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Hospital Peer Review Standards And Due Process: Moving From Tort Doctrine Toward Contract Principles Based On Clinical Practice Guidelines, Katharine A. Van Tassel 2018 Concordia University School of Law, Boise

Hospital Peer Review Standards And Due Process: Moving From Tort Doctrine Toward Contract Principles Based On Clinical Practice Guidelines, Katharine A. Van Tassel

Katharine Van Tassel

This Article proposes a solution to the problems associated with the current use of vague standards in peer review. This Article will examine the proposal that medical staffs switch from ad hoc judicial decision-making to rule-making. This switch will allow medical staffs to abandon the troublesome practice of applying vague 'standard of care' measures ex post facto. In its stead, express contractual terminology could be adopted, such as 'expectations of performance,' which incorporates specifically chosen and uniquely tailored clinical practice guidelines ('CPGs') directly into the medical staff by-laws. Describing the expectations of physician performance in express contractual terms enables physicians ...


Amending Maine's Plain Language Law To Ensure Complete Disclosure To Consumers Signing Arbitration Contracts, Andrew R. Sarapas 2018 University of Maine School of Law

Amending Maine's Plain Language Law To Ensure Complete Disclosure To Consumers Signing Arbitration Contracts, Andrew R. Sarapas

Maine Law Review

Arbitration has been defined as an informal procedure used by disputants to resolve their differences in a forum other than a court of law. By agreeing to arbitration, the parties submit their disputes to selected arbitrators, whose reasoning and final decisions or awards supplant the judgment of the established judicial tribunals. Further, the decisions of arbitrators are usually binding and enforceable in courts. Although arbitration has been lauded for being less expensive and time-consuming than litigation, consumers arbitrating disputes with large companies may not be playing on a level field. It is important, however, to distinguish arbitration from mediation. Arbitrators ...


Hong Kong: Mediation And The Future Of Dispute Resolution, Nadja ALEXANDER 2018 Singapore Management University

Hong Kong: Mediation And The Future Of Dispute Resolution, Nadja Alexander

Research Collection School Of Law

This chapter tells a story about mediation in Hong Kong - its past, present, and future. It is a story that reflects the internationality of Hong Kong as a place where East meets West, and the energy of the new is challenged by the wisdom of the old. It also sits comfortably with the notion of mediation itself, a conflict resolution process that appears both timeless and timely. This chapter explores the development of Hong Kong mediation and focuses on the regulatory landscape of mediation and common mediation practice areas. Finally, it identifies trends in mediation and the related area of ...


Newsroom: Court As Classroom 03-01-2018, Roger Williams University School of Law 2018 Roger Williams University

Newsroom: Court As Classroom 03-01-2018, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


From Imperial To International Law: Protecting Foreign Expectations In The Early United States, Daniel Hulsebosch 2018 NYU School of Law

From Imperial To International Law: Protecting Foreign Expectations In The Early United States, Daniel Hulsebosch

New York University Public Law and Legal Theory Working Papers

This Essay argues that several principles associated with modern international investment law and dispute resolution arose in the wake of the American Revolution, as the revolutionaries and Britons sought to restructure trade relations, previously regulated by imperial law, under new treaties and the law of nations. They negotiated such problems as the currency in which international debts would be paid; the ability of foreign creditors pursue domestic collection remedies; whether creditors had to exhaust those remedies before their nation could resort to international arbitration; and the form of state-state arbitration of private disputes. The specific setting of these negotiations—the ...


Rethinking The Law Of Legal Negotiation: Confidentiality Under Federal Rule Of Evidence 408 And Related State Laws, Richard C. Reuben 2018 University of Missouri School of Law

Rethinking The Law Of Legal Negotiation: Confidentiality Under Federal Rule Of Evidence 408 And Related State Laws, Richard C. Reuben

Boston College Law Review

Federal Rule of Evidence 408 and related state laws are among the most important rules to implement the national policy favoring the settlement of legal disputes. These rules bar the introduction of statements made during negotiations leading to the resolution of legal disputes. However, comprehensive analysis of the rule’s text, doctrinal history, and modern context demonstrates that the rule no longer meets its noble goals. Rather, the rule has evolved textually from a remarkably narrow and complex categorical presumption of inadmissibility with limited exceptions to a simpler rule that gives courts considerable deference to admit such evidence when they ...


The Elimination Of Child “Custody” Litigation: Using Business Branding Techniques To Transform Social Behavior, Elena B. Langan 2018 Nova Southeastern University, Shepard Broad College of Law

The Elimination Of Child “Custody” Litigation: Using Business Branding Techniques To Transform Social Behavior, Elena B. Langan

Elena B. Langan

This article discusses how rebranding principles, already being used to alter social behavior in other non-consumer contexts, could be utilized to accomplish the legislative goal to reduce litigation as well as diminish animosity in custody cases. Part II of this article discusses the impetus for a transformation in the way parents view custody disputes. Part III discusses basic branding principles and how companies establish a brand and can successfully change their branding. Part IV explores the evolution of the current custody brand, identifies eight states that have eliminated “custody” and, in some cases, “visitation” from their vernacular, and discusses, in ...


