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Articles 1 - 30 of 73
Full-Text Articles in Law
Lawyer, Form Thyself: Professional Identity Formation Strategies In Legal Education, Professional Responsibility, And Experiential Courses, Susan S. Daicoff
Lawyer, Form Thyself: Professional Identity Formation Strategies In Legal Education, Professional Responsibility, And Experiential Courses, Susan S. Daicoff
Susan Daicoff
Professional identity formation as a learning objective in law school may appear to be nontraditional and perhaps even innovative. While perhaps not a new concept, it is not typically an explicit goal of legal education. Empirical data finds that law school has demonstrable effects upon law students’ professional development; it also finds that certain nontraditional skills and competencies (or “soft skills”) make lawyers most effective. This article argues for explicit planning for and inclusion of professional identity development, including training in these nontraditional skills, in legal education. Professional identity encompasses one’s values, preferences, passions, intrinsic satisfactions, emotional intelligence, as well …
User Friendly: Informality And Expertise, Annelise Riles
User Friendly: Informality And Expertise, Annelise Riles
Annelise Riles
No abstract provided.
Burden Of Proof, Prima Facie Case And Presumption In Wto Dispute Settlement, John J. Barceló Iii
Burden Of Proof, Prima Facie Case And Presumption In Wto Dispute Settlement, John J. Barceló Iii
John J. Barceló III
The essay maintains that the WTO Appellate Body's concepts and terminology concerning a claimant's burden of proof-the concepts of prima facie case, presumption, and burden shifting-are disturbingly ambiguous and potentially misleading. This is so whether one thinks of these terms from either a common law or a civil law perspective. In the face of the current ambiguity, a future panel might understand the AB's prima facie case concept to require an overwhelming level of proof from the claimant. On the other hand, a different panel might allow a rather weak level of claimant's proof to meet the prima facie requirement, …
Who Decides The Arbitrators' Jurisdiction? Separability And Competence-Competence In Transnational Perspective, John J. Barceló Iii
Who Decides The Arbitrators' Jurisdiction? Separability And Competence-Competence In Transnational Perspective, John J. Barceló Iii
John J. Barceló III
No abstract provided.
Expanded Judicial Review Of Awards After Hall Street And In Comparative Perspective, John J. Barceló Iii
Expanded Judicial Review Of Awards After Hall Street And In Comparative Perspective, John J. Barceló Iii
John J. Barceló III
The essay addresses whether party preference for more intrusive court review of the facts and law of an aribitral award will (or should) be respected in national arbitration law. The recent U.S. Supreme Court decision in Hall Street rules that expanded review clauses are not enforceable under the Federal Arbitration Act. The essay argues, however, that expanded review of an international arbitral award should still be possible in the U.S. if the parties draft the arbitration clause carefully. For that purpose the parties should include an expanded review clause and should place the arbitral seat in a State that allows …
Acciones Colectivas Vs Cláusula De Arbitraje, Jorge E. De Hoyos Walther
Acciones Colectivas Vs Cláusula De Arbitraje, Jorge E. De Hoyos Walther
Jorge E De Hoyos Walther
Análisis de la resolución de la Suprema Corte de Justicia que permite la procedencia una accione colectiva, aun cuando las partes se hayan sometido al arbitraje.
