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Full-Text Articles in Law
How Can Practitioners Help Clients Assess Their Interests And Risks In Litigation?, John Lande
How Can Practitioners Help Clients Assess Their Interests And Risks In Litigation?, John Lande
Faculty Blogs
This post summarizes the discussion at a Quinnipiac-Yale Dispute Resolution Workshop. It highlights some practical ideas that the audience suggested about clients’ interests, timing of discovery and mediation, possible trial outcomes, legal fees, consequences of litigation, and decision fatigue in “marathon mediations.”
Reality-Testing Questions For Real Life And Simulations – And Ideas For Stone Soup Assignments, John Lande
Reality-Testing Questions For Real Life And Simulations – And Ideas For Stone Soup Assignments, John Lande
Faculty Blogs
Although litigants and their lawyers may generally recognize that litigants will incur some intangible costs, they often do not consider the numerous intangible ways that litigants can be harmed and do not carefully assess these costs when making litigation decisions. Sometimes litigants’ intangible costs are much more important to them than the tangible costs. This post provides detailed descriptions of some of these costs, and includes questions that lawyers and mediators should ask clients to identify and value intangible costs.
What Do Litigants Really Want?, John M. Lande
What Do Litigants Really Want?, John M. Lande
Faculty Blogs
This post discusses Donna Shestowsky’s article, Inside the Mind of the Client: An Analysis of Litigants’ Decision Criteria for Choosing Procedures. Her study found that the decision-making factor that subjects most often cited was their lawyers’ advice. Donna argues, “Given the extent to which litigants are predisposed to following their lawyers’ advice about which procedures to use, lawyers should attempt to understand their clients’ interests, values, and objectives before sharing their personal evaluations of procedures to avoid imposing their own views.”
Keet And Heavin On Why Litigation Interest And Risk Assessment Is So Darn Important For Lawyers And Mediators – And How You Can Make Stone Soup With It, John Lande
Faculty Blogs
This post provides links to law review articles by Michaela Keet and Heather Heavin that provide the foundation for the LIRA book.
The European Succession Regulation And The Arbitration Of Trust Disputes, S. I. Strong
The European Succession Regulation And The Arbitration Of Trust Disputes, S. I. Strong
Faculty Publications
Over the last few decades, U.S. citizens have become increasingly mobile, with significant numbers of individuals living, working, and investing abroad. Estate planning has become equally international, generating ever-larger numbers of cross-border succession cases. While these sorts of developments are welcome, they require lawyers to appreciate and anticipate the various ways that the laws of different jurisdictions can interact. One of the most important recent developments in international succession law comes out of the European Union. While the European Succession Regulation may initially appear applicable only to nationals of E. U. Member States, U.S. citizens can also be affected by …
Anti-Suit Injunctions In Judicial And Arbitral Procedures In The United States, S. I. Strong
Anti-Suit Injunctions In Judicial And Arbitral Procedures In The United States, S. I. Strong
Faculty Publications
One of the prevailing myths of transnational litigation is that U.S. courts are not only ready but extremely willing to use antisuit injunctions to preclude parties from filing or pursuing proceedings elsewhere in the world. In fact, anti-suit injunctions (sometimes referred to as "stays" of litigation) are considered an extraordinary remedy in the United States, and the general rule is that "parallel proceedings on the same in personam claim should ordinarily be allowed to proceed simultaneously, at least until judgment is reached in one which can be pled as res judicata in the other." While this approach, often referred to …
The New Handshake: Using Odr To Create Value For Consumers And Businesses, John Lande
The New Handshake: Using Odr To Create Value For Consumers And Businesses, John Lande
Faculty Blogs
This post discusses issues related to the ABA book, The New Handshake: Online Dispute Resolution and the Future of Consumer Protection, by Amy Schmitz and Colin Rule. The book is designed to help build consumer protection that will benefit both consumers and merchants. It explains problems with the status quo, suggesting how ODR can improve handling of consumer problems and identifying challenges in implementing ODR systems.
The First Amendment, The University And Conflict: An Introduction To The Symposium, Christina E. Wells
The First Amendment, The University And Conflict: An Introduction To The Symposium, Christina E. Wells
Faculty Publications
Universities across the country have experienced a dramatic increase in free speech conflicts - i.e., an experience of discord between individuals or groups of speakers. These conflicts occur in various forms. For example, members of university communities (e.g., students, staff, or faculty) have protested controversial speakers. Some have called for universities to disinvite controversial speakers. Others have heckled or shouted down speakers. Finally, some members of university communities - usually students - have protested university officials' or other students' expression by occupying buildings, camping or interrupting meetings in order to disseminate their message. It is common to view resolution of …
Confusing Dispute Resolution Jargon, John M. Lande
Confusing Dispute Resolution Jargon, John M. Lande
Faculty Blogs
Decision trees enable people to assign probabilities to various contingencies and produce expected values for uncertain events.