Dispute System Design And Bias In Dispute Resolution, Lisa Blomgren Amsler, Alexander B. Avtgis, Michael Scott Jackman 2018 Indiana University School of Public and Environmental Affairs

Dispute System Design And Bias In Dispute Resolution, Lisa Blomgren Amsler, Alexander B. Avtgis, Michael Scott Jackman

SMU Law Review

This article examines the role of mediator race and gender in perceptions of procedural justice as measure of accountability and representative bureaucracy in a national mediation program for complaints of employment discrimination at a large federal organization, the United States Postal Service. Mediation represents a forum of accountability in which employees may hold an employer accountable for violating federal law prohibiting forms of employment discrimination, in this case, race discrimination, sex discrimination, and sexual harassment. Representative bureaucracy theory suggests passive or symbolic representation when the demographics of public officials should mirror those of the public they serve. Some research suggests ...


Do Alternative Dispute Resolution Procedures Disadvantage Women And Minorities?, Charles Craver 2018 George Washington University Law School

Do Alternative Dispute Resolution Procedures Disadvantage Women And Minorities?, Charles Craver

SMU Law Review

When different legal controversies arise, parties frequently employ alternative dispute resolution procedures to resolve them. Yet some members of ethnic minority groups and women may seek judicial proceedings out of a concern that their ethnicity or gender may undermine their ability to achieve beneficial bargaining outcomes through ADR. This article addresses the real and perceived challenges of ethnic minorities and women in ADR. It draws upon decades of research into dispute resolution bargaining processes to illustrate that most traits associated with ethnicity and gender are irrelevant today with respect to ADR. When persons are taught even minimally about the bargaining ...


The Lost Promise Of Arbitration, Sarah Rudolph Cole 2018 Moritz College of Law, The Ohio State University

The Lost Promise Of Arbitration, Sarah Rudolph Cole

SMU Law Review

This article disputes the notion that arbitration, a historically informal process, tends to disadvantage minority disputants or provide them with quick decisions tainted by prejudice. Responding to Richard Delgado’s seminal work, Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, this article attempts to shed greater light on the benefits of modern arbitration for minority disputants. Although still capable of improvement, arbitration may well provide greater protections to minority disputants than does litigation. Since Delgado first wrote his article, the use of arbitration as a primary dispute resolution mechanism has increased dramatically, particularly among businesses and ...


Contextual Analysis In Arbitration, Pat K. Chew 2018 University of Pittsburgh School of Law

Contextual Analysis In Arbitration, Pat K. Chew

SMU Law Review

The arbitration process is embedded in a much larger context than the four walls in which the arbitration occurs. Exploring and studying that context—including the arbitral institution, the arbitrators, each party, the arbitration process, and the broader cultural and political environment—inform what actually occurs and to what extent one party may have inherent advantages over the other. This article illustrates this contextual analysis in two diverse settings: domestic employment arbitrations and international trade arbitrations. These analyses reveal one party’s advantages over the other, which are explained in part by market and cultural forces in which these arbitrations ...


Does Alternative Dispute Resolution Facilitate Prejudice And Bias? We Still Don’T Know, Gilat J. Bachar, Deborah R. Hensler 2018 Stanford University

Does Alternative Dispute Resolution Facilitate Prejudice And Bias? We Still Don’T Know, Gilat J. Bachar, Deborah R. Hensler

SMU Law Review

By the time Professor Richard Delgado and his colleagues wrote their seminal article on the risk of alternative dispute resolution (ADR) facilitating prejudice, ADR programs were well-established in the United States, supported by legislative and court mandates, private contracts, and U.S. Supreme Court decisions. Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution and Delgado’s subsequent review article, ADR and the Dispossessed: Recent Books About the Deformalization Movement, were cited hundreds of times by scholars and practitioners but did little to stop the movement to substitute mediation, arbitration, and other dispute resolution procedures for public ...


Critical Procedure: Adr And The Justices’ “Second Wave” Constriction Of Court Access And Claim Development, Eric K. Yamamoto 2018 University of Hawaii School of Law

Critical Procedure: Adr And The Justices’ “Second Wave” Constriction Of Court Access And Claim Development, Eric K. Yamamoto

SMU Law Review

Expansive alternative dispute resolution (ADR) was the centerpiece of efficiency-based procedural reforms in the 1980s and early 1990s. ADR and other reforms collectively altered the litigation landscape, at times for the better. Yet some scholars raised early questions about ADR’s effect on systemic litigation fairness and the ability of the disenfranchised to assert and maintain claims in court. Amid second wave procedural changes, commencing around the mid-2000s, a Justice Scalia-led majority significantly expanded the grasp of compelled, private, and individualized arbitration. Under the shroud of efficiency, that Court majority imposed those second wave changes by judicial fiat, bypassing formal ...


