Dispute Resolution and Arbitration Commons^™

Frand And Antitrust, Herbert J. Hovenkamp

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This paper considers when a patentee’s violation of a FRAND commitment also violates the antitrust laws. It warns against two extremes. First, is thinking that any violation of a FRAND obligation is an antitrust violation as well. FRAND obligations are contractual, and most breaches of contract do not violate antitrust law. The other extreme is thinking that, because a FRAND violation is a breach of contract, it cannot also be an antitrust violation.

Every antitrust case must consider the market environment in which conduct is to be evaluated. SSOs operated by multiple firms are joint ventures. Antitrust’s role is to …

A No-Tribunal Sdrm And The Means Of Binding Creditors To The Terms Of A Restructuring Plan, Charles W. Mooney Jr.

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The paper addresses two discrete but related and essential attributes of a sovereign debt restructuring mechanism (SDRM). It first considers the merits and feasibility of an SDRM that would provide a procedure for proposing and adopting a restructuring plan for a sovereign debtor’s debt which would not involve any tribunal or administrator (a No-Tribunal SDRM). The No-Tribunal SDRM would undertake the restructuring as if the sovereign debtor and its creditors were subject to the Model CAC regime. In addition to embodying a novel and interesting structure for an SDRM—and one that eliminates the difficult hurdle of identifying a satisfactory tribunal—adoption …

The Cape Town Convention’S Improbable-But-Possible Progeny Part Two: Bilateral Investment Treaty-Like Enforcement Mechanism, Charles W. Mooney Jr.

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This Essay is Part Two of a two-part essay series that outlines and evaluates two possible future international instruments. Each instrument draws substantial inspiration from the Cape Town Convention and its Aircraft Protocol (together, the “Convention”). The Convention governs the secured financing and leasing of large commercial aircraft, aircraft engines, and helicopters. It entered into force in 2006. It has been adopted by sixty-six Contracting States (fifty-eight of which have adopted the Aircraft Protocol), including the U.S., China, the E.U., India, Ireland, Luxembourg, Russia, and South Africa.

This Part of the Essay explores whether an investor-state dispute settlement (ISDS) feature …

Shleifer's Failure, Jonathan Klick

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No abstract provided.

The Relational Contingency Of Rights, Gideon Parchomovsky, Alex Stein

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In this Article, we demonstrate, contrary to conventional wisdom, that all rights are relationally contingent. Our main thesis is that rights afford their holders meaningful protection only against challengers who face higher litigation costs than the rightholder. Contrariwise, challengers who can litigate more cheaply than a rightholder can force the rightholder to forfeit the right and thereby render the right ineffective. Consequently, in the real world, rights avail only against certain challengers but not others. This result is robust and pervasive. Furthermore, it obtains irrespectively of how rights and other legal entitlements are defined by the legislator or construed by …

Wikitruth Through Wikiorder, David A. Hoffman, Salil K. Mehra

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How does large-scale social production coordinate individual behavior to produce public goods? Hardin (1968) denied that the creation of public goods absent markets or the State is possible. Benkler (2006), Shirky (2008), Zittrain (2008), and Lessig (2008) recently countered that the needed coordination might emerge though social norms. However, the means to this coordination is under-theorized. Focusing on Wikipedia, we argue that the site’s dispute resolution process is an important force in promoting the public good it produces, i.e., a large number of relatively accurate public encyclopedia articles. We describe the development and shape of Wikipedia’s existing dispute resolution system. …

The Argentine Financial Crisis: State Liability Under Bits And The Legitimacy Of The Icsid System, William W. Burke-White

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This essay examines the jurisprudence of the International Center for the Settlement of Investment Disputes (ICSID) arbitral tribunals in a series of cases brought against the Republic of Argentina in the wake of the 2001-2002 Argentine financial collapse. The essay considers the ICSID tribunals' treatment of non-precluded measures provisions in Argentina's bilateral investment treaties (BITs) and the customary law defense of necessity and argues that the ICSID tribunals have sought to radically narrow the opportunities available to states to craft policy responses to emergency situations while strengthening investor protections beyond the intent of the states parties to the BITs under …

Negotiating Divorce: Gender And The Behavioral Economics Of Divorce Bargaining, Tess Wilkinson-Ryan, Deborah Small

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No abstract provided.

