Digital Commons Network^™

Fighting Arbitration Clauses In Franchisor Contracts, Jean R. Sternlight

Scholarly Works

Purporting to serve justice, efficiency, and freedom of contract, business interests are increasingly attempting to use binding arbitration clauses to secure unfair advantages over unknowing parties. Courts seemingly have been eager to enforce arbitration clauses that appear in franchise agreements. This article discusses courts’ enforcement of arbitration clauses, undermining protections to the franchisee, and how franchisees can create a more level playing field.

Protecting Franchisees From Abusive Arbitration Clauses, Jean R. Sternlight

Scholarly Works

This article sets out a number of legal arguments that franchisees can potentially use to defeat arbitration clauses that seek to accomplish ends that would not be permissible in litigation. Drawing from decisions protecting consumers and employees from unfair arbitration clauses, as well as from opinions in the franchise context, this article analyzes arguments that can be based on the U.S. Constitution, federal statutes, state statutes, and common law. By way of this analysis, it suggests that some courts are misapplying arbitration precedents and preemption arguments to support decisions that allow franchisors to effectively exempt themselves from legislation and even …

Is Binding Arbitration A Form Of Adr?: An Argument That The Term "Adr" Has Begun To Outlive Its Usefulness, Jean R. Sternlight

Scholarly Works

Professor Frank Sander has, for many years, been one of the most prescient commentators on the alternative dispute resolution ("ADR") movement. His 1976 Pound Conference speech has been identified by many as marking the birth of the modern ADR phenomena. That speech, which compared some of the pros and cons of litigation and an array of other dispute resolution processes, has been summarized as proposing the concept of the "multi-door courthouse." In contrast, Professor Sander's more recent and very interesting review of the present and future of ADR makes little attempt to distinguish between mediation and binding arbitration, the two …

The Autumn Of The Patriarch: The Pinochet Extradition Debacle And Beyond- Human Rights Clauses Compared To Traditional Derivative Protections Such As Double Criminality, Christopher L. Blakesley

Scholarly Works

This article will analyze human rights law to see whether it plays any role in the protection of the individual in the face of international extradition or other international cooperation in criminal matters. I will consider two approaches to extradition and human rights that seem to be vying for position in the world arena and the tension between them. The first is to apply the traditional statist exemptions to extradition, which sometimes have enabled a few human rights protections. This approach is based on the concept that states are the only subjects of international law. Thus, it is state's interests, …

The Tenth Amendment Among The Shadows: On Reading The Constitution In Plato's Cave, Jay S. Bybee

Scholarly Works

In Plato's Allegory of the Cave, he describes a cavernous chamber in which men are imprisoned. Although a large fire lights the cave, the prisoners cannot see the light source. Instead, they can only make out figures that dance and parade in front of them illuminated by the fire. The prisoners cannot even see the figures directly, only their shadows. Everything that the prisoners know about reality they have learned from the distorted shapes of the shadows dancing about the cave's walls. Socrates wonders, if a prisoner were suddenly freed and could see the objects themselves and not merely their …

Developments In Communication Ethics: The Ethics Commission, Code Of Professional Responsibilities, Credo For Ethical Communication, Kenneth E. Andersen

Journal of the Association for Communication Administration

This article looks at the state of communication ethics study and practice in the U.S. Ethics has always been a dimension of communication theory and practice. But the definition of its role and the awareness of and emphasis given to it varies from communication theorist to theorist and practitioner to practitioner. These variations can be traced from the rhetorical theories and practices of ancient Greece to the present. Similarly, the approach to and emphasis given ethics as an element in communication has varied in the communication field's teaching and research. The academic units historically identified as speech, speech communication, communication …

Employment Trends In Communication Arts And Sciences, Michael E. Smilowitz, Philip Emmert

Journal of the Association for Communication Administration

This article looks at the career opportunities for communication arts and sciences graduates in the U.S. As graduate students planning academic careers seek counsel for their programs of study, there is a need for good answers regarding career opportunities. Departments planning curricula and seeking to fill position vacancies likewise require reliable information regarding the directions in which their disciplines are moving. The analysis for curricula development, program growth, and career choices requires more than anecdotal evidence. Incidental conversations at conventions and the occasional reviews of the "state of the art" are helpful, but not adequate for considering concerns as important …

Communication Laboratories: Genesis, Assessment, Challenges, Kathleen Ellis, Pamela S. Shockley-Zalabak, Michael Z. Hackman

Journal of the Association for Communication Administration

The purpose of this article is to briefly describe (a) a rationale for creating communication laboratories; (b) communication laboratory curricula and approaches; (c) development strategies for communication laboratories; (d) communication laboratory assessment, accountability, and research opportunities; and (e) communication laboratory issues and challenges. The article concludes with a list of guiding principles that lead to the successful implementation of communication laboratories. The communication laboratory is one educational strategy for addressing the issue of communication competency in the 21st century. Communication laboratories across the United States exist at schools such as Columbus State University, East Tennessee State University, Golden West College, …