Expanding The Nafta Chapter 19 Dispute Settlement System: A Way To Declaw Trade Remedy Laws In A Free Trade Area Of The Americas?, Stephen J. Powell
Expanding The Nafta Chapter 19 Dispute Settlement System: A Way To Declaw Trade Remedy Laws In A Free Trade Area Of The Americas?, Stephen J. 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 …
Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Leonard Riskin
Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Leonard Riskin
Leonard L Riskin
Seven law school faculty members and one practicing attorney recently developed and taught a wholly new kind of law course based on an already published case study, Damages: One Family's Legal Struggles in the World of Medicine, by Barry Werth, an investigative reporter who spent several years researching to write the book. Damages, an in-depth account of a medical malpractice case, presents the perspectives of the injured family, the defendant physician, the lawyers, and the three mediators. In this Symposium Introduction, the authors provide a summary of Werth's book, explain why they decided to create a course based on his …
Eleven Big Ideas About Conflict: A Superficial Guide For The Thoughtful Journalist, Leonard L. Riskin
Eleven Big Ideas About Conflict: A Superficial Guide For The Thoughtful Journalist, Leonard L. Riskin
Leonard L Riskin
When Professor Richard Reuben asked me to speak about the most basic ideas in conflict resolution to a group that included renowned journalists and journalism scholars, I balked. Surely these notions would seem too obvious, mundane, or superficial. But Richard - a practicing journalist for many years as well as an expert on conflict - assured me that the audience would find most of them surprising and useful. I hope he is correct.I plan to present eleven ideas from the dispute resolution literature that I find particularly helpful in my work and life and which I think any journalist would …
Is That All There Is? "The Problem" In Court-Oriented Mediation, Leonard L. Riskin, Nancy A. Welsh
Is That All There Is? "The Problem" In Court-Oriented Mediation, Leonard L. Riskin, Nancy A. Welsh
Leonard L Riskin
The alternative process of mediation is now well-institutionalized and widely (though not universally) perceived to save time and money and satisfy lawyers and parties. However, the process has failed to meet important aspirations of its early proponents and certain expectations and needs of one-shot players. In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and other ordinary civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues …
Managing Inner And Outer Conflict: Selves, Subpersonalities, And Internal Family Systems, Leonard L. Riskin
Managing Inner And Outer Conflict: Selves, Subpersonalities, And Internal Family Systems, Leonard L. Riskin
Leonard L Riskin
This article describes potential benefits of considering certain processes within an individual that take place in connection with external conflict as if they might be negotiations or other processes that are routinely used to address external disputes, such as mediation or adjudication. In order to think about internal processes in this way, it is necessary to employ a model of the mind that includes entities capable of engaging in such processes. The Internal Family Systems (IFS) model, developed by Richard C. Schwartz, works well for this purpose. The IFS model is grounded on the construct that the mind is composed …
Annual Saltman Lecture: Further Beyond Reason: Emotions, The Core Concerns, And Mindfulness In Negotiation, Leonard L. Riskin
Annual Saltman Lecture: Further Beyond Reason: Emotions, The Core Concerns, And Mindfulness In Negotiation, Leonard L. Riskin
Leonard L Riskin
This article focuses on one particularly common problem: Sometimes people who understand the Core Concerns System, know how to use it, and intend to employ it in a particular negotiation, either fail to do so or fail to do so skillfully; when they review the negotiation, they regret not having used the Core Concerns System, and believe that using it would have produced a better process and outcome. When this occurs, it often results from deficits or faults in the negotiator's awareness. It follows that a negotiator can enhance his ability to employ the Core Concerns System through improving his …
The Contemplative Lawyer: On The Potential Contributions Of Mindfulness Meditation To Law Students, Lawyers, And Their Clients, Leonard L. Riskin
The Contemplative Lawyer: On The Potential Contributions Of Mindfulness Meditation To Law Students, Lawyers, And Their Clients, Leonard L. Riskin
Leonard L Riskin
This Article proposes that introducing mindfulness meditation into the legal profession may improve practitioners' well-being and performance and weaken the dominance of adversarial mind-sets. By enabling some lawyers to make more room for - and act from - broader and deeper perspectives, mindfulness can help lawyers provide more appropriate service (especially through better listening and negotiation) and gain more personal satisfaction from their work. Part I of this article describes a number of problems associated with law school and law practice. Part II sets forth a variety of ways in which lawyers, law schools, and professional organizations have tried to …
Creating And Certifying The Professional Mediator -- Education And Credentialing, Joseph B. Stulberg, Donald C. Peters, Tracy L. Allen, Judith P. Meyer
Creating And Certifying The Professional Mediator -- Education And Credentialing, Joseph B. Stulberg, Donald C. Peters, Tracy L. Allen, Judith P. Meyer
Don Peters
Existing and pending law school mediation programs, post-graduate mediator training programs, mentorship programs, credentialing movements, and continuing mediation education were examined by a panel and speakers directly involved in those fields. Are we effectively training new mediators in law schools and post-graduate programs? Should we, and how can we, "credential" mediators? Do good mediators need to be re-trained? How would continuing mediation educational requirements be implemented?
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 C. Peters
Don Peters
This article examines legal cultural and other factors influencing the resistance to mediating commercial disputes displayed by U.S. and Latin American lawyers. After surveying current contexts in which commercial mediation occurs in the United States and in Latin American countries and summarizing data regarding commercial actors’ knowledge of the benefits of mediating, it analyzes the relatively infrequent use of mediation despite 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.
