Law Commons^™

Designing For Justice: Pandemic Lessons For Criminal Courts, Cynthia Alkon

Faculty Scholarship

March 2020 brought an unprecedented crisis to the United States: COVID-19. In a two-week period, criminal courts across the country closed. But, that is where the uniformity ended. Criminal courts did not have a clear process to decide how to conduct necessary business. As a result, criminal courts across the country took different approaches to deciding how to continue necessary operations and in doing so many did not consider the impact on justice of the operational changes that were made to manage the COVID-19 crisis. One key problem was that many courts did not use inclusive processes and include all …

Power, Exit Costs, And Renegotiation In International Law, Timothy Meyer

Faculty Scholarship

Scholars have long understood that the instability of power has ramifications for compliance with international law. Scholars have not, however, focused on how states’ expectations about shifting power affect the initial design of international agreements. In this paper, I integrate shifting power into an analysis of the initial design of both the formal and substantive aspects of agreements. I argue that a state expecting to become more powerful over time incurs an opportunity cost by agreeing to formal provisions that raise the cost of exiting an agreement. Exit costs - which promote the stability of legal rules - have distributional …

How To Be A Better Plea Bargainer, Cynthia Alkon, Andrea Kupfer Schneider

Faculty Scholarship

Preparation matters in negotiation. While plea bargaining is a criminal lawyer’s primary activity, the value of this skill is discounted by law schools and training programs. A systemic model can be used to improve plea bargaining skills. This Article offers a prep sheet for both prosecutors and defense attorneys and explains how each element of the sheet specifically applies to the plea bargaining context. The prep sheet is designed as a learning tool so that the negotiator can learn from the sheet and then make their own. The sheet highlights important considerations such as understanding the interests and goals of …

Introduction To Symposium On "Adr's Place In Navigating A Polarized Era", Nancy A. Welsh

Faculty Scholarship

Ours is a nation built for conflict, for friction. Such conflict, while painful, can be good. It can signal newfound agency, and it can be a catalyst for dialogue, customized and creative solutions, and ultimately progress. This is what many dispute resolution academics teach their students. But we are caught in such an extraordinarily polarized time, and many wonder what role ADR can and should play in navigating a polarized era. That was the question addressed by Texas A&M School of Law's March 2020 symposium, with the resulting articles - by Baruch Bush & Peter Miller, Jonathan Cohen, Jill DeTemple, …

Is There A First-Drafter Advantage In M&A?, Adam B. Badawi, Elisabeth De Fontenay

Faculty Scholarship

No abstract provided.

Sweetheart Deals, Deferred Prosecution, And Making A Mockery Of The Criminal Justice System: U.S. Corporate Dpas Rejected On Many Fronts, Peter Reilly

Faculty Scholarship

Corporate Deferred Prosecution Agreements (DPAs) are contracts negotiated between the federal government and defendants to address allegations of corporate misconduct without going to trial. The agreements are hailed as a model of speedy and efficient law enforcement, but also derided as making a “mockery” of America’s criminal justice system stemming from lenient deals being offered to some defendants. This Article questions why corporate DPAs are not given meaningful judicial review when such protection is required for other alternative dispute resolution (ADR) tools, including plea bargains, settlement agreements, and consent decrees. The Article also analyzes several cases in which federal district …

Holocaust Art Disputes: The Holocaust Expropriated Art Recovery Act Of 2016, Herbert I. Lazerow

Faculty Scholarship

The Holocaust Expropriated Recovery Act of 2016 (HEAR) purports to extend the statute of limitations for actions to recover art and certain other items stolen during the Holocaust. The new statute of limitations would be either the old statute or a six-years-from-actual-discovery statute, whichever is longer. This article analyzes the likely results of that law. It sets forth the problems leading to HEAR’s enactment, including the typical parties to these controversies, the informational difficulties confronting both claimants and purchasers of art, and the elements of recovery suits, and discusses the functions of statutes of limitations and adverse possession and prescription. …

"Enemy Of The People": Negotiating News At The White House, Carol Pauli

Faculty Scholarship

How can the press serve as a check on executive power when the president calls it “fake” and the White House denies facts? As journalists debate the right response, this article offers advice from the perspective of a journalist who is now in the legal academy. Drawing on legal scholarship in the field of conflict resolution — as well as literature in journalism and political science — this article analyzes the White House press briefing as a negotiation over both the content of news and the relationship of the press and president. It aims to help the press fulfill the …

