Law Commons^™

The Place Of Court-Connected Mediation In A Democratic Justice System, Nancy A. Welsh

Nancy Welsh

A justice system, and the processes located within it, ought to deliver justice. That seems simple enough. But, of course, delivering justice is never so simple. Justice and the systems that serve it are the creatures of context.

This Article considers mediation as just one innovation within the much larger evolution of the judicial system of the United States. First, this Article outlines how the values of democratic governance undergird our traditional picture of the American justice system, presumably because the invocation of such values helps the system to deliver something that will be respected by the nation’s citizens as …

Looking Down The Road Less Traveled: Challenges To Persuading The Legal Profession To Define Problems More Humanistically, Nancy A. Welsh

Nancy Welsh

This essay will focus on three factors that may help to explain why it seems to be so difficult for many lawyers to escape the confines of a narrow, legalistic framing of issues-or more poetically, why they may be predisposed against looking down "the road less traveled by." These factors should be taken into account as challenges to the widespread adoption of innovative, more humanistic approaches to lawyering. First, the essay will turn to research regarding the psyches and psychological needs of the people who choose to attend law school and become lawyers. Second, the essay will consider what is …

Is That All There Is? "The Problem" In Court-Oriented Mediation, Leonard L. Riskin, Nancy A. Welsh

Nancy Welsh

The alternative process of mediation is now well-institutionalized and widely (though not universally) perceived to save time and money and satisfy lawyers and parties. However, the process has failed to meet important aspirations of its early proponents and certain expectations and needs of one-shot players. In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and other ordinary civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues …

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

Nancy Welsh

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 …

Enforcement Of Foreign Arbitration Agreements And Awards: Application Of The New York Convention In The United States, Louis Del Duca, Nancy A. Welsh

Nancy Welsh

Internationalc ommercial arbitrationp rovides customized and efficient resolution for disputes arising out of transnational commerce. When arbitration occurs in states that have ratified the New York Convention, the process also offers enforceable outcomes even in states other than the one where the arbitration occurred. The United States ratified the New York Convention in 1970, and its courts overwhelmingly enforce both arbitration agreements and arbitral awards. There are exceptions, however, and American courts require the use of certain procedures.

This Article provides a brief survey of American courts' recognition and enforcement of foreign arbitration agreements and arbitral awards. It begins by …

Dueling Grants: Reimagining Cafa's Jurisdictional Provisions, Tanya Pierce

Tanya Pierce

Part I of the article discusses the relevant policies underlying CAFA and Rule 23. Part II briefly outlines the more straightforward operation of CAFA jurisdiction in pre-certification and post-successful certification situations before explaining the provisions in CAFA that have given rise to considerable confusion after courts deny class certification. Part III critiques the arguments made by courts and scholars in support of and against continuing jurisdiction. It then suggests an approach that is most consistent with the statute, in light of all of its relevant provisions and their corresponding limitations, and that furthers prudential concerns underlying Rule 23 and CAFA …

Reforming Property Law To Address Devastating Land Loss, Thomas W. Mitchell

Thomas W. Mitchell

Tenancy-in-common ownership represents the most widespread form of common ownership of real property in the United States. Such ownership under the default rules also represents the most unstable ownership of real property in this country. Thousands of tenancy-in-common property owners, including members of many poor and minority families, have lost their commonly-owned property due to court-ordered, forced partition sales as well as much of their real estate wealth associated with such ownership as a result of such sales. Though some scholars and the media have highlighted how thousands of African-Americans have lost an untold amount of property and substantial real …

From Federalism To Intersystemic Governance: The Changing Nature Of Modern Jurisdiction, Robert B. Ahdieh

Robert B. Ahdieh

At heart, this introductory essay aspires to encourage scholars who write in widely divergent areas, yet share a focus on the changing nature of jurisdiction, to engage one another more closely. From Jackson's study of "convergence, resistance, and engagement" among courts, Kingsbury's study of "global administrative law," and Bermann's analysis of "transatlantic regulatory cooperation," to Resnik's evaluation of "trans-local networks," Weiser's account of "cooperative federalism" in telecommunications law, and Thompson's concept of "collaborative corporate governance," a related set of questions is ultimately at stake: How ought we understand the reach of any given decision-maker's jurisdiction? What are the implications of …

Can Nfl Players Obtain Judicial Review Of Arbitration Decisions On The Merits When A Typical Hourly Union Worker Cannot Obtain This Unusual Court Access?, Michael Z. Green, Kyle T. Carney

Michael Z. Green

Several recent court cases, brought on behalf of National Football League (NFL) players by their union, the NFL Players Association (NFLPA), have increased media and public attention to the challenges of labor arbitrator decisions in federal courts. The Supreme Court has established a body of federal common law that places a high premium on deferring to labor arbitrator decisions and counseling against judges deciding the merits of disputes covered by a collective bargaining agreement (CBA). A recent trend suggests federal judges have ignored this body of law and analyzed the merits of labor arbitration decisions in the NFL setting.