To Sue Is Human; To Settle Divine: Intercultural Collaborations To Expand The Use Of Mediation In Costa Rica, Donald C. Peters
To Sue Is Human; To Settle Divine: Intercultural Collaborations To Expand The Use Of Mediation In Costa Rica, Donald C. Peters
Don Peters
Virtually all societies have developed non-adjudicative methods to resolve disputes. Third party intervention to help resolve disputes consensually, typically called mediation or conciliation, occurs in all cultures throughout the world. It now occurs in Costa Rica only voluntarily and primarily in family, community, labor, agricultural, and trade contexts. Connecting mediation or conciliation to court systems provides a comparatively new use of third party interventions not involving adjudication through arbitration or litigation. This typically occurs by referring matters for mediation services provided by state-funded programs, private centers, and private mediators. Florida, the first American state to authorize courts to order mediation …
When Lawyers Move Their Lips: Attorney Truthfulness In Mediation And A Modest Proposal, Donald Peters
When Lawyers Move Their Lips: Attorney Truthfulness In Mediation And A Modest Proposal, Donald Peters
Don Peters
This article examines whether the punch line that you can tell when lawyers are lying by confirming that their lips are moving applies to their conduct when negotiating in mediations. General surveys of lawyer honesty suggest that this perception probably does apply to the way lawyers negotiate in mediations. Only 20% of people surveyed in a 1993 American Bar Association poll described the legal profession as honest, and that number fell to 14% in a 1998 Gallup poll. However, research demonstrates a connection between honest negotiating and perceived effectiveness. A study of 5,000 Denver and Phoenix lawyers found that honest, …
Open-Minded Listening, Jonathan R. Cohen
Open-Minded Listening, Jonathan R. Cohen
Jonathan R. Cohen
Parties in conflict do not typically listen to one another well. On a physical level they hear what their counterparts say, but on a deeper level they do not truly absorb or think seriously about their counterparts’ words. If they listen at all, they listen with an ear toward how they can refute rather than toward what they may learn. This article explores how we might change this. In contrast to prior research examining external aspects of listening (e.g., how being listened to influences the speaker), this article probes the internal side of listening, specifically, whether the listener will allow …
Just When You Thought You Were Finished! A Mediator's View Of Bock V. Hansen, Charles Ferguson
Just When You Thought You Were Finished! A Mediator's View Of Bock V. Hansen, Charles Ferguson
Charles Ferguson
In what should have been an ordinary coverage dispute the California First District Court of Appeal in Bock v. Hansen, 225 Cal. App. 4th 215 (2014) has attracted considerable commentary by authorizing the plaintiff husband and wife to sue an individual employee of their home insurer for negligently misstating certain provisions of their policy to them while adjusting their claim. Mostly overlooked in the ensuing discussions of the case has been the fact that the case was settled before the decision was issued. Here the mediator analyzes why it would have been prudent for the court to wait for a …
Wto Case Law In 2013, Sacerdoti Giorgio, Emily Lydgate, Guendalina C. De Gaspari, Regis Y. Simo, Carlo De Stefano
Wto Case Law In 2013, Sacerdoti Giorgio, Emily Lydgate, Guendalina C. De Gaspari, Regis Y. Simo, Carlo De Stefano
Regis Y. Simo
This is an analytical survey of the WTO case law for 2013.It was a slow year for WTO case law in the sense that the only Appellate Body decisions to appear were the “twin reports” Canada – Renewable Energy and Canada – Feed-In Tariffs, which focus on the same renewable energy measures in the Canadian province of Ontario. In addition, two unappealed Panel Reports on antidumping measures, China – X-Ray Equipment and China – Broiler Products were adopted by the Dispute Settlement Body (DSB) in 2013.
The Internet Is The New Public Forum: Why Riley V. California Supports Net Neutrality, Adam Lamparello
The Internet Is The New Public Forum: Why Riley V. California Supports Net Neutrality, Adam Lamparello
Adam Lamparello
Technology has ushered civil liberties into the virtual world, and the law must adapt by providing legal protections to individuals who speak, assemble, and associate in that world. The original purposes of the First Amendment, which from time immemorial have protected civil liberties and preserved the free, open, and robust exchange of information, support net neutrality. After all, laws or practices that violate cherished freedoms in the physical world also violate those freedoms in the virtual world. The battle over net neutrality is “is absolutely the First Amendment issue of our time,” just as warrantless searches of cell phones were …
Alternative Dispute Resolution In Georgia, Douglas H. Yarn
Alternative Dispute Resolution In Georgia, Douglas H. Yarn
Douglas Yarn
No abstract provided.
