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Prohibiting Good Faith Reports Under The Uniform Mediation Act: Keeping The Adjudication Camel Out Of The Mediation Tent, Carol L. Izumi, Homer C. La Rue

Journal of Dispute Resolution

This symposium article examines a narrow slice of the Uniform Mediation Act - the prohibition on mediator communication to judges about a party's good faith participation or "problem" behavior in mediation.

Introduction, David A. Hoffman

Journal of Dispute Resolution

My introduction to the issues that the Uniform Mediation Act seeks to resolve occurred about a dozen years ago when a senior partner at Hill & Barlow, the Boston law firm where I practiced for 17 years, came to me with a question. He wanted to know whether he could recommend mediation as a safe process for discussing some delicate tax issues that had arisen during the breakup of a business partnership. Evidently the partners had taken some aggressive positions on their partnership tax returns, and one of the big issues in the dissolution of the partnership was the allocation …

Dancing With The One That Brung Us - Why The Texas Adr Community Has Declined To Embrace The Uma, Brian D. Shannon

Journal of Dispute Resolution

I readily acknowledge that the UMA is a bold and noble project, and it is certainly the result of substantial effort and compromise. Indeed, I largely concur with the sentiment of Philip Harter that "[tihe UMA is the product of heroic effort that brought together many interests and perspectives to thrash out a workable framework for mediation." That being said, however, much of the Texas mediation community, of which I am a part, has largely opposed enactment of the UMA's framework for our state. As I have written previously, the Alternative Dispute Resolution Section of the State Bar of Texas …

Centuries Of Contract Common Law Can't Be All Wrong: Why The Uma's Exception To Mediation Confidentiality In Enforcement Proceedings Should Be Embraced And Broadened, Peter Robinson

Journal of Dispute Resolution

The National Conference of Commissioners on Uniform State Laws and House of Delegates of the American Bar Association recently approved the Uniform Mediation Act ("UMA") with an eye toward unifying the law of mediation confidentiality in the United States. Soon, numerous states and other organizations will consider modifying statutes, court rules, or professional standards to conform to the UMA. One of the important aspects of mediation confidentiality is how it applies when enforcing a mediated agreement.' In some jurisdictions, mediation confidentiality interferes with the application of contract law when enforcing a mediated agreement to produce absurd results. This article will …

Uma And The Uncitral Model Rule: An Emerging Consensus On Mediation And Conciliation, The, Jernej Sekolec, Michael B. Getty

Journal of Dispute Resolution

In this article, we describe how these two efforts have come together to forge an international consensus on mediation and conciliation. In Part I, we look at how some of the different ways that domestic nationals treat the confidentiality of conciliation communications. The disparity of these treatments leads to considerable uncertainty among parties to a conciliation. In Part II, we note the essential features of the UNCITRAL Model Law, and how it addresses this uncertainty through model rules that will harmonize international standards among adopting nations, at least on core issues, while at the same time preserving the flexibility that …

Silent Treatment: Removing The Class Action From The Plaintiff's Toolbox Without Ever Saying A Word - Bazzle V. Green Tree Fin. Corp., The, Andrea Lockridge

Journal of Dispute Resolution

A motion for class certification is often a pivotal point in a lawsuit, playing a determinative role throughout the course of the litigation. Plaintiffs use the class action as a tool to consolidate common claims against a defendant, bypassing the expensive process of bringing suit individually. 2 Defendants hotly contest certification of the class, seeking to avoid the ramifications of a judgment which reflects the cumulative losses of the multitude. This casenote addresses the effects of allowing an arbitration clause that is silent as to class-wide arbitration to preclude the plaintiffs' option to bring suit as a class, and the …

Pre-Dispute Mandatory Arbitration Agreements And Title Vii: Promoting Efficiency While Protecting Employee Rights - Eeoc V. Luce, Forward, Hamilton & (And) Scripps, Steven S. Poindexter

Journal of Dispute Resolution

While the United States Supreme Court has repeatedly held that claims based on statutory rights may be vindicated by arbitration, the Court has yet to determine the validity of a pre-dispute mandatory arbitration agreement ("MAA") that covers Title VII of the Civil Rights Act of 1964 ("Title VII"). The United States Court of Appeals for the Ninth Circuit, contrary to every other district court of appeals to have considered the matter, has held that Title VII claims may not be subjected to arbitration under an MAA. The instant case once again addresses the question of whether the Ninth Circuit will …

