Law Commons^™

An Empirical Study Of Settlement Conference Nuts And Bolts: Settlement Judges Facilitating Communication, Compromise And Fear, Peter R. Robinson

Peter R. Robinson

No abstract provided.

Live Hearings And Paper Trials, Mark Spottswood

Mark Spottswood

This article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing or trial, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared—but false—assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing live testimony than if the judges were to review …

Expanding The Nafta Chapter 19 Dispute Settlement System: A Way To Declaw Trade Remedy Laws In A Free Trade Area Of The Americas?, Stephen Powell

Stephen Joseph Powell

Chapter 19 of the NAFTA transfers judicial review of U.S., Canadian, and Mexican government investigations under the controversial anti-dumping and countervailing duty (AD/CVD) laws from national courts to binational panels of private international law experts. The system stands as a unique surrender of judicial sovereignty to an international body, a hybrid of national courts and international dispute settlement with as yet no parallel in the world of international trade or other international law regimes. Binational panel decisions have been controversial because agencies chafe at their intimate examination of agency findings and supporting evidence. Panels also are viewed as substantially more …

Bargaining Without Law, Robert J. Condlin

Robert J. Condlin

Like a professional athlete on growth hormones, legal bargaining scholarship has transformed itself over the years. Once an amateurish assortment of war stories and folk tales, now it is a hulking behemoth of social science surveys and studies. There is a lot to like in this transformation. Much of the new writing is insightful, sophisticated, and spirited, with things to tell even the most experienced bargainer. But it also is missing something important: law. Bargaining scholars now routinely write about dispute settlement as if the strength of the parties’ competing legal claims is of no consequence. Rarely do they discuss …

Are Arbitrators Above The Law? The "Manifest Disregard Of The Law" Standard, Michael Leroy

Michael H LeRoy

Arbitration is supposed to be final and binding. But federal and state laws, and judicial doctrines, allow courts to vacate arbitrator awards. This study contemplates the role of courts when they review awards that “manifestly disregard the law”— a term that means the arbitrator knew the law but chose to ignore it. Given the norm of arbitral finality, should courts vacate these rulings?

Hall Street Associates v. Mattel, Inc., 552 U.S. 576 (2008), failed to answer this question. The parties asked a court to review their award for errors of law. This standard is not in the Federal Arbitration Act …

Teaching The Ethical Values Governing Mediator Impartiality Using Short Lectures, Buzz Group Discussions, Video Clips, A Defining Features Matrix, Games, And An Exercise Based On Grievances Filed Against Florida Mediators, Paula M. Young Prof.

Paula Marie Young Prof.

It Takes Two To Tango, And To Mediate: Legal Cultural And Other Factors Influencing United States And Latin American Lawyers' Resistance To Mediating Commercial Disputes, Don Peters

Don Peters

This article examines legal cultural and other factors influencing the resistance displayed by United States and Latin American lawyers to mediating commercial disputes. After surveying current contexts in which commercial mediation occurs in the United States and Latin American countries and summarizing data regarding commercial actors’ knowledge concerning the benefits of mediating, it analyzes the relatively infrequent use of mediation despite knowledge of its potential advantages over adjudicating. Focusing on lawyers, the article next explores factors that influence U.S. and Latin American lawyers when they converse with commercial clients about selecting dispute resolution methods. Analyzing similarities arising from universal decision-making …

Teaching Professional Ethics To Lawyers And Mediators Using Active Learning Techniques, Paula M. Young

Paula Marie Young Prof.

Hearings, Mark Spottswood

Mark Spottswood

This article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared—but false—assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing their testimony in person than if the judges were to review …

Victims, Lawyers, And Money: Legal Representation In The September 11th Victim Compensation Fund, Brian Bornstein

Brian H Bornstein

We surveyed claimants to the September 11th Victim Compensation Fund about their experiences with legal representation in filing a claim. Most claimants used a lawyer and believed that they received more compensation than they would have without a lawyer. Nearly two-thirds did not pay their attorney, and claimants who paid their lawyer were less satisfied with their outcome. Nearly half of claimants felt pressured to file a claim with the Fund, and they were split on the likely outcome if they had filed a lawsuit instead of going through the Fund. These findings have important implications for public policy and …

Indianizing Hollywood: The Debate Over Bollywood's Copyright Infringement, Hariqbal Basi