Evaluation Dispute Resolution Under Uncertainty: An Empirical Look At Bayes' Theorem And The Expected Value Of Perfect Information, Gregory Todd Jones, Douglas H. Yarn
Evaluation Dispute Resolution Under Uncertainty: An Empirical Look At Bayes' Theorem And The Expected Value Of Perfect Information, Gregory Todd Jones, Douglas H. Yarn
Douglas Yarn
No abstract provided.
Getting To Yes In Specialized Courts: The Unique Role Of Adr In Business Court Cases, Benjamin Tennille, Lee Applebaum, Anne Tucker
Getting To Yes In Specialized Courts: The Unique Role Of Adr In Business Court Cases, Benjamin Tennille, Lee Applebaum, Anne Tucker
Anne Tucker
No abstract provided.
Is The Use Of Mediation Appropriate In Adult Guardianship Cases?, Mary F. Radford
Is The Use Of Mediation Appropriate In Adult Guardianship Cases?, Mary F. Radford
Mary F. Radford
No abstract provided.
Ethics Consultations And Conflict Engagement In Health Care, Charity Scott
Ethics Consultations And Conflict Engagement In Health Care, Charity Scott
Charity Scott
This article explores the intersection of two professional fields - bioethics and clinical ethics consultation in health care on one hand, and alternative dispute resolution ("ADR") and conflict management on the other - which until recent years remained relatively unknown to each other. It marries the literatures and lessons of these two fields in order to promote the quality of ethics consultations in hospitals and other health care organizations. * Increasingly, health care ethics committees and consultants acknowledge the need to employ the frameworks, approaches, and tools of good conflict management to do their work effectively. Similarly, conflict specialists and …
Advantages And Disadvantages Of Mediation In Probate, Trust, And Guardianship Matters , Mary F. Radford
Advantages And Disadvantages Of Mediation In Probate, Trust, And Guardianship Matters , Mary F. Radford
Mary F. Radford
Mediation is the ADR process by which a neutral third party works with disputants to reach a mutually agreeable resolution. Mediation is arguably the oldest and most popular ADR technique in use today. Part I of this essay discusses the commonly accepted advantages of mediation as an alternative to litigation, and, in some instances, questions whether those advantages become disadvantages in the context of probate, trust, and guardianship cases. Part II examines the use of mediation as a component of the actual estate planning process rather than as an alternative to litigation.
Securities Arbitration: A Need For Continued Reform, William Gregory, William Schneider
Securities Arbitration: A Need For Continued Reform, William Gregory, William Schneider
William A. Gregory
No abstract provided.
Arbitration's Summer Soldiers Marching Into Fall: Another Look At Eisenberg, Miller, And Sherwin's Empirical Study Of Arbitration Clauses In Consumer And Nonconsumer Contracts, Nancy Kim
Nancy Kim
Our empirical study examines the role and importance of arbitration clauses in standard form contracts, primarily with other businesses. While much has been written about the impact of mandatory arbitration clauses in consumer contracts, relatively little has been written on mandatory arbitration clauses in customer agreements where the customer was a business and not an individual consumer. In this Article, we specifically address the findings presented in Theodore Eisenberg, Geoffrey Miller, and Emily Sherwin’s study, Arbitration’s Summer Soldiers: An Empirical Study of Arbitration Clauses in Consumer and Nonconsumer Contracts.1 Our study finds that many businesses employ mandatory arbitration clauses in …
Bargaining Power And Background Law, Nancy Kim
Bargaining Power And Background Law, Nancy Kim
Nancy Kim
Power in contract law typically refers to the bargaining strength of each contracting party in relation to the other. In assessing the relative bargaining power of each party, courts and commentators often consider factors specific to the parties, such as socio-economic status and education level. In this Essay, I suggest another factor that affects the power of the parties in negotiating or modifying their agreement, one that I refer to as the "background law." The background law is the substantive law that governs the subject matter of the contract. This Essay focuses specifically on the background law of copyrights and …