Regaining Control Through Digital Rights Management (Drm): What's In Store For The Music Industry?, Gregory J. Romania

Theses

This paper, as part of the final requirement for the completion of a Master of Science in Information Technology at the Rochester Institute of Technology, will examine the current state of digital media content and its inherent problems with regard to rendering and distribution. Discussions will focus on the protection and sales of digitalized intellectual property through Digital Rights Management (DRM) while also concentrating on how these technologies can be employed to acquire copyright protection. Though much of the discussion may apply to a wide range of media types, e.g. - movies, software and digital books, the primary focus will …

Chinese Cellular Telecommunications In The Past And The 21st Century, Hao Xu

Theses

Cellular telecommunication technology is one of the hottest topics of the last two decades. The annual rate of user growth is more than 30 percent. It began with the first generation (1G) networks and bloomed with second generation (2G) of cellular technologies. New third generation cellular (3G) technologies aim at offering high-speed, superior-quality information service to mobile subscribers. [2]

The Chinese cellular market is developing with unbelievable speed. China launched its first cellular network in 1987. At the end of 2002, it was the biggest wireless market in the world, with more than 200 million subscribers. [56] Technologies used in …

Best Practices In Implementing Operational Controls Of Iso 14001 Environmental Management Systems Into Small And Medium Businesses, Kuldeep Khalsa

Theses

Studies show that many small and medium businesses (SMBs) that have implemented environmental management systems (EMSs) and got certified to the ISO 14001 Environmental Management Standard experienced obstacles along the way. For SMBs the standards appear unnecessarily bureaucratic, and represent a way of working that fits poorly into their organizational cultures and decision-making structures of small companies. Studies also show that environmental management systems such as ISO 14001 provide a framework for organizations that wish to effectively manage their environmental affairs. Implementing an EMS that conforms to the ISO 14001 standard helps businesses integrate environmental values into their operations.

This …

Retribution For Rats: Cooperation, Punishment, And Atonement, Michael A. Simons

Vanderbilt Law Review

To mobsters, he is a "rat"; to drug dealers, a "snitch." To school children, he is a "tattletale"; to corporate executives, a "whistle- blower." To cops, he is an "informant"; to prosecutors, a "cooperator." By whatever name he is known, the person who betrays his associates to the authorities is almost universally reviled. In movies, on television, in literature, the cooperator embodies all that society holds in contempt: he is disloyal, deceitful, greedy, selfish, and weak. The cooperator, though, has long been a mainstay of our criminal justice system. For centuries, criminal defendants have received leniency in return for testimony …

Corrective Justice In Contract Law: Is There A Case For Punitive Damages?, Curtis Bridgeman

Vanderbilt Law Review

Twentieth-century American legal theory has been dominated by utilitarian and economic approaches. As a result, scholarly analyses of contract and tort law have focused on the public effects of the resolution of private disputes. But in the last twenty years or so justice has undergone a renaissance as so-called corrective-justice theorists have tried to shift the discussion in private law back to the relationships between individual parties. Tort law has been a particularly fertile ground for corrective-justice theorists, and a lively debate has developed about what the best corrective-justice account of tort law would look like.

By contrast, comparatively little …

Imsa 2003 Profile, Office Of College And Academic Counseling

IMSA Profile

No abstract provided.

Avian Population Trends Within The Evolving Agricultural Landscape Of The Eastern And Central United States, Michael T. Murphy

Biology Faculty Publications and Presentations

State-level Breeding Bird Survey (1980-1998) and U.S. Department of Agriculture statistics were used to test the hypothesis that changes in agricultural land use within the eastern and central U.S. have driven population trends of grassland and shrub habitat birds over the past two decades. The degree to which population trends differed between grassland and shrub habitats was evaluated with respect to migratory and nesting behavior. Grassland birds declined significantly between 1980 and 1999, but, on average, shrub habitat species did not. Grassland-breeding, long-distance migrants exhibited the strongest negative trends. Most species (78%; n = 63) exhibited at least one significant …

Blinded By Bioterrorism: Public Health And Liberty In The 21st Century, George J. Annas

Faculty Scholarship

In Blindness, Nobel Prize laureate Jos6 Saramago chronicles the quarantining of the first victims of a plague of blindness.1 We meet many people who become blind in Saramago's novel, including an opthamologist, a one-eyed man with an eye patch, and a man born blind. Saramago reminds us that we are all blind in one way or another, and that there are many things about ourselves and our society that we can't or won't see. The quarantine itself turns out to be isolating, inhumane, and degrading; the interred blind being portrayed by themselves and others as pigs, dogs, and "lame crabs." …

