Dispute Resolution and Arbitration Commons^™

The Impact Of Banning Confidential Settlements On Discrimination Dispute Resolutio, Blair D. Bullock -- Assistant Professor Of Law, Joni Hersch -- Cornelius Vanderbilt Professor Of Law And Economics

Vanderbilt Law Review

The #MeToo movement exposed how workplace harassment plagues employment in the United States. Several states responded by passing legislation aimed at curbing harassment and employment discrimination in the workplace. One of the most common legislative efforts was to ban confidentiality provisions in certain settlement agreements. These bans, in part, attempted to stop "secret settlements" by shining light on workplace discrimination and exposing serial harassers as a means to motivate firms to actively deter workplace discrimination.

But do bans on confidentiality agreements deter the bad act? For these laws to have a deterrent effect, claims must be revealed in a public …

Adapting Private Law For Climate Change Adaptation, Jim Rossi, J. B. Ruhl

Vanderbilt Law Review

The private law of torts, property, and contracts will and should play an important role in resolving disputes regarding how private individuals and entities respond to and manage the harms of climate change that cannot be avoided through mitigation (known in climate change policy dialogue as “adaptation”). While adaptation is commonly presented as a problem needing legislative solutions, this Article presents a novel and overdue case for private law to take climate adaptation seriously.

To date, the role of private law is a significant blind spot in scholarly discussions of climate adaptation. Litigation invoking common-law doctrines in climate adaption disputes …

A Litigator’S Guide To The Galaxy: A Look At The Pragmatic Questions For Adjudicating Future Outer Space Disputes, Michael J. Listner, Joshua T. Smith

Vanderbilt Journal of Entertainment & Technology Law

Since the beginnings of the space age, outer space activities have been the realm of government with ancillary involvement by non-governmental actors. The international legal framework for outer space contemplated the involvement of non-governmental actors, but in creating dispute resolution mechanisms the role of non-governmental entities was not considered ripe. The surge of direct non-governmental involvement in outer space activities in recent years again raises the issue of dispute resolution and exemplifies the lack of dispute resolution mechanisms designed to address differences between sovereign states. As the pace of non-governmental activity increases, so does the likelihood of disputes arising between …

An Empirical Study Of Dispute Resolution Clauses In International Supply Contracts, John F. Coyle, Christopher R. Drahozal

Vanderbilt Journal of Transnational Law

International transactions present unique legal risks. When a contract touches several different nations, a party may not know where it will be called upon to defend a lawsuit or, alternatively, which nation's law will be applied to resolve that dispute. To mitigate these risks, parties will often write dispute resolution provisions into their contracts. Arbitration clauses and forum selection clauses help to reduce uncertainty relating to the forum. Choice-of-law clauses help to reduce uncertainty as to the governing law. Over the past few decades, such provisions have become commonplace in international contracting. And yet there exist vanishingly few empirical studies …

Inside The Arbitrator's Mind, Chris Guthrie, Susan D. Franck, Anne Van Aaken, James Freda, Jeffrey J. Rachlinski

Vanderbilt Law School Faculty Publications

Arbitrators are lead actors in global dispute resolution. They are to global dispute resolution what judges are to domestic dispute resolution. Despite its global significance, arbitral decision making is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions, rather than fully deliberative decisions. We also find evidence that casts doubt on the conventional wisdom that arbitrators render “split the baby” decisions. Although direct comparisons are difficult, we find that arbitrators generally perform at least as well as, but never …

The Right To Regulate In Investor-State Arbitration: Slicing And Dicing Regulatory Carve-Outs, Vera Korzun

Vanderbilt Journal of Transnational Law

This Article examines the "right to regulate" as the power of a sovereign state to adopt and maintain government measures for public welfare objectives. It explores how claims by foreign investors in investor-state dispute settlement (ISDS) may interfere with the state's ability to regulate, and how the state can protect its right in international investment agreements. The Article first explains the structure of modern international investment law and dispute resolution. It next turns to the right to regulate and explores why regulatory disputes represent a major challenge for ISDS. It continues by analyzing how exceptions, exclusions, and other safeguard provisions …

The Future Of Sharia Law In American Arbitration, Erin Sisson

Vanderbilt Journal of Transnational Law

A rising tide of Islamophobia in the United States has led, in recent years, to state-level efforts to prohibit the application of Sharia law in American courts. While these bans have been largely unsuccessful as legislation--the U.S. Tenth Circuit Court of Appeals has even declared one such ban unconstitutional--the growing uneasiness among Americans regarding the application of Sharia law persists. Similar tensions have been addressed in Canada and the United Kingdom through reform of the application of Sharia law in alternative dispute resolution (ADR) mechanisms. By taking a critical look at the American ADR system through the lens of Canadian …

