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Dispute Resolution and Arbitration

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Full-Text Articles in Law

The Thinning Vision Of Self-Determination In Court-Connected Mediation: The Inevitable Price Of Institutionalization?, Nancy A. Welsh Jul 2018

The Thinning Vision Of Self-Determination In Court-Connected Mediation: The Inevitable Price Of Institutionalization?, Nancy A. Welsh

Nancy Welsh

Ethical codes for mediators describe party self-determination as “the fundamental principle of mediation,” regardless of the context within which the mediation is occurring. The definition of self-determination, however, is a matter of dispute. Based on a review of the debate surrounding the promulgation and revision of ethical codes for court-connected mediators in Florida and Minnesota, this Article demonstrates that a vision of self-determination anchored in party-centered empowerment is yielding to a vision that is more reflective of the norms and traditional practices of lawyers and judges, as well as the courts’ strong orientation to efficiency and closure of cases through ...


The Place Of Court-Connected Mediation In A Democratic Justice System, Nancy A. Welsh Jul 2018

The Place Of Court-Connected Mediation In A Democratic Justice System, Nancy A. Welsh

Nancy Welsh

A justice system, and the processes located within it, ought to deliver justice. That seems simple enough. But, of course, delivering justice is never so simple. Justice and the systems that serve it are the creatures of context.

This Article considers mediation as just one innovation within the much larger evolution of the judicial system of the United States. First, this Article outlines how the values of democratic governance undergird our traditional picture of the American justice system, presumably because the invocation of such values helps the system to deliver something that will be respected by the nation’s citizens ...


Making Deals In Court-Connected Mediation: What's Justice Got To Do With It?, Nancy A. Welsh Jul 2018

Making Deals In Court-Connected Mediation: What's Justice Got To Do With It?, Nancy A. Welsh

Nancy Welsh

When mediation was first introduced to the courts, the process was hailed as “alternative.” Mediation gave disputants the opportunity to discuss and resolve their dispute themselves; the role of the third party was to facilitate the disputants’ negotiations, not to dictate the outcome; and because the disputants were able to focus on their underlying interests in mediation, the process could result in creative, customized solutions. The picture of mediation is changing, however, as the process settles into its role as a tool for the resolution of personal injury, contract, and other nonfamily cases on the courts’ civil dockets. Attorneys dominate ...


Can Nfl Players Obtain Judicial Review Of Arbitration Decisions On The Merits When A Typical Hourly Union Worker Cannot Obtain This Unusual Court Access?, Michael Z. Green, Kyle T. Carney Jun 2018

Can Nfl Players Obtain Judicial Review Of Arbitration Decisions On The Merits When A Typical Hourly Union Worker Cannot Obtain This Unusual Court Access?, Michael Z. Green, Kyle T. Carney

Michael Z. Green

Several recent court cases, brought on behalf of National Football League (NFL) players by their union, the NFL Players Association (NFLPA), have increased media and public attention to the challenges of labor arbitrator decisions in federal courts. The Supreme Court has established a body of federal common law that places a high premium on deferring to labor arbitrator decisions and counseling against judges deciding the merits of disputes covered by a collective bargaining agreement (CBA). A recent trend suggests federal judges have ignored this body of law and analyzed the merits of labor arbitration decisions in the NFL setting.

NFL ...


Courts And Arbitration: Reconciling The Public With The Private, Susan L. Karamanian Aug 2017

Courts And Arbitration: Reconciling The Public With The Private, Susan L. Karamanian

Arbitration Law Review

No abstract provided.


Empowering Individual Plaintiffs, Alex Stein, Gideon Parchomovsky Jan 2017

Empowering Individual Plaintiffs, Alex Stein, Gideon Parchomovsky

Faculty Scholarship at Penn Law

The individual plaintiff plays a critical—yet, underappreciated—role in our legal system. Only lawsuits that are brought by individual plaintiffs allow the law to achieve the twin goals of efficiency and fairness. The ability of individual plaintiffs to seek justice against those who wronged them deters wrongdoing, ex ante, and in those cases in which a wrong has been committed nevertheless, it guarantees the payment of compensation, ex post. No other form of litigation, including class actions and criminal prosecutions, or even compensation funds, can accomplish the same result. Yet, as we show in this Essay, in many key ...


