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Full-Text Articles in Law

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 ...


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.


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 ...


Forward: Symposium On Broke And Broken: Can We Fix Our State Indigent Defense System?, Rodney J. Uphoff Jul 2010

Forward: Symposium On Broke And Broken: Can We Fix Our State Indigent Defense System?, Rodney J. Uphoff

Faculty Publications

The Symposium presenters and commentators, most of whom had worked at some point in their career as a public defender, brought a wealth of experience to the discussion. While the presentations and comments made that day, together with the articles that follow in this Symposium issue, do not provide any quick fix or easy solution, they do offer some important lessons for lawmakers to consider as states struggle to improve the plight of indigent defenders and their clients.


The Supreme Court And The Sophisticated Use Of Digs, Rafael Gely, Michael E. Solimine Jan 2010

The Supreme Court And The Sophisticated Use Of Digs, Rafael Gely, Michael E. Solimine

Faculty Publications

In this article, we extend this literature in several ways. In part II, we provide a brief overview of the certiorari and DIG process, and explore the possible motivations for the Court to DIG a case. In Part III we describe our data, and in Part IV we discuss our results. Part V concludes the paper.


The Movement Toward Early Case Handling In Courts And Private Dispute Resolution, John M. Lande Jan 2008

The Movement Toward Early Case Handling In Courts And Private Dispute Resolution, John M. Lande

Faculty Publications

This article identifies early case handling (ECH) as an important general phenomenon in dispute system design theory and practice, catalogs the major ECH processes, and urges practitioners and policymakers to encourage use of and experimentation with ECH processes when appropriate.The key element of ECH is that people intentionally exercise responsibility for handling the case from the outset. ECH processes in courts include early case management procedures, differentiated case management systems, early neutral evaluation, and other early alternative dispute resolution (ADR) processes. ECH in the private sector includes ADR pledges and contract clauses, early case assessment and ADR screening protocols ...


Health Courts?, Philip G. Peters Jr. Jan 2008

Health Courts?, Philip G. Peters Jr.

Faculty Publications

This article undertakes the first detailed critique of the proposal from Common Good and the Harvard School of Public Health to replace medical malpractice jury trials with adjudication before specialized health courts. Professor Peters concludes that the modest benefits likely to be produced by the current health court proposal are matched by the risks of bias and overreaching that these courts would also present. Missing from the plan is the doctrinal change mostly likely to improve patient safety - hospital enterprise liability. Without enterprise liability, the health court proposal is unlikely to achieve its patient safety goals and, as a result ...


Judging Judges And Dispute Resolution Processes, John M. Lande Apr 2007

Judging Judges And Dispute Resolution Processes, John M. Lande

Faculty Publications

This article critiques Professor Chris Guthrie's lead symposium article entitled, "Misjudging." Guthrie's article makes two major arguments. The first is a descriptive, empirical argument that judges are prone to error because of three types of "blinders" and that people underestimate the amount of such judicial error. The second argument is prescriptive, recommending that, because of these judicial blinders, disputants should consider using non-judicial dispute resolution processes generally, and particularly facilitative mediation and arbitration.This article critiques both arguments. It notes that, although Guthrie presents evidence that judges do make the kinds of errors that he describes, his article ...


Courts Have The Final Say: Does The Doctrine Of Manifest Disregard Promote Lawful Arbitral Awards Or Disguise Unlawful Judicial Review, Lindsay Biesterfeld Jul 2006

Courts Have The Final Say: Does The Doctrine Of Manifest Disregard Promote Lawful Arbitral Awards Or Disguise Unlawful Judicial Review, Lindsay Biesterfeld

Journal of Dispute Resolution

In exchange for a speedy, economical dispute resolution process, parties that submit to binding arbitration assume the risk that an arbitrator might misapply the law. United States Supreme Court precedent and federal law favor agreements to arbitrate by limiting judicial review of arbitral awards and requiring courts to "rigorously enforce arbitration agreements." These judicial constraints support the arbitral goals of efficiency and finality by reducing the risk that arbitral awards will be vacated on appeal. To balance the risk that arbitrators may abuse this standard of review, courts have supplemented restricted judicial review with a doctrine that allows an arbitral ...