The Right To Health And The Nevirapine Case In South Africa, George J. Annas

Faculty Scholarship

Thanks to activists in South Africa, the right to health as a human right has returned to the international stage, just as it was being displaced by economists who see health through the prism of a globalized economy and by politicians who see it as an issue of national security or charity. The current post-apartheid debate in South Africa is not about race but about health, and in this context, the court victory by AIDS activists in the nevirapine case has been termed not only, as stated in one British newspaper, “the greatest defeat for [President Thabo] Mbeki's government” but …

Hipaa Regulations: A New Era Of Medical-Record Privacy?, George J. Annas

Faculty Scholarship

The new privacy regulations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) become effective April 14, 2003. This article outlines the implications of the new policy for practicing physicians. The regulations will affect virtually every physician, because they apply to any health care provider who conducts any business electronically, including billing. The regulations require health care providers to provide patients with a privacy notice that informs them who will have access to their records without their explicit consent and about patients' rights to inspect and amend their own records.

An Exclusive Right To Evoke, Stacey Dogan

Faculty Scholarship

Ten years ago, in White v. Samsung Electronics America, the Ninth Circuit held that a robot violated Vanna White's publicity rights. Since the White decision, the tendency to equate evocation with infringement in trademark and right of publicity cases has only grown. In contrast to this expansionist trend in trademark and right of publicity law, however, courts in recent copyright cases have arguably backed off from a strong right to evoke. This Article identifies these trends and suggests some reasons for concern over an exclusive right to evoke. The author argues that if we wish to preserve a rich commons …

Code Versus The Common Law, Stacey Dogan

Faculty Scholarship

The explosion of peer-to-peer file sharing has forced a reexamination of the essential structure of copyright law in the United States. In a digital, interconnected world, the dispersion of copying and distribution activities makes it more difficult for copyright holders to identify users who derive value from their works. And at least theoretically, the inability to capture such value could ultimately jeopardize the incentive to produce and distribute creative expression.

There is widespread disagreement over what, if anything, should be done about these threats. While suggestions range from copyright abandonment to digital lockup, two of the principal proposals share an …

Does Punishment For "Culpable Indifference" Simply Punish For "Bad Character"? Examining The Requisite Connection Between Mens Rea And Actus Reus, Kenneth Simons

Faculty Scholarship

The conventional mental state or culpability categories recognized in the criminal law are purpose, knowledge, recklessness, and negligence. Should the law also recognize as an additional category some version of "culpable indifference"? Yes, according to a number of scholars; and some courts have also recognized this category, especially in the context of depraved heart murder. Culpable indifference can describe a modestly culpable mental state, sufficient for manslaughter liability (or, with respect to a circumstance element, roughly equivalent in seriousness to cognitive recklessness). It can also identify a more aggravated form of culpability, sufficient for murder (or, with respect to a …

Puppy Love: Bioterrorism, Civil Rights, And Public Health, George J. Annas

Faculty Scholarship

Florida has been the state humorists most like to make fun of since the 2000 presidential election, especially when it comes to politics. And humorists are almost the only commentators who can be counted on to tell us the truth about the state of American politics today. When Californians decided to recall their Governor, for example, Conan O'Brien observed: "Yesterday Arnold Schwarzenegger announced he would run for governor of California. The announcement was good news for Florida residents, who now live in the second-flakiest state in the country."' And when more than 200 people filed to run for Governor, Jay …

Vertical Restraints And Intellectual Property Law: Beyond Antitrust, Michael J. Meurer

Faculty Scholarship

This Article describes how intellectual property (IP) law regulates six types of vertical restraints: restrictions on the field or location of use; restrictions on sharing; control over the frequency of use; restrictions on repair and modification; packaging requirements; and impediments to a buyer's decision to exit its relationship with a seller. There are three reasons to focus on IP oversight of vertical restraints separately from antitrust oversight. First, IP law covers a broader range of vertical restraints. Second, economic analysis of the antitrust-IP conflict focuses mainly on the potential of vertical restraints to exclude downstream competitors. IP doctrines that regulate …

Towards A Legal History Of American Criminal Theory: Culture And Doctrine From Blackstone To The Model Penal Code, Gerald F. Leonard

Faculty Scholarship

Long before the birth of American law, English criminal jurisprudence had firmly established the general proposition that crime required not just a guilty act but a guilty mind. Coke’s maxim to that effect, actus non facit reum nisi mens sit rea, is still frequently deployed by courts and scholars alike. So is the phrase coined by Blackstone to describe that guilty mind: the “vicious will” that must be present for an act to become a crime. In another great maxim, however, Holmes said that “general propositions do not decide concrete cases.” It is not too shocking, then, that these general …

Should The Model Penal Code's Mens Rea Provisions Be Amended?, Kenneth Simons

Faculty Scholarship

The Model Penal Code approach to mens rea was a tremendous advance. The MPC carefully defines a limited number of mens rea terms, firmly establishes element analysis in place of offense analysis, and recognizes that the doctrine of mistake is part and parcel of the basic analysis of mens rea.