Can Nfl Players Obtain Judicial Review Of Arbitration Decisions On The Merits When A Typical Hourly Union Worker Cannot Obtain This Unusual Court Access?, Michael Z. Green, Kyle T. Carney Jan 2017

Can Nfl Players Obtain Judicial Review Of Arbitration Decisions On The Merits When A Typical Hourly Union Worker Cannot Obtain This Unusual Court Access?, Michael Z. Green, Kyle T. Carney

Faculty Scholarship

Several recent court cases, brought on behalf of National Football League (NFL) players by their union, the NFL Players Association (NFLPA), have increased media and public attention to the challenges of labor arbitrator decisions in federal courts. The Supreme Court has established a body of federal common law that places a high premium on deferring to labor arbitrator decisions and counseling against judges deciding the merits of disputes covered by a collective bargaining agreement (CBA). A recent trend suggests federal judges have ignored this body of law and analyzed the merits of labor arbitration decisions in the NFL setting.

NFL ...


Enforcement Of Icsid Convention Arbitral Awards In U.S. Courts, Abby Cohen Smutny, Anne D. Smith, Mccoy Pitt Apr 2016

Enforcement Of Icsid Convention Arbitral Awards In U.S. Courts, Abby Cohen Smutny, Anne D. Smith, Mccoy Pitt

Pepperdine Law Review

No abstract provided.


Court Assistance In Arbitration—Some Observations On The Critical Stand-By Function Of The Courts, Jan K. Schaefer Apr 2016

Court Assistance In Arbitration—Some Observations On The Critical Stand-By Function Of The Courts, Jan K. Schaefer

Pepperdine Law Review

No abstract provided.


Introduction: International Arbitration And The Courts, Donald Earl Childress Iii, Jack J. Coe Jr., Lacey L. Estudillo Apr 2016

Introduction: International Arbitration And The Courts, Donald Earl Childress Iii, Jack J. Coe Jr., Lacey L. Estudillo

Pepperdine Law Review

What role do national courts play in international arbitration? Is international arbitration an “autonomous dispute resolution process, governed primarily by non-national rules and accepted international commercial rules and practices” where the influence of national courts is merely secondary? Or, in light of the fact that “international arbitration always operates in the shadow of national courts,” is it not more accurate to say that national courts and international arbitration act in partnership? On April 17, 2015, the Pepperdine Law Review convened a group of distinguished authorities from international practice and academia to discuss these and other related issues for a symposium ...


Occam's Phaser: Making Proportional Discovery (Finally) Work In Litigation By Requiring Phased Discovery, Michael Murphy Apr 2016

Occam's Phaser: Making Proportional Discovery (Finally) Work In Litigation By Requiring Phased Discovery, Michael Murphy

Faculty Scholarship at Penn Law

This is an article about solving the problem of expensive electronic discovery in litigation by simply learning the most important facts first. Judges and parties often complain that the scope of information included in fact discovery in civil litigation is overinclusive and disproportionate to size of the dispute, resulting in overly expensive costs. The Federal Rules of Civil Procedure recently changed again to further emphasize the use of “proportional” limits in discovery, but provide little practical mechanism for parties, lawyers, and judges to make discovery “right-sized.” This Article proposes that parties should be required to “phase” discovery by first setting ...


The Emergence Of Mediation In Korean Communities, Peter Robinson, J. Youngjin Lee, J. Kwang Ho Lim, Ryul Kim Feb 2016

The Emergence Of Mediation In Korean Communities, Peter Robinson, J. Youngjin Lee, J. Kwang Ho Lim, Ryul Kim

Pepperdine Dispute Resolution Law Journal

No abstract provided.


Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra Jul 2015

Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra

Thiago Luís Santos Sombra

With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection of ...


Do Judicially Created Grounds For Vacating Arbitral Awards Still Exist?: Why Manifest Disregard Of The Law And Public Policy Exceptions Should Be Considered Under Vacatur, Ashley K. Sundquist Jul 2015

Do Judicially Created Grounds For Vacating Arbitral Awards Still Exist?: Why Manifest Disregard Of The Law And Public Policy Exceptions Should Be Considered Under Vacatur, Ashley K. Sundquist

Journal of Dispute Resolution

The Court’s strong language in Hall Street indicated the Court’s intent for the FAA to provide the exclusive grounds for vacating an arbitral award. Therefore, once the Court addresses the circuit split, it will likely hold that judicially created grounds are not an acceptable form of vacatur. However, doing so would cause individuals injustice, in particular where awards manifestly disregard the law and go against public policy. This Note argues that if the Court abolishes judicially created grounds, it should reinterpret the FAA to include manifest disregard of the law and violations to public policy under the exceeded ...


