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Articles 1 - 23 of 23
Full-Text Articles in Law
Wrongful Discharge: Litigation Or Arbitration, Terry A. Bethel
Wrongful Discharge: Litigation Or Arbitration, Terry A. Bethel
Journal of Dispute Resolution
Throughout the country, courts are scrambling to fill the void left by the rapid disappearance of the employment-at-will doctrine. As recently as twenty years ago, most courts accepted without question the adage that employers were free to terminate employees for a good reason, a bad reason, or no reason at alL1 If motivated to explain this rule, the most frequent defense was that employees enjoyed comparable freedom. They, too, could abandon the relationship for whatever reason they desired.
Contractual Agreements To Aribtrate Disputes: Whose Intent Controls - Skewes V. Shearson Lehman Bros., Eric M. Landoll
Contractual Agreements To Aribtrate Disputes: Whose Intent Controls - Skewes V. Shearson Lehman Bros., Eric M. Landoll
Journal of Dispute Resolution
With the enactment of the Federal Arbitration Act [hereinafter F.A.A.]2 in 1925, Congress attempted to place arbitration agreements "upon the same footing as other contracts."3 This Act, later described as a "liberal federal policy favoring arbitration, "' creates a presumption in favor of arbitration where ambiguities arise as to the scope of an agreement.5 Under this interpretation, it appears that the intent of the parties can be overlooked in favor of the federal policy favoring arbitration. This is contrary to general principles of contract interpretation and would appear to be a trap for those unfamiliar with this area of the …
Juvenile Diversion: An Alternative To Juvenile Court, S'Lee Arthur Hinshaw Ii
Juvenile Diversion: An Alternative To Juvenile Court, S'Lee Arthur Hinshaw Ii
Journal of Dispute Resolution
The first juvenile courts in this country were created to keep children from being tried and sentenced as adults in adult criminal courts and from being subjected to the rigors of formal, public adversarial proceedings.' The reformers who created juvenile courts hoped to handle all delinquents within the community itself on an informal basis and without the trappings of due process.2 Using the concept of parens patriae3 and developing it into the idea that the state had the power to act in place of parents of deviant or dependent children,4 the juvenile courts used informal, discretionary procedures to diagnose the …
Labor Artibitration In Public Agencies: An Unconstitutional Delegation Of Power Or The Waking Of A Sleeping Giant - United Transportation Union V. Southern California Rapid Transit, Karen M. Speiser
Journal of Dispute Resolution
The use of arbitration to resolve labor disputes has become an irreplaceable method of dispute resolution in private enterprises and corporations all over the United States. Arbitration's popularity has come about partially from a realization of the utility of arbitration and partially from government pressure through the enactment of federal statutes. However, the government itself has resisted the imposition of arbitration to resolve disputes between its agencies and their employees. This Note will address some of the issues involved in private arbitration of public agency labor disputes.
Connecticut's Trail By Lawyer: Contract Disputes And The Attorney Fact-Finder - Beizer V. Goepfert, Craig R. Heidemann
Connecticut's Trail By Lawyer: Contract Disputes And The Attorney Fact-Finder - Beizer V. Goepfert, Craig R. Heidemann
Journal of Dispute Resolution
The rules of professional conduct in most states require attorneys to enter into written agreements with their clients when contracting on a contingent fee basis.2 In so doing, the parties define the existence and limits of their attorney-client relationship. In the present case, an attorney and his client agreed to a ten percent contingent fee; however, the lawyer transferred to a new firm prior to the conclusion of the case.4 Subsequently, the client signed a new, identical agreement provided by the attorney's new firm.5 In the contract, the attorney used the previously agreed-upon fee percentage instead of the standard office …
Summary Jury Trial: A Summary Of Issues In Dispute Resolution - Day V. Nlo, Inc., The, T. Robert Cook
Summary Jury Trial: A Summary Of Issues In Dispute Resolution - Day V. Nlo, Inc., The, T. Robert Cook
Journal of Dispute Resolution
The summary jury trial has proven to be an effective tool in the fight against the explosion of litigation in federal courts.2 In the thirteen years since its inception,3 many issues involving the summary jury trial have been disputed. Day v. NLO, Inc.4 provides an excellent example of this area of law as it raises three such issues in dispute. The case law is divided over: 1) whether the federal courts have power to compel parties to participate in summary jury trial proceedings; 2) whether the courts have the power to compel certain representatives to attend such proceedings; and 3) …
Labor Contract And External Law: Revisiting The Arbitrator's Scope Of Authority, The, Stephen L. Hayford, Anthony V. Sinicropi
Labor Contract And External Law: Revisiting The Arbitrator's Scope Of Authority, The, Stephen L. Hayford, Anthony V. Sinicropi
Journal of Dispute Resolution
This article examines the impact of Misco and the attendant body of case law emerging from the U.S. circuit courts of appeals on the labor arbitration process. The ultimate goal of this study is to ascertain whether the public policy exception warrants a rethinking of traditional views of the relationship between collective bargaining agreements and external law, and the manner in which labor arbitrators should juxtapose the two in resolving contractual disputes. The Authors assert that it does.