NFL …

Rethinking Civil Rico: The Vexing Problem Of Causation In Fraud-Based Claims Under 18 U.S.C. § 1962(C), Randy D. Gordon

Randy D. Gordon

To recover in a private action, the three-part structure of RICO demands proof of particularized crimes at two levels and civil standing to sue for those crimes. The interpretation and application of the standing requirement — which arises from the statute’s mandate that compensable injuries be caused “by reason of” acts of racketeering — have bedeviled courts and litigants for decades. Recent developments in class action law have exacerbated the problem. As more and more courts have rendered it nearly impossible to certify classes asserting state-law claims, class plaintiffs have turned to uniform federal laws like RICO. But civil RICO …

Only One Kick At The Cat: A Contextual Rubric For Evaluating Res Judicata And Collateral Estoppel In International Commercial Arbitration, Randy D. Gordon

Randy D. Gordon

Arbitration is the preferred method of resolving disputes arising out of international commercial transactions. It stands outside national legal systems because contracting parties agree in advance that they want neutral arbitrators — not local judges and juries — deciding who is at fault when a commercial relationship breaks down. But arbitration nevertheless butts up against litigation from time to time, often because one party attempts to arbitrate a matter that has been litigated to conclusion or vice versa. This article examines — through a contextual approach — questions of preclusion that thereby arise and ultimately suggests that res judicata and …

Aggregation On Defendants' Terms: Bristol-Myers Squibb And The Federalization Of Mass-Tort Litigation, Andrew D. Bradt, D. Theodore Rave

Andrew D. Bradt

Although it is destined for the personal jurisdiction canon, the Supreme Court’s eight-to-one decision in Bristol-Myers Squibb Co. v. Superior Court does little to clarify that notoriously hazy doctrine. It does, however, significantly alter the balance of power in complex litigation. Bristol-Myers is a landmark case because it makes both mass-tort class actions and mass joinders impracticable in almost any state court outside of the defendant’s home states. With federal courts already hostile to class actions, plaintiffs who want to aggregate their claims will have to do so on the defendant’s terms: either on the defendant’s home turf or in …

Delegating Procedure, Matthew A. Shapiro

Matthew Shapiro

Police Misconduct, Video Recording, And Procedural Barriers To Rights Enforcement, Howard M. Wasserman

Howard M Wasserman

The story of police reform and of "policing the police" has become the story of video and video evidence, and "record everything to know the truth" has become the singular mantra. Video, both police-created and citizen-created, has become the singular tool for ensuring police accountability, reforming law enforcement, and enforcing the rights of victims of police misconduct. This Article explores procedural problems surrounding the use of video recording and video evidence to counter police misconduct, hold individual officers and governments accountable, and reform departmental policies, regulations, and practices. It considers four issues: 1) the mistaken belief that video can "speak …

Class Action Settlement Residue And Cy Pres Awards: Emerging Problems And Practical Solutions, Wilber H. Boies, Latonia Haney Keith

Latonia Haney Keith

Class action settlements often present the court and parties with the practical problem of disposing of residual funds that remain after distributions to class members. The cy pres doctrine is a well-recognized device that permits the court to designate suitable organizations to receive such funds. Recently, academics, judges, practitioners, and professional objectors have mounted a multi-faceted attack on this device, ranging from constitutional and ethical concerns to appeals challenging specific awards. This Article first describes the use of cy pres awards in class action settlements and explains why the constitutional, statutory, and ethical objections are unfounded. This Article then addresses …

Jurisdiction In The Trump Era, Scott Dodson

Scott Dodson

Personal Jurisdiction And Aliens, Scott Dodson, William Dodge

Scott Dodson

Personal Jurisdiction And Aggregation, Scott Dodson

Scott Dodson