Hariqbal Basi

For decades, the mainstream Indian film industry, known as Bollywood, has remade copyrighted Hollywood films for the Indian audience without legal repercussions. This practice has gone unnoticed by Hollywood until recently, and accusations have since been brought against Indian filmmakers for copyright infringement. This note provides an in depth analysis of why these potentially infringing films have only become the subject of litigation over the last two years, cultural arguments advanced by Indian filmmakers for why their remakes should constitute original, and not infringing, works, and what the effects of litigation have been. As the two industries become increasingly intertwined, …

Lessons From The Field: First Impressions From Second Generation Negotiation Teaching, Kenneth Fox, Manon Schonewille, Esra Çuhadar-Gürkaynak

Kenneth H Fox

In May, 2008, an international group of 50 negotiation scholars and teachers met in Rome, Italy, to launch a four year project to rethink negotiation theory and pedagogy. From its inception, the Rethinking Negotiation Teaching project (NT 2.0 project) has had two primary goals: to significantly advance our understanding of the negotiation process in all its complexity; and to improve how we teach others about negotiation. The first year of this four-year project focused on generating new ideas and approaches to negotiation scholarship and teaching. Some of this scholarship was published in the book Rethinking Negotiation Teaching and some in …

Reweaving The Fabric Of Society: Restorative Justice In The United States, Kenneth Fox

Kenneth H Fox

This article provides an overview of restorative justice practices in the United States. It offers a brief history of the field, articulates its underlying values, and describes its primary forms of practice. The purpose of this article is to introduce readers to an emerging and important way to re-think how citizens relate to one another and to the “state” when crime occurs.

Protocols For Expeditious, Cost‐Effective Commercial Arbitration: Key Action Steps For Business Users, Counsel, Arbitrators & Arbitration Provider Institutions, Thomas J. Stipanowich

Thomas J. Stipanowich

Despite meaningful efforts to promote better practices and ensure quality among arbitrators and advocates, criticism of American commercial arbitration is at a crescendo. Much of this criticism stems from the fact that business‐to‐business arbitration has taken on the trappings of litigation—extensive discovery and motion practice, highly contentious advocacy, long cycle time and high cost. While many business users still prefer arbitration to court trial because of other procedural advantages, the great majority of complaints being voiced by arbitration users are the same: commercial arbitration now costs just as much, and takes just as long, as litigation. Clients and counsel often …

Behind The Neutral: The Critical Role Of Provider Institutions, Thomas J. Stipanowich

Thomas J. Stipanowich

In the last generation the “quiet revolution” in conflict resolution has spawned a vast array of organizations sponsoring or promoting the services of arbitrators and mediators. These “provider institutions” are often in a position, directly or indirectly, to exert significant influence on the lives and fortunes of individuals in all sectors of society. For this reason they have become increasingly visible, the focus of growing scrutiny and, in some cases, regulation. This article explores the roles of providers and the need for greater awareness of their impact.

Anatomy Of The First Public International Sports Arbitration And The Future Of Public Arbitration After Usada V. Floyd Landis, Maureen A. Weston Prof.

Maureen A Weston

Mere weeks after American professional cyclist Floyd Landis seemingly won the 2006 Tour de France, the United States Anti-Doping Association (USADA), under the authority granted to it by the U.S. Congress, and through its enforcement of the World Anti-Doping Code (WADC), accused him of having committed doping violations during the race. Landis vehemently denied these allegations, and accused the French laboratory that had performed the testing of his post-race samples, the Laboratoire National du Depistage du Dopage (LNDD), of bias and misconduct in his case.

Under USADA rules, an American athlete accused of doping may request an arbitration hearing before …

The Other Avenues Of Hall Street And Prospects For Judicial Review Of Arbitral Awards, Maureen A. Weston Prof.

Maureen A Weston

In Hall Street Associates, L.L.C. v. Mattel, Inc., the U.S. Supreme Court held that the Federal Arbitration Act (FAA) provided the exclusive grounds for judicial vacatur and modification of arbitral awards covered under the Act. In so ruling, the Court rejected the contention that the FAA’s requirement to enforce arbitration contracts as written includes private contracts that seek to expand the scope of judicial review beyond the grounds enumerated in the FAA. Despite holding that parties cannot expand a court’s power to review an arbitration award under the FAA, the Court alluded to the possibility of “other possible avenues” for …

Why Do Businesses Use (Or Not Use) Arbitration Clauses?, Christopher R. Drahozal, Stephen J. Ware

Stephen Ware