Sticky Arbitration Clauses - The Use Of Arbitration Clauses After Concepcion And Amex, Peter B. Rutledge, Christopher R. Drahozal

Vanderbilt Law Review

We present the results of the first empirical study of the extent to which businesses have switched to arbitration after AT&T Mobility LLC v. Concepcion. The Supreme Court's decision in Concepcion led commentators to predict that every business soon would use an arbitration clause, coupled with a class arbitration waiver, in their standard form contracts to avoid the risk of class actions. We examine two samples of franchise agreements: one sample in which we track changes in arbitration clauses since 1999, and a broader sample focusing on changes since 2011, immediately before Concepcion was decided. Our central finding is consistent …

Constraining Targeting In Noninternational Armed Conflicts, Peter Margulies

Vanderbilt Journal of Transnational Law

An American drone pilot thousands of miles away from Afghanistan sees a tempting target on his computer screen. Thanks to the Predator drone's video capabilities,' the pilot is treated to the spectacle of a known Taliban commander and over a dozen other armed men greeting a dozen tribesmen, who are also armed to the teeth. Everyone depicted on-screen has a gun. The pilot fires the Predator's missile. Shortly thereafter, he confirms the deaths of thirty Taliban fighters and associated forces.

While the facts above, particularly the presence of the known Taliban commander, tend to show that the strike was consistent …

Implementing An Online Dispute Resolution Scheme: Using Domain Name Registration Contracts To Create A Workable Framework, Michael G. Bowers

Vanderbilt Law Review

Online businesses have grown tremendously in the past decade. As a larger percentage of the U.S. economy moves onto the Internet, a larger percentage of people doing business online will find themselves disagreeing with each other. How those disputes are resolved presents an ongoing challenge in a world where traditional ordering mechanisms, like geographical boundaries, become increasingly antiquated. As contracts are formed across state and national lines, dispute resolution systems built around spatial locations become ever more unwieldy. The complications and costs of securing a favorable decision from a far-off decisionmaking body make reliance on geographic-based systems exceedingly difficult. Out …

Order At The End Of Life: Establishing A Clear And Fair Mechanism For The Resolution Of Futility Disputes, Ashley Bassel

Vanderbilt Law Review

On January 22, 2008, Ruben Betancourt was admitted to Trinitas Regional Medical Center in New Jersey for surgery for malignant thymoma, a cancer of the thymus gland (a small organ underneath the breastbone).' Following surgery, the patient developed brain damage due to lack of oxygen and, as a result, lapsed into unconsciousness. For the next five months, Mr. Betancourt was admitted to various medical facilities and readmitted finally to Trinitas in July 2008 for renal failure. For six more months, the unconscious patient remained in the hospital on an artificial ventilator, receiving renal dialysis and nutrition through tube feeding.

The …

Misjudging, Chris Guthrie

Vanderbilt Law School Faculty Publications

Judging is difficult. This is obviously so in cases where the law is unclear or the facts are uncertain. But even in those cases where the law is as clear as it can be, and where the relevant facts have been fully developed, judges might still have difficulty getting it right. Why do judges misjudge? Judges, I will argue, possess three sets of "blinders": informational blinders, cognitive blinders, and attitudinal blinders. These blinders make adjudication on the merits - by which I mean the accurate application of governing law to the facts of the case - difficult. This difficulty, in …

Blinking On The Bench: How Judges Decide Cases, Chris Guthrie, Andrew J. Wistrich

Vanderbilt Law School Faculty Publications

How do judges judge? Do they apply law to facts in a mechanical and deliberative way, as the formalists suggest they do, or do they rely on hunches and gut feelings, as the realists maintain? Debate has raged for decades, but researchers have offered little hard evidence in support of either model. Relying on empirical studies of judicial reasoning and decision making, we propose an entirely new model of judging that provides a more accurate explanation of judicial behavior. Our model accounts for the tendency of the human brain to make automatic, snap judgments, which are surprisingly accurate, but which …

Arbitration Costs And Contingent Fee Contracts, Christopher R. Drahozal

Vanderbilt Law Review

A common criticism of arbitration is that its upfront costs (arbitrators' fees and administrative costs) may preclude consumers and employees from asserting their claims. Some commentators have argued further that arbitration costs undercut the benefits to consumers and employees of contingent fee contracts, which permit the claimants to defer payment of attorneys' fees and litigation expenses until they prevail in the case (and if they do not prevail, avoid such costs altogether). This paper argues that this criticism has it exactly backwards. Rather than arbitration costs interfering with the workings of contingent fee contracts, the contingent fee mechanism provides a …