Whose Finding Is It Anyway: The Division Of Labor Between Courts And Arbitrators With Respect To Waiver, David Lefevre Jan 2006

Whose Finding Is It Anyway: The Division Of Labor Between Courts And Arbitrators With Respect To Waiver, David Lefevre

Journal of Dispute Resolution

Given the emphasis with which the Supreme Court has made clear its policy favoring arbitration, it is not surprising that some courts may have reacted by divesting themselves of a "gateway issue" long decided by courts. Traditionally, courts have determined whether a party has acted inconsistently with its right to arbitration, thereby waiving it, but a few courts found that the question is properly before an arbitrator. Recently, the First Circuit Court of Appeals in Marie v. Allied Home Mortgage Corporation2 established a framework through which the federal circuits may begin to close the potential split of authority regarding waiver ...


Introduction To Vanishing Trial Symposium, John M. Lande Jan 2006

Introduction To Vanishing Trial Symposium, John M. Lande

Faculty Publications

This symposium shows that "vanishing trial" phenomena touch an extremely broad range of issues including transformations of society, courts, dispute resolution procedures, and even the nature of knowledge. These phenomena relate to decisions by litigants in particular cases, court systems, national policy, and international relations. This subject is too large and complex for any symposium to analyze fully, especially at this early stage of analysis. This symposium makes an important contribution to this study, with theories and evidence about the existence, nature, and extent of reductions in trials and similar proceedings. It elaborates a range of theories about possible causes ...


How Much Justice Can We Afford?: Defining The Courts' Roles And Deciding The Appropriate Number Of Trials, Settlement Signals, And Other Elements Needed To Administer Justice, John M. Lande Jan 2006

How Much Justice Can We Afford?: Defining The Courts' Roles And Deciding The Appropriate Number Of Trials, Settlement Signals, And Other Elements Needed To Administer Justice, John M. Lande

Faculty Publications

This article discusses how the U.S. court system can function optimally given declining trial rates and the limited resources available. The question of how much justice we can afford is a challenge that becomes more difficult as budgets fall behind the increasing demand for and cost of court services. Presumably most analysts would agree that courts should try cases when appropriate - and help litigants find just resolutions without trial when it is not needed. The courts' ability to provide trials in some cases is possible only if the vast majority of other cases are not tried.This article provides ...


Convicting The Innocent: Aberration Or Systemic Problem?, Rodney J. Uphoff Jan 2006

Convicting The Innocent: Aberration Or Systemic Problem?, Rodney J. Uphoff

Faculty Publications

In practice, the right to adequate defense counsel in the United States is disturbingly unequal. Only some American criminal defendants actually receive the effective assistance of counsel. Although some indigent defendants are afforded zealous, effective representation, many indigent defendants and almost all of the working poor are not. The quality of representation a defendant receives generally is a product of fortuity, of economic status, and of the jurisdiction in which he or she is charged. For many defendants, the assistance of counsel means little more than counsel's help in facilitating a guilty plea. With luck, money, and location primarily ...


Some Reflections On The Symposium: Judging, The Classical Legal Paradigm And The Possible Contributions Of Science, Christina E. Wells Oct 2005

Some Reflections On The Symposium: Judging, The Classical Legal Paradigm And The Possible Contributions Of Science, Christina E. Wells

Faculty Publications

One theme running through the many excellent contributions to this symposium involves the myriad influences on judicial decision-making. As Professor Wrightsman notes, Supreme Court Justices' personal characteristics may affect their ability to influence colleagues and, consequently, the outcome of Supreme Court decisions. Professor Ruger observes that judges have both attitudinal and jurisprudential preferences that may change over time, affecting legal outcomes differently as time passes. Professor Sisk similarly notes that judges' personal values and experiences influence their decision-making. These observations are consistent with those of numerous other scholars, who find wide-ranging and diverse influences on the judicial resolution of legal ...