Market Information And The Elite Law Firm, Elisabeth De Fontenay

Faculty Scholarship

As a subcategory of contract negotiations, corporate transactions present information problems that have not been fully analyzed. In particular, the literature does not address the possibility that parties may simply be unaware of value-increasing transaction terms or their outside option. Such unawareness can arise even for transactions that attract many competing parties, if the bargaining process is such that (1) the price terms are negotiated and fixed prior to the non-price terms, contrary to the standard assumption; and (2) some of the non-price terms remain private for some period of time.

A simple bargaining model shows that, when such unawareness …

Plea Bargain Negotiations: Defining Competence Beyond Lafler And Frye, Cynthia Alkon

Faculty Scholarship

In the companion cases of Lafler v. Cooper and Missouri v. Frye the U.S. Supreme Court held that there is a right to effective assistance of counsel during plea bargaining. However, the Court defined effective assistance of counsel in only one narrow phase of plea bargaining: the client counseling phase. The Court said it would not look more broadly at the negotiation process itself as "[b]argaining is, by its nature, defined to a substantial degree by personal style.” This statement indicates that the Court does not fully understanding developments in the field of negotiation over the last thirty years. Negotiation …

Trust And The Srba Mediation, Francis E. Mcgovern

Faculty Scholarship

No abstract provided.

An Overlooked Key To Reversing Mass Incarceration: Reforming The Law To Reduce Prosecutorial Power In Plea Bargaining, Cynthia Alkon

Faculty Scholarship

The need to “do something” about mass incarceration is now widely recognized. When President Obama announced plans to reform federal criminal legislation, he focused on the need to change how we handle non-violent drug offenders and parole violators. Previously, former Attorney General Eric Holder announced policies to make federal prosecutors “smart on crime.” These changes reflect, as President Obama noted, the increasing bipartisan consensus on the need for reform and the need to reduce our incarceration rates. However, proposals about what to reform, such as President Obama’s, tend to focus on some parts of criminal sentencing and on prosecutorial behavior …

What's Law Got To Do With It? Plea Bargaining Reform After Lafler And Frye, Cynthia Alkon

Faculty Scholarship

This symposium article responds to the question, what's left of the law in the wake of ADR? The article addresses this question in the context of the criminal justice system in the United States. As with civil cases, few criminal cases go to trial. Negotiated agreements through plea bargaining have been the predominate form of case resolution since at least the mid-twentieth century. Plea bargaining, as with other forms of alternative dispute resolution, is an informal process that operates largely outside the formal legal system. Plea bargains are rarely negotiated on the record in open court. Instead, they are usually …

Negotiating Bribery: Toward Increased Transparency, Consistency, And Fairness In Pretrial Bargaining Under The Foreign Corrupt Practices Act, Peter Reilly

Faculty Scholarship

This article will explore the factors that contribute to less-than-optimal transparency, consistency, and fairness in pre-trial bargaining under the Foreign Corrupt Practices Act. The article will conclude with recommendations to strengthen the current system and make it more fair.

The article is divided into four Parts: Part I will discuss the extent of the bribery problem worldwide; the history of the FCPA; and the reasons behind the recent dramatic increase in FCPA enforcement.

Part II will discuss the elements that make up FCPA ‘jurisprudence’ given that so few cases are litigated in court; the history of using DPAs and NPAs …

Justice Deferred Is Justice Denied: We Must End Our Failed Experiment In Deferring Corporate Criminal Prosecutions, Peter Reilly

Faculty Scholarship

According to the U.S. Department of Justice (“DOJ”), deferred prosecution agreements are said to occupy an “important middle ground” between declining to prosecute on the one hand, and trials or guilty pleas on the other. A top DOJ official has declared that, over the last decade, the agreements have become a “mainstay” of white collar criminal law enforcement; a prominent criminal law professor calls their increased use part of the “biggest change in corporate law enforcement policy in the last ten years.”