Demand For A Jury Trial And The Selection Of Cases For Trial, Joni Hersch

Vanderbilt Law School Faculty Publications

This paper uses a unique data set to examine how parties in civil litigation choose whether to demand a jury trial or to waive this right and whether trial forum influences the probability of trial versus settlement. Plaintiffs are more likely to demand trial by jury when juries are relativety more favorable to plaintiffs in similar cases and jury trials are relatively less costly than bench trials. Cases in which jury trials are demanded are 5.5 percentage points more ikely to settle without a trial than cases in which jury trials are waived. This differential settlement rate by potential trial …

Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Chris Guthrie

Vanderbilt Law School 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 …

Understanding Settlement In Damages (And Beyond), Chris Guthrie

Vanderbilt Law School Faculty Publications

For all of the ways in which the Sabia case is extraordinary, its outcome--settlement--is decidedly ordinary. In most civil litigation, as in the Sabias' litigation against Dr. Maryellen Humes and Norwalk Hospital, "[s]ettlement is where the action is." Roughly two-thirds of all cases settle (and most of the rest are resolved through motions). Why do most cases settle? Given the costs, delay, and unpleasantness of the litigation process, why do any cases go to trial? To address these questions--that is, to explain why most cases settle as well as why some cases "fail" to settle and result in trial--legal academics …

Insights From Cognitive Psychology, Chris Guthrie

Vanderbilt Law School Faculty Publications

My goal in this paper is to explore cognitive psychology's place in the dispute resolution field. To do so, I first look back and then look forward. Looking back, I identify the five insights from cognitive psychology that have had the biggest impact on my own dispute resolution teaching and scholarship. Looking forward, I identify my five hopes for the future of cognitive psychology in the dispute resolution field.

Panacea Or Pandora's Box?: The Costs Of Options In Negotiation, Chris Guthrie

Vanderbilt Law School Faculty Publications

The prescriptive literature on negotiation advises negotiators to generate, evaluate, and select from multiple options at the bargaining table. At first glance, this "option-generation prescription" seems unassailable. After all, negotiators can include in their agreements only those options that they actually consider, so the more options they consider, the more likely it seems they will reach an agreement that maximizes their preferences. Upon closer inspection, however, the option-generation prescription begins to appear vulnerable, for it rests on a questionable premise about negotiator behavior. The option-generation prescription assumes that negotiators will make rational decisions when selecting from multiple options; regardless of …

Where's The Beef? Mad Cows And The Blight Of The Sps Agreement, Ryan D. Thomas

Vanderbilt Journal of Transnational Law

This Note will first outline the SPS Agreement itself--specifically, Part II attempts to present the relevant articles in a manner providing the necessary background for understanding the WTO dispute panel and Appellate Body decisions. Next, Part III discuss and critique, the dispute panel and Appellate Body decisions, specifically, noting the shortcomings of these decisions in the context of the SPS Agreement and its utility as a precedent of international dispute resolution in the area of international regulation of drugs and feedstuffs. Next, I will addresses the likely effect of these decisions upon a possible WTO resolution of the SRM dispute …

Better Settle Than Sorry: The Regret Aversion Theory Of Litigation Behavior, Chris Guthrie

Vanderbilt Law School Faculty Publications

Legal scholars have developed two dominant theories of litigation behavior: the Economic Theory of Suit and Settlement,which is based on expected utility theory, and the Framing Theory of Litigation, which is based on prospect theory. While Professor Guthrie acknowledges the explanatory power of these theories, he argues that they are flawed because they portray litigants solely as calculating creatures. These theories disregard any role emotion might play in litigation decision making. Guthrie proposes a mplementary theory-the Regret Aversion Theory of Litigation Behavior-that views litigants as both calculating and emotional creatures. With roots in economics, cognitive psychology, and social psychology, the …

A "Party Satisfaction" Perspective On A Comprehensive Mediation Statute, Chris Guthrie, James Levine

Vanderbilt Law School Faculty Publications

During the past fifteen years, the alternative dispute resolution movement has greatly altered the legal landscape. Courts, legislatures and administrative agencies have enacted more than 2000 laws dealing with mediation and other dispute resolution processes. The National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Bar Association Section of Dispute Resolution have recently formed a unique partnership to assess whether a model or uniform mediation statute might remedy some of the problems caused by the current patchwork of often confusing and conflicting mediation laws. The task of drafting a comprehensive mediation statute poses many challenges. The drafters …

Thinking Of Mediation As A Complex Adaptive System, J.B. Ruhl

Vanderbilt Law School Faculty Publications

This article uses my work on complex adaptive systems to think about how litigation and mediation differ in terms of adaptive qualities, suggesting that mediation is indeed a more adaptive mode of dispute resolution in certain contexts.