Justice Blackmun And The Spirit Of Liberty, Richard C. Reuben Oct 2005

Justice Blackmun And The Spirit Of Liberty, Richard C. Reuben

Faculty Publications

As we see in this symposium, Justice Harry Blackmun is as controversial in death as he was in life. We live in a time of increasing absolutism, where things are either black or white, red or blue, you are either for me or against me, my way or the highway. It is when we are swayed by the sirens of absolutism that we are most likely to make mistakes, for absolutism diminishes our capacity to see nuance, much less to appreciate and account for it in our reasoning. This is a dangerous thing in a court, and in a democracy ...


Foreword - Reflections On Judging: A Discussion Following The Release Of The Blackmun Papers , Christina E. Wells, Martha Dragich Oct 2005

Foreword - Reflections On Judging: A Discussion Following The Release Of The Blackmun Papers , Christina E. Wells, Martha Dragich

Faculty Publications

Justice Blackmun's papers were opened to the public on March 4, 2004, the fifth anniversary of his death. Held in the Manuscript Division of the Library of Congress, the collection includes over half a million items, many handwritten by Justice Blackmun. Anyone can read them. For legal scholars, this kind of research can only be described as exhilarating and many of the articles in this symposium draw on research from Justice Blackmun's papers. For the public, the release comes at a time when the interest in judges is particularly acute.


Pro-Arbitration Policy: Is This What The Parties Really Intended - The Courts' Treatment Of Forum Selection Clauses In Arbitration Agreements, The, Lance Roskens Jul 2005

Pro-Arbitration Policy: Is This What The Parties Really Intended - The Courts' Treatment Of Forum Selection Clauses In Arbitration Agreements, The, Lance Roskens

Journal of Dispute Resolution

In today's global economy, it is not uncommon for parties from different locations to contract together both in commerce and in employment. Especially in the context of employers, one party will often want any and all disputes it has with its employees to be resolved via arbitration in a certain forum. To accomplish this, employers often include a forum selection clause in the arbitration agreement with the future employee. Thus, if and how courts address forum selection clauses is of paramount importance to employers. In Sterling Financial Investment Group, Inc. v. Hammer, the 11 th Circuit Court of Appeals ...


Shifting The Focus From The Myth Of "The Vanishing Trial" To Complex Conflict Management Systems, Or I Learned Almost Everything I Need To Know About Conflict Resolution From Marc Galanter, John M. Lande Apr 2005

Shifting The Focus From The Myth Of "The Vanishing Trial" To Complex Conflict Management Systems, Or I Learned Almost Everything I Need To Know About Conflict Resolution From Marc Galanter, John M. Lande

Faculty Publications

To say that The Vanishing Trial is a myth is not to suggest that the facts or analysis in Professor Marc Galanter's seminal report on the vanishing trial are fictional or inaccurate. Indeed, he marshals a massive amount of data to show that the number of trials and the trial rates have been declining for the past four decades, particularly in the federal courts. The report documents an apparent paradox: the proportion of cases going to trial has dropped sharply during the past forty years despite substantial increases in many other legal indicators including the number of lawyers, the ...


Resolving A Split: May Courts Order Consolidation Of Arbitration Proceedings Absent Express Agreement By The Parties, Jonathan R. Waldron Jan 2005

Resolving A Split: May Courts Order Consolidation Of Arbitration Proceedings Absent Express Agreement By The Parties, Jonathan R. Waldron

Journal of Dispute Resolution

In Illinois Farmers Insurance Co. v. Glass Service Co., 8 the Minnesota Supreme Court had the opportunity to revisit its 1973 decision in Grover-Dimond Associates v. American Arbitration Ass'n 9 in light of conflicting case law developed since that time.' 0 This Note will address the current split in state and federal courts, and suggest that the best way to resolve this issue is through state adoption of the RUAA.


