Law Commons^™

Getting Real About Procedure: Changing How We Think, Write And Teach About American Civil Procedure, Suzette M. Malveaux

Publications

No abstract provided.

Using The Terms Integrative And Distributive Bargaining In The Classroom: Time For Change, Rishi Batra

Faculty Articles

The terms "integrative bargaining" and "distributive bargaining" have been with us in the dispute resolution literature since at least the 1960s, when A Behavioral Theory of Labor Negotiations was first published in 1965 by Richard Walton and Robert McKersie. While the terms were popularized by these two authors, the authors themselves acknowledged the long line of predecessors, including Mary Parker Follett, who led them to promote these categories. Since that time, "integrative" and "distributive" have been with us and have captured the imagination of scholars, trainers, and practitioners while remaining popular in the dispute resolution literature today. Despite the proliferation …

Improving Lawyers’ Judgment: Is Mediation Training De-Biasing?, Douglas N. Frenkel, James H. Stark

All Faculty Scholarship

When people are placed in a partisan role or otherwise have an objective they seek to accomplish, they are prone to pervasive cognitive and motivational biases. These judgmental distortions can affect what people believe and wish to find out, the predictions they make, the strategic decisions they employ, and what they think is fair. A classic example is confirmation bias, which can cause its victims to seek and interpret information in ways that are consistent with their pre-existing views or the goals they aim to achieve. Studies consistently show that experts as well as laypeople are prone to such biases, …

Book Review: “The Good Lawyer: Seeking Quality In The Practice Of Law”, Linda H. Edwards

Scholarly Works

In their first collaboration, The Happy Lawyer, the writing team of Nancy Levit and Doug Linder tackled a crucially important subject: how to have a happy life in the law. As part of that project, they interviewed more than two hundred lawyers about what makes them happy in their jobs. Levit and Linder noticed that happy lawyers nearly always talked about doing good work. Curious about the connection, the authors turned to recent research in neuroscience and learned, not to their surprise, that a key to a happy life is, indeed, the sense of doing good work. It is …

The American Legal Profession In The Twenty-First Century, Stephen M. Sheppard

Faculty Articles

Lawyers in the United States work in public service, private counseling, and dispute resolution, but many also work outside of traditional legal practice. The million-member American bar, second largest in the world, grows more diverse by gender, and ethnicity and older on average. All members of this learned profession must qualify by education or examination and by proof of good character and fitness before taking an oath to serve as an attorney. Thence, there are few limitations on the form of legal practice, though many law firms require an associateship before an attorney becomes an owner of the firm. Economic …

The Trouble With Categories: What Theory Can Teach Us About The Doctrine-Skills Divide, Linda H. Edwards

Scholarly Works

We might not need another article decrying the doctrine/skills dichotomy. That conversation seems increasingly old and tired. But like it or not, in conversations about the urgent need to reform legal education, the dichotomy’s entailments confront us at every turn. Is there something more to be said? Perhaps surprisingly, yes. We teach our students to examine language carefully, to question received categories, and to understand legal questions in light of their history and theory. Yet when we talk about the doctrine/skills divide, we seem to forget our own instruction.

This article does not exactly take sides in the typical skills …

Providing Dispute Resolution Expertise To The Community, Rishi Batra

Faculty Articles

As schools and other public institutions struggle for funding, law schools and their students have new opportunities to fill unmet needs by providing consulting expertise in facilitation and dispute resolution. Such partnerships can provide valuable service for the institutions while giving students a chance to apply their skills to issues in nearby communities.

Principles For Designing Negotiation Instruction, John M. Lande, Ximena Bustamante, Jay Folberg, Joel Lee

Faculty Publications

This article analyzes recommendations in the Rethinking Negotiation Teaching (RNT) series. Instructors teaching negotiation and other dispute resolution subjects have long had a hard time trying to cover everything they would like in their courses. The RNT project has documented (and, to some extent, stimulated) a growing profusion of ideas and techniques for teaching negotiation, which has multiplied instructors’ dilemmas in designing their courses. Since instructors cannot teach everything they would like, this article suggests some general principles for making decisions about what to include and how to conduct these courses. Clearly, there is no single right or best way …

The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students For Real World Lawyering, John M. Lande, Jean R. Sternlight

Faculty Publications

This Article briefly reviews the long history of critiques of legal education that highlight the failure to adequately prepare students for what they will and should do as attorneys. It takes a sober look at the hurdles reformers face when trying to make significant curricular changes and proposes a modest menu of reforms that interested faculty and law schools can largely achieve without investing substantial additional resources.This Article emphasizes the special contributions that alternative dispute resolution (ADR) can provide to legal education more generally. ADR instruction is an important corrective to a curriculum that routinely conveys the erroneous implication that …

The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students For Real World Lawyering, Jean R. Sternlight