A Legal Giant Is Dead, Henry Paul Monaghan

Faculty Scholarship

Herbert Wechsler died at his home on April 26, 2000. Two days later, the New York Times obituary's headline announced the passing of a "legal giant," a richly merited appellation. Herbert Wechsler was, I believe, the greatest academic figure in the history of Columbia Law School. At the height of his career, Herb stood at the top of three academic fields: criminal law, constitutional law, and federal jurisdiction. His achievements were, moreover, not confined to Columbia, the faculty of which he joined in 1933 after having served as law clerk to Justice Harlan Fiske Stone. From 1944 to 1946, Herb …

Executives And Hedging: The Fragile Legal Foundation Of Incentive Compatibility, David M. Schizer

Faculty Scholarship

Options are granted to executives to inspire better performance by tying pay to the employer's stock price. Yet this incentive rationale no longer holds if executives can use the derivatives market to simulate a sale of their options, a practice known as hedging. This Article evaluates the effectiveness of existing legal constraints on hedging by executives, including limits derived from contract, securities and tax law. Although investment bankers have been searching for ways around these constraints, the bottom line is that, at least for now, executives are unable to hedge option grants: While contractual limits are rare, the securities law …

De La Pantalla Al Papel: El Cine Mudo Y La Narrativa Vanguardista Española, Maria Montoya

Dissertations, Theses, and Capstone Projects

The purpose of this interdisciplinary study is to document and explain the influence of silent film on the vanguard works of three outstanding Spanish prose writers—Francisco Ayala, Antonio Espina, and Benjamin Jarnes—during the 1920s, as well as on essays of theirs that appeared in Revista de Occidente and La Gaceta Literaria. Three aspects of film of particular importance to the analysis of these writers' works are: movies as a social phenomenon, Hollywood film stars, and the influence of film on their narrative techniques.

An examination of the main cultural and film magazines of that decade, as well as of …

Clients Don't Take Sabbaticals: The Indispensable In-House Clinic And The Teaching Of Empathy, Philip Genty

Faculty Scholarship

After almost 12 years in law teaching, I approached my first sabbatical with a single goal: to free myself from cases. At that time my clinic clients were primarily parents who were involved in family court proceedings in which they were trying to preserve their parental rights and get their children out of the foster care system. Such cases are emotionally draining for both the client and the lawyer. Thus, while I welcomed the chance to have a semester off from teaching and attending faculty and committee meetings, I felt that I needed a break from the demands of lawyering …

(Baby) M Is For The Many Things: Why I Start With Baby M, Carol Sanger

Faculty Scholarship

For several years now I have begun my first-year contracts course with the 1988 New Jersey Supreme Court case In the Matter of Baby M. In this essay, I want to explain why. I offer the explanation in the spirit of modest proselytizing, recognizing that many of us already have a favored method or manner into the course: some introductory questions we pose before leaping into (or over) the introductions already provided by the editors of the many excellent casebooks available. But I have found that Baby M works extremely well in ways that others may want to consider. …

Economic Reasoning And The Framing Of Contract Law: Sale Of An Asset Of Uncertain Value, Victor P. Goldberg

Faculty Scholarship

By analyzing two American contract law decisions, the paper illustrates the usefulness of economic analysis in framing the inquiry. The cases have a common feature, unrecognized by the courts: they both deal with the production and transfer of information regarding the sale of an asset of uncertain value. One involves the combination of an option and a lockup to encourage the buyer to produce information. The other involves contingent compensation to convey the seller's assurance of the quality of the assets. Once this is recognized, the outcomes are straightforward.

After The "Social Meaning Turn": Implications For Research Design And Methods Of Proof In Contemporary Criminal Law Policy Analysis, Bernard E. Harcourt

Faculty Scholarship

The social norm movement in criminal justice has received a lot of attention in academic and public policy circles. This essay critically examines social norm writings and explores some of the implications for methods of proof and research design in the social sciences. In the process, the essay offers an alternative theoretical approach. This alternative focuses on the multiple ways in which the social meaning of practices (such as juvenile gun possession, gang membership, or disorderly conduct) and the social meaning of policing techniques (such as juvenile snitching policies, youth curfews, or order-maintenance policing) may shape us as contemporary subjects …

Can A Defendant Be Charged With Offenses Under Two Or More Articles Of The Ictr Statute Based On The Same Act(S)? If So, Can S/He Be Convicted Of Two Or More Crimes Based On The Same Act(S)?, Michael Ashkouri

War Crimes Memoranda

No abstract provided.

Does A Defendant Have Unlimited Entitlement To Be Represented By The Attorney Of His/Her Choice, When The Attorney Is Appointed By The Trial Chamber?, Tami L. Roberts

War Crimes Memoranda

No abstract provided.

Imputing The Intent Of A Superior To A Subordinate, April Yates

War Crimes Memoranda

No abstract provided.