Stiffing The Arbitrators: The Problem Of Nonpayment In Commercial Arbitration, Brian Farkas, Neal M. Eiseman Jan 2015

Stiffing The Arbitrators: The Problem Of Nonpayment In Commercial Arbitration, Brian Farkas, Neal M. Eiseman

Brian Farkas

Commercial arbitration is a creature of contract; the parties are there because they choose to be, either including an arbitration clause in their written agreement or, after a dispute developed, electing to avoid litigation all together. Arbitration also comes with an up-front cost non-existent in litigation: the arbitrators. Taxpayers pay for their state and federal judges, but the parties themselves pay for their arbitrators. But what happens if one party refuses (or is otherwise unable) to pay the arbitrator? If the arbitrator then refuses to proceed, as is likely, should the dispute revert to court, in derogation of the prior ...


The Problem With Frand: How The Licensing Commitments Of Standard-Setting Organizations Result In The Misvaluing Of Patents, David Arsego Jan 2015

The Problem With Frand: How The Licensing Commitments Of Standard-Setting Organizations Result In The Misvaluing Of Patents, David Arsego

Brooklyn Journal of International Law

Standard-setting organizations (SSOs) are bodies that oversee the development of technical standards. Technical standards are common technological designs that are used across a variety of platforms, for instance LTE, which is utilized throughout the mobile phone industry. Members of SSOs contribute different pieces of technology to an ultimate design, and if a patent covers the technology, it is called a standard-essential patent (SEP). SSOs require their members to license these patents to each other on fair, reasonable, and nondiscriminatory (FRAND) terms. This Note analyzes the FRAND requirement and the different ways that courts and private parties interpret it. The ambiguity ...


Reconceptualizing Non-Article Iii Tribunals, Jaime Dodge Jan 2015

Reconceptualizing Non-Article Iii Tribunals, Jaime Dodge

Scholarly Works

The Supreme Court’s Article III doctrine is built upon an explicit assumption that Article III must accommodate non-Article III tribunals in order to allow Congress to “innovate” by creating new procedural structures to further its substantive regulatory goals. In this Article, I challenge that fundamental assumption. I argue that each of the types of non-Article III innovation and the underlying procedural goals cited by the Court can be obtained through our Article III courts. The Article then demonstrates that these are not theoretical or hypothetical solutions, but instead are existing structures already in place within Article III. Demonstrating that ...


The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson Jan 2014

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device . . . . In no ...


In Defense Of Idea Due Process, Mark C. Weber Jan 2014

In Defense Of Idea Due Process, Mark C. Weber

Mark C. Weber

Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker. This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and ...


Much Ado About Nothing?: What The Numbers Tell Us About How State Courts Apply The Unconscionability Doctrine, Susan D. Landrum Mar 2013

Much Ado About Nothing?: What The Numbers Tell Us About How State Courts Apply The Unconscionability Doctrine, Susan D. Landrum

Susan Landrum

No abstract provided.


The Arbitration Clause As Super Contract, Richard Frankel Feb 2013

The Arbitration Clause As Super Contract, Richard Frankel

Richard Frankel

It is widely acknowledged that the purpose of the Federal Arbitration Act was to place arbitration clauses on equal footing with other contracts. Nonetheless, federal and state courts have turned arbitration clauses into “super contracts” by creating special interpretive rules for arbitration clauses that do not apply to other contracts. In doing so, they have relied extensively, and incorrectly, on the Supreme Court’s determination that the FAA embodies a federal policy favoring arbitration.

While many scholars have focused attention on the public policy rationales for and against arbitration, few have explored how arbitration clauses should be interpreted. This article ...


Institutionalization Of Alternative Dispute Resolution By The State Of California , Bruce Monroe Jan 2013

Institutionalization Of Alternative Dispute Resolution By The State Of California , Bruce Monroe

Pepperdine Law Review

No abstract provided.