Psychology, Economics, And Settlement: A New Look At The Role Of The Lawyer, Chris Guthrie, Russell Korobkin

Vanderbilt Law School Faculty Publications

Law and economics models of litigation settlement, based on the behavioral assumptions of rational choice theory, ignore the many psychological reasons that settlement negotiations can fail, yet they accurately predict that vast majority of lawsuits will settle short of formal adjudication. What explains this? We present experimental data that suggests lawyers might evaluate the settlement vs. adjudication decision from a perspective more closely akin to "rational choice theory" than will non-lawyers and, consequently, increase the observed level of settlement. We then evaluate whether the hypothesized difference between lawyers and non-lawyers is likely to lead to more efficient dispute resolution, concluding …

American Conflicts Scholarship And The New Law Merchant, Friedrich K. Juenger

Vanderbilt Journal of Transnational Law

Professor Juenger argues that both the unilateralist and the multilateralist schools of thought share a fixation on the idea that law must emanate from the power of a sovereign state. The author points out that such a view of law is a historic; that, in the past, merchants relied on a substantive body of supranational rules that transcended national borders. This Article discusses the contemporary significance of the law merchant for law professors, law students, and practitioners.

The author explains how the practices of contemporary transnational commercial enterprises, as well as the opinions of contemporary scholars , support the idea …

Psychological Barriers To Litigation Settlement: An Experimental Approach, Chris Guthrie, Russell Korobkin

Vanderbilt Law School Faculty Publications

The traditional economic model of settlement breakdown -- as developed by Priest and Klein -- provides an important first step in understanding why some lawsuits settle and others go to trial. Rational miscalculation undoubtedly pushes some litigants into court who might otherwise reach out-of-court settlement. Absent miscalculation, however, some litigants still find themselves in court. We have presented experimental evidence suggesting that these litigants may proceed to trial because psychological barriers to value maximizing behavior impede their settlement efforts. Indeed, our research empirically grounds the hypothesis that psychological barriers are powerful causal agents of trials. The usefulness of this evidence …

Opening Offers And Out-Of-Court Settlement: A Little Moderation May Not Go A Long Way, Chris Guthrie, Russell Korobkin

Vanderbilt Law School Faculty Publications

When two litigants resolve a dispute through out-of-court settlement rather than trial, they realize joint gains of trade equal to the sum of the costs both parties would have incurred had they obtained a trial judgment minus the costs they incur reaching settlement. This opportunity for mutual gain causes most civil lawsuits to settle out-of-court. Yet, in spite of the opportunity for joint gain, negotiations fail in a significant number of lawsuits. One reason for this surprising result is that even when joint gains are substantial and obvious to the litigants, they still must agree on a method of dividing …

Deceptive Negotiating And High-Toned Morality, Walter W. Steele, Jr.

Vanderbilt Law Review

Rising concern about the adequacy of the adversary system to deal with disputes quickly, fairly, and economically has led to increased interest in a broad range of alternate dispute resolution mechanisms such as arbitration and the use of mini-trials. Presently, however, negotiation between disputants or negotiation between counsel for disputants is the best understood and most often utilized alternative to litigation. In fact, negotiating prior to litigating is so pervasive that it might be thought of as an inherent part of the litigation process. From a lawyer's perspective, an advantage of negotiation over other forms of dispute resolution is that …

Self-Help: Extrajudicial Rights, Privileges And Remedies In Contemporary American Society, Douglas I. Brandon, Melinda L. Cooper, Jeremy H. Greshin, Alvin L. Harris, James M. Head, Jr., Keith R. Jacques, Lea Wiggins

Vanderbilt Law Review

This Special Project examines the myriad forms of self-help currently available to persons in American society. It groups and discusses notable self-help rights, privileges, and remedies under topical classifications that parallel traditional jurisprudential categories. Parts H through VI of the Special Project sketch the legally fashioned contours and explore the legal, social, and political consequences of self-help methods in tort law, criminal law and law enforcement, commercial transactions, landlord-tenant relations,and family law matters. Part VII explores the attorney's role in the development and implementation of curative self-help procedures such as mediation. Special Project concludes by examining the function, mechanisms, and …