The Effect Of Conflicting Moral And Legal Rules On Bargaining Behavior: The Case Of Divorce, Tess Wilkinson-Ryan, Jonathan Baron

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No abstract provided.

The Effect Of Judicial Expedience On Attorney Fees In Class Actions, Eric Helland, Jonathan Klick

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Judges facing exogenous constraints on their pecuniary income have an incentive to reduce their workload to increase their private welfare. In the face of an increase in caseload, this incentive will induce judges to attempt to terminate some cases more rapidly. In class action cases, failing to grant an attorney fee request will delay termination. This conflict is likely to lead judges to authorize higher fees as court congestion increases. Using two data sets of class action settlements, we show that attorney fees are significantly and positively related to the congestion level of the court hearing the case.

Aggregation On The Couch: The Strategic Uses Of Ambiguity And Hypocrisy, Stephen B. Burbank

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In this Essay, Professor Burbank comments on the essays by Professors Nagareda and Issacharoff. Welcoming the opportunity to revisit the interplay between procedure and substantive law and the question of democratic accountability that Professor Nagareda’s essay presents, Professor Burbank concludes that the parts of that essay are greater than the whole. He finds that Professor Nagareda’s pursuit of unifying themes and a general normative theory leads to inconsistencies in classification between procedure and substance and to an impoverished vision of institutional legitimacy. Professor Burbank voices concern that this quest, which is also evident in the current draft of the American …

Meeting By Signals, Playing By Norms: Complementary Accounts Of Non-Legal Cooperation In Institutions, Edward B. Rock, Michael L. Wachter

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No abstract provided.

On Trademarks, Domain Names, And Internal Auctions, Gideon Parchomovsky

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No abstract provided.

Teaching Corporate Governance Through Shareholder Litigation, Jill E. Fisch

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No abstract provided.

Judgment Proofing, Bankruptcy Policy, And The Dark Side Of Tort Liability, Charles W. Mooney Jr.

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No abstract provided.

The Effect Of Offer-Of-Settlement Rules On The Terms Of Settlement, Lucian Arye Bebchuk, Howard F. Chang

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No abstract provided.

Class Action Reform, Qui Tam, And The Role Of The Plaintiff, Jill E. Fisch

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No abstract provided.

Assessing Consensus: The Promise And Performance Of Negotiated Rulemaking, Cary Coglianese

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Over its thirteen year history, the negotiated rulemaking process has yielded only thirty-five final administrative rules. By comparison, the federal government publishes over 3,000 final rules each year through the ordinary notice-and- comment process. Why have federal agencies relied so little on negotiated rulemaking? I examine this question by assessing the impact of negotiating rulemaking on its two major purposes: (1) reducing rulemaking time; and (2) decreasing the amount of litigation over agency rules. My analysis suggests that the asserted problems used to justify negotiated rulemaking have been overstated and that the limitations of negotiated rulemaking have been understated. Negotiated …

Conflicts And Defense Lawyers: From Triangles To Tetrahedrons, Tom Baker

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No abstract provided.

A Primer On Prejudgment Interest, Michael S. Knoll

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No abstract provided.

The Enforceability Of Norms And The Employment Relationship, Edward B. Rock, Michael L. Wachter

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No abstract provided.

Cross-Cultural Commerce In Shakespeare's The Merchant Of Venice, Anita L. Allen, Michael R. Seidl

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No abstract provided.

Financial Distress As A Non-Cooperative Game: A Proposal For Overcoming Obstacles To Private Workouts, Claire Oakes Finkelstein

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No abstract provided.

Bargaining And The Division Of Value In Corporate Reorganization, Howard F. Chang, Lucian A. Bebchuk

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No abstract provided.

An Economic Approach To The Determination Of Injury Under United States Antidumping And Countervailing Duty Law, Michael S. Knoll

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No abstract provided.

Corporate Debt Relationships: Legal Theory In A Time Of Restructuring, William W. Bratton

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No abstract provided.

Proposals To Amend Rule 68 - Time To Abandon Ship, Stephen B. Burbank

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No abstract provided.

Developments In Law - Toxic Waste Litigation, Howard F. Chang

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No abstract provided.

Establishment Of Bargaining Rights Without An Nlrb Election, Howard Lesnick

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No abstract provided.

State-Court Injunctions And The Federal Common Law Of Labor Contracts: Beyond Norris-Laguardia, Howard Lesnick

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No abstract provided.