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Dispute Resolution Lessons Gleaned From The Arrest Of Professor Gates And "The Beer Summit", Elayne E. Greenberg 2010 St. John's University - New York

Dispute Resolution Lessons Gleaned From The Arrest Of Professor Gates And "The Beer Summit", Elayne E. Greenberg

Faculty Publications

America's fantasy of a post-racial society was shattered on July 16,2009, when a white police officer arrested Harvard Professor Henry Louis Gates, a well-respected African-American academic, in his own home. Our historical racial fissure was widened. Once again, our thoughts were plagued with tortured images of our system of racialized law enforcement: the torture of Abner Louima, the beating of Rodney King, the killing of Amadou Diallo. Predictably, Americans became further polarized, as they simultaneously blamed and defended responses to racism.

In what was perceived by some as a dramatic and unanticipated turn of events, and perceived by ...


Table Of Contents - Issue 1 , 2010 University of Missouri School of Law

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.


Disputatio: Creeping Legalism As A Declension Myth, Dennis R. Nolan 2010 University of Missouri School of Law

Disputatio: Creeping Legalism As A Declension Myth, Dennis R. Nolan

Journal of Dispute Resolution

The term "creeping legalism," the topic of this symposium, applies to several different developments in labor arbitration. This essay examines each of those developments and explains why that pejorative term misses its mark.


Mediation In Employment And Creeping Legalism: Implications For Dispute Systems Design, Lisa Blomgren Bingham, Susan Summers Raines, Timothy Hedeen, Lisa Marie Napoli 2010 University of Missouri School of Law

Mediation In Employment And Creeping Legalism: Implications For Dispute Systems Design, Lisa Blomgren Bingham, Susan Summers Raines, Timothy Hedeen, Lisa Marie Napoli

Journal of Dispute Resolution

This article will explore the question of creeping legalism in mediation of statutory disputes arising out of employment. First, it will briefly review the issue of creeping legalism in arbitration. Second, it will introduce dispute systems design (DSD). Third, it will review the analogous debate on legalism in mediation in three design contexts: evaluative mediation of employment disputes in the court-connected setting, grievance mediation embedded in the collective bargaining agreement, and transformative mediation of employment disputes in the United States Postal Service's (USPS's) REDRESS program. Most employees do not face a choice among mediation models; instead, they choose ...


Sweet Vindication: The Second Circuit Strikes A Blow To Companies That Use Class-Action Waivers In Arbitration Agreements To Avoid The Law, Samuel E. Buffaloe 2010 University of Missouri School of Law

Sweet Vindication: The Second Circuit Strikes A Blow To Companies That Use Class-Action Waivers In Arbitration Agreements To Avoid The Law, Samuel E. Buffaloe

Journal of Dispute Resolution

Other scholars and courts have concluded that when a class action waiver prevents a plaintiff from vindicating his statutory rights, that waiver should be unenforceable. The U.S. Court of Appeals for the Second Circuit took this approach in In re American Express Merchants' Litigation. The court, however, was careful to point out that these class-action waivers should not be considered unenforceable per se, but that courts must examine each waiver on a case-by-case basis. This note will examine the court's reasoning and will discuss what courts and Congress should do to protect consumers when companies use class-action waivers ...


Brief Of Arbitration Professors As Amici Curiae In Support Of Respondents, At&T Mobility Llc V. Concepcion, 131 S.Ct. 1740 (Supreme Court Of The United States 2011) (No. 09-893), Karen H. Cross 2010 John Marshall Law School Chicago

Brief Of Arbitration Professors As Amici Curiae In Support Of Respondents, At&T Mobility Llc V. Concepcion, 131 S.Ct. 1740 (Supreme Court Of The United States 2011) (No. 09-893), Karen H. Cross

Court Documents and Proposed Legislation

No abstract provided.


All Bound Up With No Place To Go: A Lack Of Individual Alternatives To Binding Arbitration Provisions For Statutory Claims, Matthew Gierse 2010 University of Missouri School of Law

All Bound Up With No Place To Go: A Lack Of Individual Alternatives To Binding Arbitration Provisions For Statutory Claims, Matthew Gierse

Journal of Dispute Resolution

For the greater part of the twentieth century, arbitration has played a large role in resolving disputes between unions representing employees and employers. However, during the past few decades, these employment contracts began to incorporate mandatory arbitration agreements for statutory discrimination claims, with at least one-fifth of all employees presently subject to mandatory arbitration. During this same period, courts began to broaden the ability of employees to waive their right to a judicial forum for statutory claims; Tewolde v. Owens & Minor Distribution is no exception. In 2009, the U.S. Supreme Court ruled for the first time that a union ...