However, despite deferred prosecution’s apparent rise in popularity among law enforcement officials, the article sets forth the argument …

Resistance Is Not Futile: Harnessing The Power Of Counter-Offensive Tactics In Legal Persuasion, Peter Reilly

Faculty Scholarship

A core competency for people working in law or business is the ability to influence and persuade: People need to become expert at getting others to agree, to go along, and to give in. The potential “targets” of one’s influence throughout a given workday are seemingly endless and include clients and customers, co-counsel, opposing counsel, supervisors, direct reports, contractors, subcontractors, consultants, secretaries, judges, juries, witnesses, police officers, court personnel, and others. Moreover, that influence is largely exerted through words spoken and behaviors exhibited within the context of a negotiation. And yet, leading academics have argued that the vast majority of …

Lawyers And Mediation: Lessons From Mediator Stories, Sharon Press

Faculty Scholarship

In Stories Mediators Tell, Lela Love and Eric Galton have compiled a compelling anthology of stories about mediation. Not surprisingly, most of the stories involve a significant moment when something special happened for the parties. The author was reminded of presentations by Baruch Bush and Joe Folger in the early 1990's (around the time the first edition of The Promise of Mediation was published). They would ask mediators who attended their sessions to recount to a partner one of their memorable mediations. Inevitably, the stories were about transformative moments - of parties obtaining clarity for the first time - of …

Bargaining Without Law, Robert J. Condlin

Faculty Scholarship

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 …

The Remedy Gap: Institutional Design, Retaliation, And Trade Law Enforcement, Rachel Brewster

Faculty Scholarship

One of the major innovations of the World Trade Organization’s (“WTO”) Dispute Settlement Understanding (“DSU”) is the regulation of sanctions in response to violations of trade law. The DSU requires governments to receive multilateral approval before suspending trade concessions and limits the extent of retaliation to prospective damages. In addition, the DSU permits governments to impose only conditional sanctions: sanctions for violations that continue after the dispute resolution process is complete. This enforcement regime creates a remedy gap: governments cannot respond, even to obvious breaches, until the end of the dispute resolution process (and then only to the extent of …

I Could Have Been A Contender: Summary Jury Trial As A Means To Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation And Early, Consensual Dispute Resolution, Nancy A. Welsh

Faculty Scholarship

With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate - or even communicate with and listen to - such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive …

Legal Bargaining Theory's New "Prospecting" Agenda: It May Be Social Science, But Is It News?, Robert J. Condlin

Faculty Scholarship

In the good old days legal bargaining scholarship was based mostly on negotiator war stories exuberantly told. The social-scientific study of the subject did not begin in earnest until the nineteen-seventies. Since then, however, the literature of storytelling has gone into a pronounced eclipse and social-scientific study is now the principal scholarly game in town. This article questions the wisdom of this shift, almost seismic in its proportions, and argues that it is too soon to jump on the social science bandwagon. Discussion focuses on the uses made of the Prospect Theory of Daniel Kahneman and Amos Tversky and the …

Collaborative Lawyering: A Process For Interest-Based Negotiation, Jim Hilbert

Faculty Scholarship

This article discusses the growing popularity of interest-based negotiation among attorneys and outlines an approach for implementing interest-based negotiating more effectively. The article begins with an overview of interest-based negotiation and its evolution in legal practice. The article addresses the barriers that often stand between lawyers and the practice of interest-based negotiation and how clients, too, may contribute their own limitations to the mix. The article then discusses particular aspects of interest-based approaches and outlines a step-by-step process for implementing interest-based negotiating.

Navigating The Murky Waters Of Untruth In Negotiation: Lessons For Ethical Lawyers, Deborah A. Schmedemann

Faculty Scholarship

This article answers the following questions: What does the law-both general principles applicable to truthfulness in negotiation and professional responsibility rules- say about this dilemma? What do we know about the practice of truthfulness in lawyer negotiations? What have social scientists learned about deception in negotiations over the last few decades? Finally, what lessons can be drawn for lawyers seeking to behave ethically, as well as for those interested in assisting lawyers navigate the “murky waters of untruth?