Do You Believe In Magic?: Self-Determination And Procedural Justice Meet Inequality In Court-Connected Mediation, Nancy Welsh 2018 Texas A&M University School of Law

Do You Believe In Magic?: Self-Determination And Procedural Justice Meet Inequality In Court-Connected Mediation, Nancy Welsh

SMU Law Review

Proponents of the “contemporary mediation movement” promised that parties would be able to exercise self-determination as they participated in mediation. When courts began to mandate the use of mediation, commentators raised doubts about the vitality of self-determination. Though these commentators also suggested a wide variety of reforms, few of their proposals have gained widespread adoption in the courts.

Ensuring the procedural justice of mediation represents another means to ensure self-determination. If mediation provides parties with the opportunity to exercise voice, helps them demonstrate that they have considered what each other had to say, and treats them in an even-handed and ...


Negotiating While Female, Andrea Kupfer Schneider 2018 Marquette University Law School

Negotiating While Female, Andrea Kupfer Schneider

SMU Law Review

Why are women paid less than men? Prevailing ethos conveniently blames the woman and her alleged inability to negotiate. This article argues that blaming women for any lack of negotiation skills or efforts is inaccurate and that prevailing perceptions about women and negotiation are in-deed myths. The first myth is that women do not negotiate. While this is true in some lab studies and among younger women, more recent workplace data calls this platitude into question. The second myth is that women should avoid negotiations because of potential backlash. Although women in leadership do face an ongoing challenge to be ...


Implicit Bias And Prejudice In Mediation, Carol Izumi 2018 University of California Hastings College of Law

Implicit Bias And Prejudice In Mediation, Carol Izumi

SMU Law Review

Mediators aspire and endeavor to meet their ethical duty of “neutrality” in mediation. Yet their ability to actually conduct mediations without bias, prejudice, or favoritism toward any party is extraordinarily difficult, if not impossible. Research shows that unconscious mental processes involving stereotypes and attitudes affect our judgments, perceptions, and behavior toward others. Implicit bias, the automatic association of stereotypes and attitudes with social groups, may produce discriminatory responses toward parties despite a mediator’s best efforts at creating an outwardly even-handed process. Even the most well-intentioned and egalitarian mediators must actively engage in bias reduction strategies to mitigate prejudice in ...


Reconsidering Prejudice In Alternative Dispute Resolution For Black Work Matters, Michael Z. Green 2018 Texas A & M University School of Law

Reconsidering Prejudice In Alternative Dispute Resolution For Black Work Matters, Michael Z. Green

SMU Law Review

In the 1985 foundational article Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, Richard Delgado and his co-authors identified major concerns with the growing use of alternative dispute resolution (ADR) to resolve disputes involving people of color. The seminal findings from that article highlighted the power differentials exacerbated by informal dispute resolution, and the article contributed immediately to a surge of robust critiques of the increasing use of alternative dispute resolution for those most vulnerable in our society.

More than thirty years after the Delgado article, a community of respected and prominent ADR and discrimination scholars ...


Alternative Dispute Resolution: A Critical Reconsideration, Richard Delgado 2018 University of Alabama School of Law

Alternative Dispute Resolution: A Critical Reconsideration, Richard Delgado

SMU Law Review

No abstract provided.


Recent Developments Concerning Similar Fact Evidence In Singapore: Pushing The Boundaries Of Admissibility – Pp V Ranjit Singh Gill Menjeet Singh [2017] 3 Slr 66; Micheal Anak Garing V Pp [2017] 1 Slr 748, Eunice CHUA 2018 Singapore Management University

Recent Developments Concerning Similar Fact Evidence In Singapore: Pushing The Boundaries Of Admissibility – Pp V Ranjit Singh Gill Menjeet Singh [2017] 3 Slr 66; Micheal Anak Garing V Pp [2017] 1 Slr 748, Eunice Chua

Research Collection School Of Law

This piece addressestwo recent local decisions on similar fact evidence that demonstratethe court’s difficulties with reconciling the provisions of the Evidence Actwith a more flexible approach that can be developed through the common law.These two cases extend the basis for admitting similar fact evidence beyond ss11(b), 14 and 15 of the Evidence Act.The application of the common law balancing test comparing prejudicial effectand probative value has also been broadened to consider factors such as the timingof the objection to the evidence and whether a co-accused wishes to rely on thesimilar fact evidence. Yet, the cases do ...


Cultivating A Culture Of Environmental And Natural Resources Collaboration In Utah, Danya Rumore 2018 S.J. Quinney College of Law, University of Utah

Cultivating A Culture Of Environmental And Natural Resources Collaboration In Utah, Danya Rumore

Environmental Dispute Resolution Program

Unhealthy air quality. Growing demands for water in an arid state. Conflicts over public lands and how those lands should be managed. These are just a few environmental and natural resources challenges here in Utah that we hear “keep people up at night.” Such challenges are indeed daunting, and they will not be easily solved. However, in every challenge there is an opportunity. And when it comes to environmental and natural resources challenges, there is a powerful opportunity for people to work together to find mutually beneficial solutions that are, as consensus building guru Larry Susskind puts it, “fair, efficient ...


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