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2007

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Full-Text Articles in Law

Restating Restitution: A Study In Contemporary Common Law Conceptualism, Chaim Saiman Sep 2007

Restating Restitution: A Study In Contemporary Common Law Conceptualism, Chaim Saiman

Chaim Saiman

The ALI’s Restatement (Third) of Restitution provides one of the most interesting expressions of contemporary legal conceptualism. This paper explores the theory and practice of post-realist conceptualism through a review and critique of the Restatement. At the theoretical level, the paper develops a typology of different forms of conceptualism, and shows that the Restatement has more in common with the high formalism of the nineteenth century than with contemporary modes of private law discourse. At the level of substantive doctrine, the paper explains why labels in fact make a difference, and assesses which recoveries are more (and less) likely under …


The Arbitration Penumbra: Arbitration Law And The Rapidly Changing Landscape Of Dispute Resolution, Thomas J. Stipanowich Dec 2006

The Arbitration Penumbra: Arbitration Law And The Rapidly Changing Landscape Of Dispute Resolution, Thomas J. Stipanowich

Thomas J. Stipanowich

After a generation of growing emphasis on informal methods of conflict resolution, the surrounding legal landscape remains "aimless, meandering, and . . . confusing." The "penumbra" of arbitration law - a body of judicial decisions involving application of federal or state arbitration statutes to processes that are to one degree or another different from "classic" arbitration, or to the interface between arbitration and earlier stages in multi-step dispute resolution processes - reflects the failure of courts to articulate clear and well-reasoned approaches to the new generation of dispute resolution tools. The application of arbitration law entails a variety of specific …