Scholarly Works

This Article briefly reviews the long history of critiques of legal education that highlight the failure to adequately prepare students for what they will and should do as attorneys. It takes a sober look at the hurdles reformers face when trying to make significant curricular changes and proposes a modest menu of reforms that interested faculty and law schools can largely achieve without investing substantial additional resources. This Article emphasizes the special contributions that alternative dispute resolution (ADR) can provide to legal education more generally. ADR instruction is an important corrective to a curriculum that routinely conveys the erroneous implication …

Chronicling The Complexification Of Negotiation Theory And Practice, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The essay reviews the content of twenty-five years of the Harvard Program on Negotiation's Negotiation Journal, identifying themes and issues explored on its pages in the past, the current issues challenging the field’s scholars and practitioners, and the issues likely to confront us in the future. It argues that while we in the field hoped for simple, elegant, and universal theories of negotiation and conflict resolution, the last twenty-five years have demonstrated the increasing complexification of negotiation theory and practice, from increased numbers of parties and issues, and dilemmas of intertemporal commitments, ethics, accountability, and relationships of private action to …

Developing Better Lawyers And Lawyering Practices: Introduction To The Symposium On Innovative Models Of Lawyering, John M. Lande

Faculty Publications

This article provides an overview of a symposium sponsored by the University of Missouri Center for the Study of Dispute Resolution in 2007 that featured leading practitioners and scholars to analyze innovative models of lawyering, including Collaborative Law and other processes. The authors include David Hoffman, Nancy Welsh, Julie Macfarlane, Richard Shields, Pauline Tesler, Scott Peppet, Forrest ("Woody") Mosten, Jeanne Fahey, Kathy Bryan, Lawrence McLellan, and John Lande. The articles address issues including: teaching law students to "feel" like lawyers and not just "think" like them, using "conflict resolution advocacy" (which is not necessarily oriented to the courts), developing lawyers' …

Private Rights And Collective Governance: A Functional Approach To Natural Resources Law, Eric T. Freyfogle

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

4 pages.

"Eric T. Freyfogle, Max L. Rowe Professor of Law, University of Illinois College of Law"

Mindfulness: Foundational Training For Dispute Resolution, Leonard L. Riskin

UF Law Faculty Publications

This Article addresses the problem of mindlessness in counseling, negotiating, and mediating, and offers potential solutions and recommendations for developing foundational capacities through training in mindfulness meditation.

Damages: Using A Case Study To Teach Law, Dispute Resolution, And Lawyering , Melody Richardson Daily, Chris Guthrie, Leonard L. Riskin

Faculty Publications

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 …

The Pervasiveness Of Culture In Conflict, Pat K. Chew

Articles

Law faculty and scholars are increasingly cognizant of the role of culture in dispute resolution. This essay offers a beginning roadmap for exploring the cultural context of conflict. It begins by considering how to assess our own cultural profiles, highlighting some useful social science constructs for this purpose. It then discusses how our interactive perception of others' cultural profiles makes a difference. The essay also explores the tensions between, on one hand, the pervasiveness of culture in conflict and, on the other hand, American legal traditions that appear contrary to the incorporation of culture into dispute resolution processes.

Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Leonard L. Riskin

UF Law Faculty Publications

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 …

Teaching And Learning From The Mediations In Barry Werth's Damages, Leonard L. Riskin

UF Law Faculty Publications

This essay is based primarily on materials the author developed for courses taught at the University of Missouri-Columbia, School of Law, in the winter 2002 and 2003 semesters, based on Barry Werth's book, "Damages."

Forgetfulness, Fuzziness, Functionality, Fairness And Freedom, In Dispute Resolution, Jeffrey W. Stempel

Scholarly Works

Professor Subrin is a self-professed traditionalist who has been one of the most forceful defenders of what I might term neo-traditional “Clarkian” litigation. By that, I mean the model of civil disputing in which litigation is a primary vehicle. More important, the litigation is based on notice pleading, broad discovery, and a preference for adjudication on the merits.

Key Subrin works over the years have focused on the historical path of the Clarkian model, which served to fuel much of the law revolution of the mid-Twentieth Century, to the “new era” of civil procedure and dispute resolution that dominated the …

The Contemplative Lawyer: On The Potential Contributions Of Mindfulness Meditation To Law Students, Lawyers, And Their Clients, Leonard L. Riskin

UF Law Faculty Publications

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 …

A More Complete Look At Complexity, Jeffrey W. Stempel

Scholarly Works

The ability of courts to successfully resolve complex cases has been a matter of contentious debate, not only for the last quarter-century, but for most of the twentieth century. This debate has been part of the legal landscape at least since Judge Jerome Frank's polemic book from which this Symposium derives its title, and probably since Roscoe Pound's famous address to the American Bar Association. During the 1980s and 1990s in particular, the battlelines of the pro-and anti-court debate have been brightly drawn. Some commentators, most reliably successful plaintiffs' counsel and politically liberal academics, defend the judicial track record in …