A Legal And Economic Analysis Of The Conflict Of Property Rights On Generic Names: Based On The “Little Sheep” Trademark Dispute, Wei ZHANG, Ming YANG 2010 Singapore Management University

A Legal And Economic Analysis Of The Conflict Of Property Rights On Generic Names: Based On The “Little Sheep” Trademark Dispute, Wei Zhang, Ming Yang

Research Collection School Of Law

自我国2001年修订《商标法》接受了"第二含义理论"——即承认"共用名称"通过使用可以产生显著性,从而得以注册为商标(第11条第2款)——以来,相关司法实践中的争议一直不断,尤其是引起广泛争议的"小肥羊"商标案的发生,使得人们开始担忧,允许"共用名称"注册为商标而给经营者带来的激励,不免引发过度投资,从而导致无效率的竞争和不公平的结果。但是,从"共用名称"之本质的经济分析出发,我们可以发现,允许该标识注册为商标实际上是避免出现"公地灾难"的有效率的做法。另外,商标法上相关制度的设置,也不会产生学者们所担心的不公平的结果。


Implicit Bias And The Illusion Of Mediator Neutrality, Carol L. Izumi 2010 UC Hastings College of the Law

Implicit Bias And The Illusion Of Mediator Neutrality, Carol L. Izumi

Faculty Scholarship

No abstract provided.


Just Negotiation, Rebecca Hollander-Blumoff 2010 Washington University School of Law

Just Negotiation, Rebecca Hollander-Blumoff

Washington University Law Review

This Article argues that the procedural justice—that is, fairness of process—plays a critical and largely unexamined role in legal negotiation, encouraging the acceptance of and adherence to negotiated agreements. An economic focus has dominated prior work on legal negotiation and has largely touted the importance of negotiated outcome rather than process. This Article marshals theoretical support for the role that procedural justice may play in bilateral legal negotiation and supports the theoretical case with empirical data from social psychology. A robust empirical literature has established that procedural justice has a significant effect on individuals’ perceptions of their outcomes ...


The New International Arbitration (Amendment) - A Broader Framework For Interim Relief Or Just A Tune-Up?, Mahdev MOHAN, Eu-Yen Tay 2010 Singapore Management University

The New International Arbitration (Amendment) - A Broader Framework For Interim Relief Or Just A Tune-Up?, Mahdev Mohan, Eu-Yen Tay

2008 Asian Business & Rule of Law initiative

Singapore aspires to retain its place as a trusted arbitration hub for commercial parties all around the world. The recently proposed amendments to the International Arbitration Act seek to bring Singapore closer to meeting international standards in relation to the arbitration procedure. While the initiative should be applauded, those amendments relating to interim measures fall somewhat short of expectations of a new, broader framework of curial assistance in aid of arbitration. This article explores the uncertainties that could arise from the proposed amendments, either because of phrasing or of an omission to embrace the Model Law. It is hoped that ...


My Tree Versus Your Solar Collector Or Your Well Versus My Septic System? -- Exploring Responses To Beneficial But Conflicting Neighboring Uses Of Land, R. Lisle Baker 2010 Boston College Law School

My Tree Versus Your Solar Collector Or Your Well Versus My Septic System? -- Exploring Responses To Beneficial But Conflicting Neighboring Uses Of Land, R. Lisle Baker

Boston College Environmental Affairs Law Review

When one neighbor wants to use his land for a lawful purpose, but the neighbor next door wants to do the same so that their beneficial uses conflict, how might these conflicts be resolved? The conventional law of nuisance offers either a rationale based on fault or a general standard of what is “reasonable,” both of which require litigation to apply to a particular context. This Article suggests that resolving conflicts between neighboring beneficial uses of land would be aided by guidelines which might be grounded in some understandable norms to provide such neighbors with a sense that rough justice ...


Catching The Waive: The Third Circuit Joins The Growing Trend Of Circuit Courts In Voiding A Class-Arbitration Waiver In Homa V. American Express Co., Steven D. Millman 2010 Villanova University Charles Widger School of Law

Catching The Waive: The Third Circuit Joins The Growing Trend Of Circuit Courts In Voiding A Class-Arbitration Waiver In Homa V. American Express Co., Steven D. Millman

Villanova Law Review

No abstract provided.