Peer Mediation Programs: Teaching Students Alternatives To Violence, Brian Koy Harper
Peer Mediation Programs: Teaching Students Alternatives To Violence, Brian Koy Harper
Journal of Dispute Resolution
With the ever-rising occurrence of violence' within schools2 and the high level of both student apathy and dropout rates, many people are wondering what, if anything, can be done to stem the tidal wave that seems about to crash our nation's schools upon the rocks of failure. Increasing security measures in schools, such as metal detectors,3 armed police guards, and locker searches, may prevent the violence,4 but will probably not alleviate the underlying causes.5
Monetary Damages Against States - Arbitrators Have Power To Award, But Federal Courts Cannot Enforce - Tennessee Department Of Human Services V. United States Department Of Education, R. Scott Reid
Journal of Dispute Resolution
Legislation is usually interpreted by examining statutory language and legislative history.2 However, the United States Supreme Court has considered strict guidelines for interpreting statutes that potentially interfere with Eleventh Amendment immunity rights.3 Application of these guidelines can lead to peculiar court decisions, an example of which is provided in Tennessee Department of Human Services v. United States Department of Education.4
Recent Developments: The Uniform Arbitration Act, Dan Coughlin, Laura Kintz, John Moore, Melissa Morrow
Recent Developments: The Uniform Arbitration Act, Dan Coughlin, Laura Kintz, John Moore, Melissa Morrow
Journal of Dispute Resolution
This annual Article2 has been prepared since 1983 as a survey of recent developments in the case law interpreting and analyzing various versions of the Uniform Arbitration Act (U.A.A.). 3 Currently, thirty-four states and the District of Columbia have adopted arbitration statutes patterned after the U.A.N 4 The purpose of this analysis is to promote uniformity in interpreting the U.A.A. by explaining the underlying policies and rationales that have developed from recent court decisions.
Internal Dispute Resolution: The Transformation Of Civil Rights In The Workplace, John M. Lande, Lauren B. Edelman, Howard S. Erlanger
Internal Dispute Resolution: The Transformation Of Civil Rights In The Workplace, John M. Lande, Lauren B. Edelman, Howard S. Erlanger
Faculty Publications
Many employers create internal procedures for the resolution of discrimination complaints. We examine internal complaint handlers' conceptions of civil rights law and the implications of those conceptions for their approach to dispute resolution. Drawing on interview data, we find that complaint handlers tend to subsume legal rights under managerial interests. They construct civil rights law as a diffuse standard of fairness, consistent with general norms of good management. Although they seek to resolve complaints to restore smooth employment relations, they tend to recast discrimination claims as typical managerial problems. While the assimilation of law into the management realm may extend …
Appellate Settlement Conference Programs: A Case Study, Susan A. Fitzgibbon
Appellate Settlement Conference Programs: A Case Study, Susan A. Fitzgibbon
Journal of Dispute Resolution
The 1990s may be the decade in which the courts bring alternative dispute resolution "in house." Professor Owen Fiss' nightmare that private settlement will rob courts of cases for the dispensation of justice and the furtherance of societal goals3 has become Professor Carrie Menkel-Meadow's foreboding that the courts will "co-opt" and drain the life from true alternative dispute resolution (ADR) processes.4 It may be argued that appellate court-sponsored settlement programs dodge both of these criticisms because parties have had a day in court, the process is a form of mediation, and the settlement is thus final only if the parties …
Transforming At-Will Employment Disputes Into Wrongful Discharge Claims: Fertile Ground For Adr, Mary A. Bedikian
Transforming At-Will Employment Disputes Into Wrongful Discharge Claims: Fertile Ground For Adr, Mary A. Bedikian
Journal of Dispute Resolution
This Article begins by reviewing the historical evolution of the at-will rule and examining the common law wrongful dismissal theories. Next, it describes the recent trend of arbitrating wrongful discharge disputes, a trend which the author suggests provides a practical, sound forum for the resolution of employment claims.' 3 Finally, since arbitration is in derogation of the common law, this Article discusses the constitutional and pragmatic barriers to full-scale reform and use of arbitration. The author concludes that fragmentation of interests, political motivations, and the reluctance of the United States Supreme Court to confront an indispensable provision of the Federal …
Class Action Settlement Bars, Cross Claims, And Co-Defendants: The Search For A Uniform Standard - In Re U.S. Oil & (And) Gas Litigation, Craig Richard Heidemann,
Class Action Settlement Bars, Cross Claims, And Co-Defendants: The Search For A Uniform Standard - In Re U.S. Oil & (And) Gas Litigation, Craig Richard Heidemann,
Journal of Dispute Resolution
