partners Or Strange Bedfellows?, Nancy Schultz
Nancy Schultz
To what degree does legal authority dictate the outcomes of negotiations? Scholars have discussed the issue, and law students argue about it in their negotiation classes. A survey of practicing lawyers reveals that knowing the law is an important part of the preparation for negotiation, but that legal authority is not the primary determinant of negotiated outcomes in practice. Financial constraints, bargaining power, and negotiating skill are all reported as having a greater effect on negotiated outcomes than the law.
In Quest Of The Arbitration Trifecta, Or Closed Door Litigation?: The Delaware Arbitration Program, Thomas Stipanowich
In Quest Of The Arbitration Trifecta, Or Closed Door Litigation?: The Delaware Arbitration Program, Thomas Stipanowich
Thomas J. Stipanowich
The Delaware Arbitration Program established a procedure by which businesses can agree to have their disputes heard in an arbitration proceeding before a sitting judge of the state’s highly regarded Chancery Court. The Program arguably offers a veritable trifecta of procedural advantages for commercial parties, including expert adjudication, efficient case management and short cycle time and, above all, a proceeding cloaked in secrecy. It also may enhance the reputation of Delaware as the forum of choice for businesses. But the Program’s ambitious intermingling of public and private forums brings into play the longstanding tug-of-war between the traditional view of court …
Teaching Students To Negotiate Like A Lawyer, John Lande
Teaching Students To Negotiate Like A Lawyer, John Lande
John Lande
Teaching students to negotiate effectively is central to their thinking, acting, and being like good lawyers. Virtually all lawyers spend much of their time negotiating, whether they deal with disputes or transactions. So law school negotiation courses should provide the most realistic possible portrayal of legal negotiation. This essay is intended to help instructors plan and teach negotiation courses, recognizing that every course should be tailored to fit the interests, capabilities, resources, and constraints of the instructors and students. This essay argues that many lawyers engage in “ordinary legal negotiation” (OLN), which is distinct from “romantic” theories of positional and …
Getting Good Results For Clients By Building Good Working Relationships With "Opposing Counsel", John Lande
Getting Good Results For Clients By Building Good Working Relationships With "Opposing Counsel", John Lande
John Lande
Lawyers’ relationships with their “opposing counsel” make a big difference in how well they handle their cases. “Opposing counsel” often do oppose each other, sometimes quite vigorously, though they also regularly cooperate with each other. In the normal course of litigation, lawyers need to cooperate on many procedural matters. In some cases, they also cooperate to achieve their respective clients’ substantive interests. If the lawyers have a bad relationship, the case is likely to be miserable for everyone involved. If they have a good relationship, they are more likely to agree on procedural matters, exchange information informally, take reasonable negotiation …
The Movement Toward Early Case Handling In Courts And Private Dispute Resolution, John Lande
The Movement Toward Early Case Handling In Courts And Private Dispute Resolution, John Lande
John Lande
This article identifies early case handling (ECH) as an important general phenomenon in dispute system design theory and practice, catalogs the major ECH processes, and urges practitioners and policymakers to encourage use of and experimentation with ECH processes when appropriate. The key element of ECH is that people intentionally exercise responsibility for handling the case from the outset. ECH processes in courts include early case management procedures, differentiated case management systems, early neutral evaluation, and other early alternative dispute resolution (ADR) processes. ECH in the private sector includes ADR pledges and contract clauses, early case assessment and ADR screening protocols, …
Principles For Policymaking About Collaborative Law And Other Adr Processes, John Lande
Principles For Policymaking About Collaborative Law And Other Adr Processes, John Lande
John Lande
This Article articulates a set of principles for policymaking about “alternative dispute resolution” (ADR) to promote values of process pluralism, choice in dispute resolution processes, and sound decisionmaking. It argues that policymakers should use a dispute system design (DSD) framework in analyzing policy options. DSD involves systematically managing a series of disputes rather than handling individual disputes on an ad hoc basis. It generally includes assessing the needs of disputants and other stakeholders, planning to address those needs, providing necessary training and education for disputants and dispute resolution professionals, implementing the system, evaluating it, and making periodic modifications as needed. …
Using Dispute System Design Methods To Promote Good-Faith Participation In Court-Connected Mediation Programs, John Lande
John Lande
This Article discusses what can be done to promote productive behavior in mediation and reduce bad conduct. Although most participants do not abuse the mediation process, some people use mediation to drag out litigation, gain leverage for later negotiations, and generally wear down the opposition. Rules requiring good-faith participation are likely to be ineffective and possibly counterproductive. This Article proposes using dispute system design principles to develop policies satisfying the interests of stakeholders in court-connected mediation programs. After outlining interests of key stakeholder groups including litigants, attorneys, courts, and mediators, the Article describes specific policies that could satisfy their interests. …