Mindfulness, Emotions, And Mental Models: Theory That Leads To More Effective Dispute Resolution, Peter Reilly

Faculty Scholarship

At the core of nearly all great negotiators, mediators, lawyers, and leaders is a person who has learned to connect with other people, that is, to build relationships of trust, cooperation, and collaboration. This Article argues that when people learn a sense of "self" and "other" through both theoretical and practical knowledge and understanding of mindfulness and human emotion, connections with others are more likely to be made, and important relationships are more likely to be built.

My goal, then, is to begin thinking about how one might bring mindfulness and emotions from the “mind level” to what human relations …

Online Communication Technology And Relational Development, Anita D. Bhappu, Noam Ebner, Sanda Kaufman, Nancy A. Welsh

Faculty Scholarship

Key to success in negotiation is managing and enhancing relationships. This concept can be difficult to convey in short-term executive training courses where students have little time for relational development. Not to worry: the authors assert that by strategically using online communication before, during, and after such courses, students can effectively both train for, and depend on, good relations at a distance.

Educational Workshops On Settlement And Dispute Resolution: Another Tool For Self-Represented Litigants In Family Court, Jim Hilbert

Faculty Scholarship

This article outlines the need to help self-represented litigants (SLRs or pro se parties) understand more about how they might resolve their disputes through settlement. The article discusses the remarkable growth in the number of people representing themselves in the legal system, particularly in family court. To supplement the existing support system for SLRs, the article proposes including settlement and negotiation educational workshops for SRLs so that they can better understand 1) the prominent role of settlement in our legal system, 2) their power within the settlement process, and 3) some fundamental guidance on how they might approach settlement negotiations. …

Was Machiavelli Right? Lying In Negotiation And The Art Of Defensive Self-Help, Peter Reilly

Faculty Scholarship

The majority of law review articles addressing lying and deception in negotiation have argued, in one form or another, that liars and deceivers could be successfully reined in and controlled if only the applicable ethics rules were strengthened, and if corresponding enforcement powers were sufficiently beefed up and effectively executed. This article takes a different approach, arguing that the applicable ethics rules will likely never be strengthened, and, furthermore, that even if they were, they would be difficult to enforce in any meaningful way, at least in the context of negotiation. The article concludes that lawyers, businesspeople, and everyone else …

Technology Mediated Dispute Resolution Can Improve The Registry Of Interpreters For The Deaf Ethical Practices System: The Deaf Community Is Well Prepared And Can Lead By Example, David Allen Larson, Paula Gajewski Mickelson

Faculty Scholarship

The work of American Sign Language (ASL)/English interpreters is filled with complex interpersonal, linguistic and cultural challenges. The decisions and ethical dilemmas interpreters face on a daily basis are countless and the potential for disagreement regarding those decisions is great. Technology Mediated Dispute Resolution (TMDR) processes can be particularly helpful when misunderstandings and conflicts arise. Technology Mediated Dispute Resolution is a more inclusive phrase than Online Dispute Resolution (ODR) and includes cellular telephones, radio frequency devices, and satellite communication systems. The Deaf Community has learned to adapt and rely upon a variety of technologies and, because many Deaf individuals already …

The Effect Of Risk On Legal Valuation, Robert J. Rhee

Faculty Scholarship

From a financial economic perspective, the governing condition of a meritorious civil action is the uncertainty of outcome. Expectation and outcome deviate, and the spread is the measure of uncertainty (or variance). During litigation each party has an option to settle or select trial. The decision standard can be seen as an option strike price and a finding of liability as an “in-the-money” call option. This apparent optionality suggests the application of an option pricing model to legal valuation, and a small but growing body of scholarship endorses this concept. However, option theory is not the only concept. Under an …

A Price Theory Of Legal Bargaining: An Inquiry Into The Selection Of Settlement And Litigation Under Uncertainty, Robert J. Rhee

Faculty Scholarship

Conventional wisdom says that economic surplus is created when the cost of litigation is foregone in favor of settlement, a theory flowing from the Coase Theorem. The cost-benefit analysis weighs settlement against the expected value of litigation net of transaction cost. This calculus yields the normative proposition that settlement is a superior form of dispute resolution and so most trials are considered errors. While simple in concept, the prevailing economic model is flawed. This article is a theoretical inquiry into the selection criteria of settlement and trial. It applies principles of financial economics to construct a pricing theory of legal …