On What Grounds Does A Defendant Have The Right To Substitute Counsel?, Lesly J. Michelot Ii

War Crimes Memoranda

No abstract provided.

Standard Of Competence For Attorneys Who Represent Defendants Before The International Criminal Tribunal For Rwanda, Melanie Popper

War Crimes Memoranda

No abstract provided.

Superior Responsibility, Loik S. Henderson

War Crimes Memoranda

No abstract provided.

The Concept Of Freedom Of Expression In Prosecutions For Crimes Based On Expressive Acts, Anna M. Pohl

War Crimes Memoranda

No abstract provided.

Trade Secrets And Mutual Investments, Gillian L. Lester, Eric L. Talley

Faculty Scholarship

This paper employs an optimal contracting framework to study the question of how courts should adjudicate disputes over valuable trade secrets (such as customer lists). We focus principally on contexts where trade secrets are formed endogenously, through specific, non-contractible investments that could potentially come from either employers or employees (or both). Within such contexts, we argue, an "optimal" trade secret law diverges in many important respects from existing doctrine. In particular, an optimal doctrine would (1) expressly consider the parties' relative skills at making value enhancing investments rather than the mere existence of a valuable informational asset; (2) tend to …

The Direction Of Corporate Law: The Scholars' Perspective, John C. Coffee Jr., Richard A. Booth, R. Franklin Balotti, David C. Mcbride, Edward P. Welch

Faculty Scholarship

MR. BALOTTI: Good afternoon. My name is Frank Balotti and I've been asked to be the moderator for this afternoon's program. And one of the privileges that I get is to introduce the panel and to call them up to speak in some kind of order, I hope. And I hope that you and the audience will participate by asking questions towards the end of our panel and get involved in the discussion which we hope to promote.

The topic for this afternoon's panel is a scholar's approach to corporation law. And we are fortunate to have some scholars with …

Ratcheting Labor Standards: Regulation For Continuous Improvement In The Global Workplace, Charles F. Sabel, Dara O'Rourke, Archon Fung

Faculty Scholarship

It is a brute fact of contemporary globalization – unmistakable as activists and journalists catalog scandal after scandal – that the very transformations making possible higher quality, cheaper products often lead to unacceptable conditions of work: brutal use of child labor, dangerous environments, punishingly long days, starvation wages, discrimination, suppression of expression and association. In all quarters, the question is not whether to address these conditions, but how.

That question, however, admits no easy answers. Globalization itself has freed capital from many of its former constraints – national workplace standards, collective bargaining, and supervisory state agencies and courts – designed …

Europe's Evolving Regulatory Strategy For Gmos – The Issue Of Consistency With Wto Law: Of Kine And Brine, Robert Howse, Petros C. Mavroidis

Faculty Scholarship

This Essay deals with one question: If challenged, how would regulatory restrictions on genetically modified organisms ("GMOs") be judged by a World Trade Organization ("WTO") adjudicating body. Many of the controversies about the effect of WTO law on domestic regulation have been influenced by the view that the law as it stands may well impede the ability of governments to regulate new and uncertain risks to health and the environment. The result in the Beef Hormones case ("Hormones case") is often cited for this proposition. In this Essay we aim to show that, contrary to an increasingly widespread popular …

Tribes As Rich Nations, Raymond Cross

Faculty Law Review Articles

This article critiques the contemporary doctrine of Indian tribal self-determination thirty years after its inception in President Richard M. Nixon's famed 1970 Indian Message to Congress.

The first part focuses on the three most prominent strategies for tribal self-determination: 1) tribal strategy that seeks to "morph" their inherent and reserved sovereign powers into tribal regulatory powers that are effective throughout Indian Country; 2) tribal strategy that seeks to develop and assert economic sovereignty over their lands, resources, and commercial relationships as a means of revitalizing Indian Country; and 3) tribal strategy that seeks to reassert traditional cultural and religious beliefs …

Part 6: The State Of Government, Regional Studies Institute, Old Dominion University

State of the Region Reports: Hampton Roads

(First Paragraph) With- count them- nearly 100 governmental units in the cities and counties that comprise Hampton Roads, are our citizens being served efficiently and responsibly?

Part 10: The State Of Health, Regional Studies Institute, Old Dominion University

State of the Region Reports: Hampton Roads

As a region, Hampton Roads has worked hard to increase the number and quality of its medical facilities. The merger of Sentara and Tidewater Health Care sealed Sentara's position as the region's largest health care provider and forced it to rise to the challenge of offering excellent, efficient medical care. It has proven itself by attaining a ranking of 6th among all of the health networks in the nation, its third consecutive year in the top 10. Only two other health care systems have been named to the top 10 list for this many years. In addition, Sentara Norfolk General …

Conserving Ecosystems Through The Secretarial Order On Tribal Rights, Sandra B. Zellmer

Faculty Law Review Articles

No abstract provided.