Overcoming Roadblocks To Reaching Settlement In Family Law Cases, John M. Lande
Overcoming Roadblocks To Reaching Settlement In Family Law Cases, John M. Lande
Faculty Publications
In “litigation as usual,” settlement often comes only after adversarial posturing, the original conflict escalates, the relationships deteriorate, the process takes too long and costs too much, and nobody is really happy with the resolution. This article describes roadblocks to negotiation and ways to overcome them to reach good settlements in family law cases.
There's An "App" For That: Developing Online Dispute Resolution To Empower Economic Development, Amy J. Schmitz
There's An "App" For That: Developing Online Dispute Resolution To Empower Economic Development, Amy J. Schmitz
Faculty Publications
Traditionally, litigation has been the norm for resolving disputes. It takes place in a public forum and face-to-face. In a global economy, however, such public and face-to-face dispute resolution is not feasible. This is especially true with cross-border purchases through e-commerce. E-commerce requires more efficient and less litigious remedy systems that allow consumers to obtain remedies on their purchases without the cost and travel associated with traditional face-to-face procedures. This has led to development of online dispute resolution (“ODR”) processes, especially with respect to business-to-consumer contracts. Accordingly, scholarship and policy papers have advanced ODR for the benefit of consumers. What …
Truth In A Post-Truth Society: How Sticky Defaults, Status Quo Bias, And The Sovereign Prerogative Influence The Perceived Legitimacy Of International Arbitration, S. I. Strong
Faculty Publications
Through empirical and theoretical studies conducted by political scientists, philosophers, psychologists, and economists, this Article demonstrates how three phenomena - sticky defaults, status quo bias, and the sovereign prerogative-work in parallel to create enduring, but demonstrably incorrect, perceptions about the legitimacy of international arbitration. Interdisciplinary research also provides a potential solution in the form of a heuristic known as the Reversal Test, which acts as an objective diagnostic tool to identify the influence of unconscious cognitive distortions such as the status quo bias. Through this analysis, this Article not only addresses one of the core paradoxes in international dispute resolution, …
Rethinking The Law Of Legal Negotiation: Confidentiality Under Federal Rule Of Evidence 408 And Related State Laws, Richard C. Reuben
Rethinking The Law Of Legal Negotiation: Confidentiality Under Federal Rule Of Evidence 408 And Related State Laws, Richard C. Reuben
Faculty Publications
Federal Rule of Evidence 408 and related state laws are among the most important rules to implement the national policy favoring the settlement of legal disputes. These rules bar the introduction of statements made during negotiations leading to the resolution of legal disputes. However, comprehensive analysis of the rule's text, doctrinal history, and modem context demonstrates that the rule no longer meets its noble goals. Rather, the rule has evolved textually from a remarkably narrow and complex categorical presumption of inadmissibility with limited exceptions to a simpler rule that gives courts considerable deference to admit such evidence when they deem …
A Blueprint For Online Dispute Resolution System Design, Amy J. Schmitz
A Blueprint For Online Dispute Resolution System Design, Amy J. Schmitz
Faculty Publications
A great deal of discussion focuses on how arbitration and similar private dispute resolution harms consumers, and how businesses seek ways to avoid helping consumers. It is often assumed that companies and consumers are on opposing “teams.” In reality, however, consumers and companies enjoy more commonalities than contradictions. Both benefit when deals go well and disputes are resolved quickly and cheaply. The problem is that face-to-face dispute resolution can be costly in terms of time and money. Furthermore, getting lawyers involved may inspire gamesmanship and adversarial antics aimed to protect one’s reputation for staying “strong” and refusing to settle or …
Introduction To "Dispute Resolution And Political Polarization", Rafael Gely
Introduction To "Dispute Resolution And Political Polarization", Rafael Gely
Faculty Publications
Dispute resolution practitioners and scholars know conflict. In fact, some would say that we love conflict. And yet, despite our affinity with conflict, the polarization that is evident in today's public space has been disconcerting. While we generally operate in a space where we are constantly exploring options, seeking compromise, helping participants explore their interests and finding ways to move towards agreement, what seems like an inability to even engage in any kind of dialogue is troubling. These and other related concerns led the editors of the Journal of Dispute Resolution to solicit contributions from seven well-known conflict resolution scholars …