Prior to the U.S. Oil & Gas decision, the federal courts had only considered settlement bars as related to non-settling defendants. In the U.S. Oil & Gas case, all of the defendants sought to settle with the plaintiff. 2 Only one settling defendant chose to contest the entry of the bar order. 3 In U.S. Oil & Gas, the Eleventh Circuit Court of Appeals was faced with a defendant who settled with the plaintiff but opposed an order barring its seemingly independent claims against the third-party defendant who also settled. For this reason it was a case of first impression. …
Compulsory Alternative Dispute Resolution And Voluntarism: Two-Headed Monster Or Two Sides Of The Coin , Lucy V. Katz
Compulsory Alternative Dispute Resolution And Voluntarism: Two-Headed Monster Or Two Sides Of The Coin , Lucy V. Katz
Journal of Dispute Resolution
This Article broadly defines compulsory ADR3 to include any process in which the parties experience a lack of free choice about their participation, other than a civil or criminal trial with full due process protections. Thus, it includes not only court-ordered ADR4 (or alternatives mandated by statute), but also judicial mediation, settlement conferences, non-mandatory summary jury trials, and other techniques5 in which there is pressure on litigants to forgo trials, at least temporarily, and to utilize alternatives to bring about settlement.6
Punitive Damages In Securites Arbitration: The Interplay Of State And Federal Law (Or A Smaller Bite Of The Big Apple), Marilyn B. Cane
Punitive Damages In Securites Arbitration: The Interplay Of State And Federal Law (Or A Smaller Bite Of The Big Apple), Marilyn B. Cane
Journal of Dispute Resolution
As the United States Supreme Court has observed, the Federal Arbitration Act (FAA) 2 "is something of an anomaly in the field of federal-court jurisdiction. It creates a body of federal substantive law establishing and regulating the duty to honor an agreement to arbitrate, yet it does not create any independent federal-question jurisdiction."' The parameters and effect of state law under the FAA are continually being refined by the courts. Since the FAA is silent regarding the award of punitive damages, the role state law plays with respect to this issue is unsettled.
Arbitration - Sure, But Only On Our Terms: Escape Clauses In Uninsured Motorist Policies - Schaefer V. Allstate Ins. Co., Steven R. Leppard
Arbitration - Sure, But Only On Our Terms: Escape Clauses In Uninsured Motorist Policies - Schaefer V. Allstate Ins. Co., Steven R. Leppard
Journal of Dispute Resolution
Historically, the insurance industry has widely used arbitration to resolve disputes.2 Insurance companies have increasingly included "escape clauses" in their policies.' These clauses allow an insurance company to ignore an arbitrator's award and have a claim directly heard in a trial court if the award exceeds a pre-determined amount.' The Ohio Supreme Court in Schaefer v. Allstate Insurance Co. addressed this issue and decided that the escape clause was unenforceable due to public policy.'
Post-Conviction Mediation Of Rape Cases: Working Within The Criminal Justice System To Achieve Well-Rounded Justice, Matthew J. Sauter
Post-Conviction Mediation Of Rape Cases: Working Within The Criminal Justice System To Achieve Well-Rounded Justice, Matthew J. Sauter
Journal of Dispute Resolution
This Comment will focus on the steps that can be taken within our criminal justice system to help change the attitudes of police, prosecutors, judges, jurors, and legislators toward the crime of rape. It will particularly focus on how mediation can be used concurrently with the criminal courts system in order to achieve justice for all parties involved, victims as well as offenders
Efficient Injustice: The Demise Of Teh Substantial Injustice Exception To Arbitral Finality - Moncharsh V. Heily & (And) Blase, Michael J. Smith
Efficient Injustice: The Demise Of Teh Substantial Injustice Exception To Arbitral Finality - Moncharsh V. Heily & (And) Blase, Michael J. Smith
Journal of Dispute Resolution
Judicial review of an arbitrator's decision has been a point of much controversy and discussion among jurisdictions. Many state legislatures have enacted arbitration statutes that list the grounds for review of an arbitrator's decision. However, over time, the courts have also developed some common law grounds for judicial review. Conflict often arose when a state's statute did not provide for review on the same grounds as common law. This Note examines how the California Supreme Court dealt with the difference in the statutory and common law grounds for judicial review of an arbitrator's decision.
Giving Competency Its Day In Court - In Re Fellman, Michael C. Kirkham
Giving Competency Its Day In Court - In Re Fellman, Michael C. Kirkham
Journal of Dispute Resolution
This Note will examine the decision in In re Fellman,4 where the Superior Court of Pennsylvania determined that the issue of competency was a matter for the courts, not arbitration, to determine.5 Furthermore, this Note will explain how Fellman is consistent with cases concerning different issues, but which similarly denied arbitrators authority based upon similar reasoning.