Applying The Eligibility Rule In Securities Arbitration: Resolving Circuit Court Conflict Regarding The Proper Role Of Arbitrators And Courts - Howsam V. Dean Witter Reynolds, Inc., James D. Hughes Jul 2003

Applying The Eligibility Rule In Securities Arbitration: Resolving Circuit Court Conflict Regarding The Proper Role Of Arbitrators And Courts - Howsam V. Dean Witter Reynolds, Inc., James D. Hughes

Journal of Dispute Resolution

In Howsam v. Dean Witter Reynolds, Inc., the United States Supreme Court reviewed a Tenth Circuit holding that the eligibility rule presented a question of arbitrability, and was thus for the court to decide. Reversing, the Supreme Court held that the arbitrator, not a court, should apply the time limit rule. The Court's decision resolves the split among the circuit courts in addition to allowing arbitration clauses in securities firms' client agreements to serve their purpose of providing an efficient and less costly method of litigating disputes relating to investment accounts, ultimately increasing investor confidence in the securities industry.


First Options, Consent To Arbitration, And The Demise Of Separability: Restoring Access To Justice For Contracts With Arbitration Provisions, Richard C. Reuben Apr 2003

First Options, Consent To Arbitration, And The Demise Of Separability: Restoring Access To Justice For Contracts With Arbitration Provisions, Richard C. Reuben

Faculty Publications

This article describes the context and current state of the law in this area under the Federal Arbitration Act (FAA), urges the Court to continue its path toward actual consent to arbitration, and suggests an approach for finally reconciling the tension between Prima Paint and First Options. Part II describes the nature and historical context of the arbitrability problem. Part III focuses specifically on the doctrine of separability, which is the most critical (and most complex) of these exceptions. Part IV discusses the impact on separability of recent U.S. Supreme Court case law, especially the 1995 decision in First ...


The Quiet Demise Of Deference To Custom: Malpractice Law At The Millenium, Philip G. Peters Jr. Jan 2000

The Quiet Demise Of Deference To Custom: Malpractice Law At The Millenium, Philip G. Peters Jr.

Faculty Publications

According to conventional wisdom, tort law allows physicians to set their own standard of care. While defendants in ordinary tort actions are expected to exercise reasonable care under the circumstances, physicians traditionally have needed only to conform to the customs of their peers. However, judicial deference to physician customs is eroding. Gradually, quietly and relentlessly, state courts are withdrawing this legal privilege. Already, a dozen states have expressly rejected deference to medical customs and another nine, although not directly addressing the role of custom, have rephrased their standard of care in terms of the reasonable physician, rather than compliance with ...


Legal Aid Program For North Dakota, William B. Fisch Jan 1966

Legal Aid Program For North Dakota, William B. Fisch

Faculty Publications

Since the summer of 1965, the State Bar Association of North Dakota, through a special subcommittee on Legal Aid and Defense of Indigents and its standing committee on the same subject,1 has been investigating the need for legal aid in North Dakota, possible sources for funds to finance legal aid programs in the state, and possible forms which a program might take to meet the need. As a result of these investigations, a proposal has been prepared by the committee for submission to the Legal Services Program of the Office of Economic Opportunity (headed by Mr. Bamberger), for federal ...


Civil Code: Notes For An Uncelebrated Centennial, William B. Fisch Jan 1966

Civil Code: Notes For An Uncelebrated Centennial, William B. Fisch

Faculty Publications

This is the first installment of a projected study of the Dakota Civil Code. While this portion deals with the historical background of the Code and its content as drafted for New York by David Dudley Field, a subsequent article will deal with its fate in the hands of the bar, the legislature and the courts in New York, California, and especially the Dakotas.