However, a revised Code could improve the drafting of the mens rea provisions in a number of respects:

* Clarify how to distinguish result, circumstance, and result elements

* Simplify the definitions of knowledge and purpose

* Perhaps eliminate the category of mens rea as to conduct

* Clarify the …

Pharmacogenomics, Genetic Tests, And Patent-Based Incentives, Michael J. Meurer

Faculty Scholarship

Pharmacogenomics promises to revolutionize medicine by using genetic information to guide drug therapy. Genetic tests will help doctors improve drug safety and efficacy by better matching patients and drugs. This Article evaluates the effectiveness of patent-based incentives to create genetic tests, and the optimal mix of public and private sector pharmacogenomic R&D. Drug patent owners have a strong incentive to develop genetic tests that predict adverse drug reactions and allow them to market drugs that otherwise would be shelved. Incentives are also strong for genetic tests that are created as part of the drug development process. Incentives tend to be …

Bargaining In The Shadow Of Copyright Law After Tasini, Maureen A. O'Rourke

Faculty Scholarship

Copyright law often provides the background rules against which bargaining over rights in works of information takes place. By granting creators of works of authorship certain exclusive rights and providing protection against infringement of those rights, copyright law effectively gives authors bargaining chips to use in negotiations with those who would exploit their works in some way. Generally, however, copyright law does not explicitly address imbalances in bargaining power that affect the division of the surplus between the parties to a copyright license. When the would-be exploiter of the copyrighted work wields some degree of market power or brings significant …

Presidential Power In Transitions, Jack M. Beermann

Faculty Scholarship

The transition between presidencies has long created controversies. Whether the issue is "midnight judges" or "midnight regulations," presidential action at the end of a term has long provoked scrutiny and criticism. Presidents have also raised eyebrows at the beginning of their terms when they assert their authority and try to undo what their predecessor in office left behind. More than one president has taken action aimed specifically at "midnight regulations," such as ordering a freeze on the issuance of new regulations, a review of regulations issued at the end of the prior administration and other similar action. This article looks …

Secret Settlements And Practice Restrictions Aid Lawyer Cartels And Cause Other Harms, David A. Dana, Susan P. Koniak

Faculty Scholarship

In this article, the authors argue that the use of secrecy agreements and practice restrictions in settlement contracts should be prohibited not only by the ethics rules, but also by criminal and civil law. The authors begin by discrediting four arguments that are traditionally employed to support the use of secrecy agreements and practice restrictions. They then argue that the use of secrecy agreements and practice restrictions generate substantial costs, but do not secure any legitimate benefits that could not be attained by other, less costly means. The authors also explain how the problems caused by secrecy agreements and practice …

Who Should Regulate Class Action Lawyers?, Nancy J. Moore

Faculty Scholarship

Ethical issues arise frequently in class action litigation. These issues include conflicts of interest, solicitation, application of the no-contact rule, the reasonableness of attorneys' fees, and the attorney-witness rule. There has been considerable difficulty applying existing rules of conduct to these situations, partly because of confusion regarding the relationship among class counsel, the named class representatives and absent members of the class. Thus as to conflicts of interest - perhaps the most pressing problem facing class action lawyers - it has been said that a "strict reading of the conflict of interest rules in class actions should be tempered, because …

Intimate Affiliation And Democracy: Beyond Marriage?, Linda C. Mcclain

Faculty Scholarship

This article takes up the question: Should family law and policy move beyond marriage? It assesses a spectrum of answers to that question. Rejecting proposals, on the one hand, to shore up traditional marriage, and, on the other, to abolish marriage, it argues that family law and policy should not move wholly beyond marriage, but should support marriage in a way that better fosters greater equality within and among families. The article is part of a symposium on "Marriage, Families, and Democracy," published in 32 Hofstra Law Review 23-421 (2003).