Ending Judgment Arbitrage: Jurisdictional Competition And The Enforcement Of Foreign Money Judgments In The United States, Gregory Shill Jan 2013

Ending Judgment Arbitrage: Jurisdictional Competition And The Enforcement Of Foreign Money Judgments In The United States, Gregory Shill

Gregory Shill

Recent multi-billion-dollar damage awards issued by foreign courts against large American companies have focused attention on the once-obscure, patchwork system of enforcing foreign-country judgments in the United States. That system’s structural problems are even more serious than its critics have charged. However, the leading proposals for reform overlook the positive potential embedded in its design.

In the United States, no treaty or federal law controls the domestication of foreign judgments; the process is instead governed by state law. Although they are often conflated in practice, the procedure consists of two formally and conceptually distinct stages: foreign judgments must first ...


Shleifer's Failure, Jonathan Klick Jan 2013

Shleifer's Failure, Jonathan Klick

Faculty Scholarship at Penn Law

No abstract provided.


First Options Of Chicago, Inc. V. Kaplan And The Kompetenz-Kompetenz Principle , Adrianna Dulic Apr 2012

First Options Of Chicago, Inc. V. Kaplan And The Kompetenz-Kompetenz Principle , Adrianna Dulic

Pepperdine Dispute Resolution Law Journal

In 1995, the United States Supreme Court in First Options of Chicago, Incorporated v. Kaplan considered whether arbitral tribunals or courts should have the primary power to decide if parties agreed to arbitrate the merits of the dispute and whether the court of appeals should accept the district court's findings of fact and law or apply a de novo standard of review. The Court unanimously held that, unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitral tribunal. Furthermore, in such a ...


Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps Symposium, S. I. Strong Jan 2012

Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps Symposium, S. I. Strong

Journal of Dispute Resolution

Finally, the purpose of this Article is not to provide answers to particular questions, since far too much depends on the individual facts and circumstances of a particular dispute to allow for abstract generalizations. Instead, the goal is to identify a useful framework for analysis of matters relating to international commercial arbitration so that newcomers and infrequent participants in this area of law can approach their specific concerns with a higher degree of understanding and sophistication.


Do We Have 18th Century Courts For The 21st Century, Michael Buenger Jan 2012

Do We Have 18th Century Courts For The 21st Century, Michael Buenger

Michael Buenger

State courts continue to face both funding and political challenges. In light of these challenges state court leaders, the bar and legal educators should undertake a serious rethinking of our state courts along three thematic lines: (1) systemic reorganization to reduce fragmentation, simplify access, and provide greater flexibility and specialization in the use of resources; (2) diversification of dispute resolution processes so that cases move in different directions with a range of resolution options pegged to the issues presented; and (3) rationalization of governance, leadership, and accountability systems to enhance effective organizational management of complex institutions.


New York Convention And The American Federal System, The Symposium, Christopher R. Drahozal Jan 2012

New York Convention And The American Federal System, The Symposium, Christopher R. Drahozal

Journal of Dispute Resolution

Whether state law can play a broader role in international arbitration matters in the United States depends on the extent to which the New York Convention and Chapter Two of the FAA (which implements the Convention) preempt state arbitration law. This article undertakes a preliminary analysis of that broad topic by examining several legal questions central to determining the preemptive effect of the New York Convention: (1) What effect, if any, does the federal-state clause (Article XI) have on U.S. obligations under the Convention? (2) To what extent does Chapter Two of the FAA apply in state court? and ...


Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong Jan 2012

Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong

Faculty Publications

This article provides just that sort of guide, outlining the various ways in which U.S. federal courts can become involved in international commercial arbitration and introducing both basic and advanced concepts in a straightforward, practical manner. However, this article provides more than just an overview. Instead, it discusses relevant issues on a motion-by-motion basis, helping readers find immediate answers to their questions while also getting a picture of the field as a whole. Written especially for busy lawyers, this article gives practitioners, arbitrators and new and infrequent participants in international commercial arbitration a concise but comprehensive understanding of the ...


Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong Jan 2012

Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong

Faculty Publications

This essay considers the tension between the autonomous theory of international commercial arbitration and the more interactive theory advanced by Gary Born during his keynote address at the recent “Border Skirmishes” symposium at the University of Missouri School of Law. In his presentation, Born considered the relationship between litigation and international commercial arbitration and distinguished between permissible “border crossings” and impermissible “border incursions.” This essay considers how these concepts play out both in routine interactions between courts and tribunals and more in difficult scenarios, such as those involving anti-suit injunctions. The discussion also presents statistics concerning the amount of ancillary ...