I Could Have Been A Contender: Summary Jury Trial As A Means To Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation And Early, Consensual Dispute Resolution, Nancy A. Welsh 2010 Penn State Dickinson School of Law

I Could Have Been A Contender: Summary Jury Trial As A Means To Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation And Early, Consensual Dispute Resolution, Nancy A. Welsh

Journal Articles

With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate - or even communicate with and listen to - such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive marginalized ...


Artificial Intelligence: Robots, Avatars And The Demise Of The Human Mediator, David Allen Larson 2010 Mitchell Hamline School of Law

Artificial Intelligence: Robots, Avatars And The Demise Of The Human Mediator, David Allen Larson

Faculty Scholarship

As technology has advanced, many have wondered whether (or simply when) artificial intelligent devices will replace the humans who perform complex, interactive, interpersonal tasks such as dispute resolution. Has science now progressed to the point that artificial intelligence devices can replace human mediators, arbitrators, dispute resolvers and problem solvers? Can humanoid robots, attractive avatars and other relational agents create the requisite level of trust and elicit the truthful, perhaps intimate or painful, disclosures often necessary to resolve a dispute or solve a problem? This article will explore these questions. Regardless of whether the reader is convinced that the demise of ...


The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students To Real World Lawyering, Jean R. Sternlight 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law

The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students To 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 ...


Lawyerless Dispute Resolution: Rethinking A Paradigm, Jean R. Sternlight 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law

Lawyerless Dispute Resolution: Rethinking A Paradigm, Jean R. Sternlight

Scholarly Works

Do participants in mediation and arbitration have attorneys? Do they need them? Although the phenomenon of pro se litigation has received substantial attention in recent years, few commentators or policymakers have focused on these questions. The failure to focus on the possible need for representation in mediation and arbitration is based on an often unstated premise that because ADR processes are purportedly non-adversarial or less adversarial than litigation, disputants need representation less in ADR than they do in litigation. This Article suggests that the failure to focus on the possible need for representation in mediation and arbitration is fundamentally misguided ...


Annual Saltman Lecture: Further Beyond Reason: Emotions, The Core Concerns, And Mindfulness In Negotiation, Leonard L. Riskin 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law

Annual Saltman Lecture: Further Beyond Reason: Emotions, The Core Concerns, And Mindfulness In Negotiation, Leonard L. Riskin

Nevada Law Journal

This article focuses on one particularly common problem: Sometimes people who understand the Core Concerns System, know how to use it, and intend to employ it in a particular negotiation, either fail to do so or fail to do so skillfully; when they review the negotiation, they regret not having used the Core Concerns System, and believe that using it would have produced a better process and outcome. When this occurs, it often results from deficits or faults in the negotiator's awareness.

It follows that a negotiator can enhance his ability to employ the Core Concerns System through improving ...


Using Mindfulness Practice To Work With Emotions, Deborah Calloway 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law

Using Mindfulness Practice To Work With Emotions, Deborah Calloway

Nevada Law Journal

The most important point to understand is that working with and understanding our own emotional reactions is an essential prerequisite to working skillfully with emotionally charged individuals in disputes. Training in “mediation techniques” designed to help us recognize and work with emotions in the mediation and negotiation context will not work unless we have practiced working with our own emotions consistently in our ordinary lives. Otherwise, in the heat of the moment during a negotiation or mediation, we are likely to forget every technique we have learned. Habitual patterns of behavior simply take hold.

This article seeks to provide some ...


Yes, And: Core Concerns, Internal Mindfulness, And External Mindfulness For Emotional Balance, Lie Detection, And Successful Negotiation, Clark Freshman 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law

Yes, And: Core Concerns, Internal Mindfulness, And External Mindfulness For Emotional Balance, Lie Detection, And Successful Negotiation, Clark Freshman

Nevada Law Journal

This article suggests that both parts of Leonard Riskin's latest article and parts of the argument on “core concerns” by Roger Fisher and Dan Shapiro may, with certain individuals in certain circumstances, not work. Indeed, focusing on core concerns may even produce less functional emotions and therefore decrease the chances of an optimal outcome. This article addresses the limitations inherent within the core concerns approach and suggests “external mindfulness” as a complementary skill to check when core concerns help and when other tools, including both internal and external mindfulness, may help as well as--or better than--the core concerns approach ...


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