Law Commons^™

Using Odr Platforms To Level The Playing Field: Improving Pro Se Litigation Through Odr Design, J.J. Prescott

Book Chapters

Court-connected ODR has already shown itself capable of dramatically improving access to justice by eliminating barriers rooted in the fact that courts traditionally resolve disputes only during certain hours, in particular physical places, and only through face-to-face proceedings. Given the centrality of courthouses to our system of justice, too many Americans have discovered their rights are too difficult or costly to exercise. As court-connected ODR systems spread, offering more inclusive types of dispute resolution services, people will soon find themselves with the law and the courts at their fingertips. But robust access to justice requires more than just raw, low-cost …

Fair Play: Notes On The Algorithmic Soccer Referee, Michael J. Madison

Articles

The soccer referee stands in for a judge. Soccer’s Video Assistant Referee (“VAR”) system stands in for algorithms that augment human deciders. Fair play stands in for justice. They are combined and set in a polycentric system of governance, with implications for designing, administering, and assessing human-machine combinations.

The Adjudication Business, Pamela K. Bookman

Faculty Scholarship

The recent proliferation of international commercial courts around the world is changing the global business of adjudication. The rise of these courts also challenges the traditional accounts of the competitive relationship between and among courts and arbitral tribunals for this business. London and New York have long been considered the forum of choice in international commercial contracts—whether parties opt for litigation or arbitration. More recently, however, English-language-friendly international commercial courts have been established in China (2018), Singapore (2015), Qatar (2009), Dubai (2004), the Netherlands (2019), Germany (2018), France (2010), and beyond.

The emerging scholarship addressing these new courts tends to …

Justice As Harmony: The Distinct Resonance Of Chief Justice Beverley Mclachlin's Juridical Genius, Marcus Moore

All Faculty Publications

Chief Justice McLachlin’s juridical work has earned special praise, but what specifically distinguishes it among the work of other leading jurists has proven elusive for lawyers and social scientists to identify. My experience as a law clerk to McLachlin CJC suggested a distinct approach never comprehensively articulated, but intuitively well-known and widely-emulated among those in her sphere of influence. Drawing on the Chief Justice’s public lectures—where she often explained and offered deeper reflection on the McLachlin Court’s defining jurisprudence—I make the case in this article that at the heart of that approach is a quality best described as the pursuit …

Introduction: Canada's Chief Justice: Beverley Mclachlin's Legacy Of Law And Leadership, Marcus Moore

All Faculty Publications

Summarizes the legacy of law and leadership of Beverley McLachlin, the longest-serving Chief Justice of the Supreme Court of Canada (2000-2017), and first female Chief Justice.

Corporate Law Doctrine And The Legacy Of American Legal Realism, Edward B. Rock

All Faculty Scholarship

In this contribution to a symposium on "Legal Realism and Legal Doctrine," I examine the role that jurisprudence plays in corporate law doctrine. Through an examination of paired cases from the United States and United Kingdom, I offer a case study of the contrasting influence on corporate law judging of American Legal Realism versus traditional U.K. Doctrinalism.

Specialist judges in both systems, aided by specialist lawyers, clearly identify and understand the core policy issues involved in a dispute and arrive at sensible results. Adjusting for differences in background law and institutions, it seems likely that the disputes would ultimately be …

The Normative Legitimacy Of International Courts, Nienke Grossman

All Faculty Scholarship

This Article’s objective is to spark discussion about the standards by which we judge international courts. Traditional justifications for the authority of international courts are based on outmoded assumptions of their role and impact. State consent and procedural fairness to litigants are insufficient to ground the legitimacy of institutions that may adjudicate the international rights and duties of nonlitigants, deeply affect the interests of nonlitigating stakeholders, and shape the law prospectively. These realities mandate a new approach to the legitimacy of international courts. This Article presents alternative or additional approaches for justifying the authority of international courts rooted in both …

The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen

Articles

This Article starts with a puzzle: Why is the doctrinal approach to “proximate cause” so resilient despite longstanding criticism? Proximate cause is a particularly extreme example of doctrine that limps along despite near universal consensus that it cannot actually determine legal outcomes. Why doesn’t that widely recognized indeterminacy disable proximate cause as a decision-making device? To address this puzzle, I pick up a cue from the legal realists, a group of skeptical lawyers, law professors, and judges, who, in the 1920s and 1930s, compared legal doctrine to ritual magic. I take that comparison seriously, perhaps more seriously, and definitely in …

Examining The International Judicial Function: International Courts As Dispute Resolvers, Anna Spain

Publications

This article examines the judicial function of international courts by considering both what it is and what it ought to be. The article identifies and describes two distinct functions - dispute settlement and peace promotion - and explores the tensions that exist in pursuing these two aims. It then introduces a third way of understanding the international judicial function that respects international courts’ traditional role as dispute settlers while allowing for their more engaged and proactive function as peacemakers. This third approach conceptualizes that the role of international courts is to resolve disputes. Doing so requires understanding courts as entities …

The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh

All Faculty Scholarship

‘Common law intellectual property’ refers to a set of judge-made legal regimes that create exclusionary entitlements in different kinds of intangibles. Principally the creation of courts, many of these regimes are older than their statutory counterparts and continue to co-exist with them. Surprisingly though, intellectual property scholarship has paid scant attention to the nuanced law-making mechanisms and techniques that these regimes employ to navigate through several of intellectual property law’s substantive and structural problems. Common law intellectual property regimes employ a process of rule development that this Article calls ‘pragmatic incrementalism’. It involves the use of pragmatic and minimalist techniques …

Stipulating The Law, Gary S. Lawson

Faculty Scholarship

In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court decided important questions of structural constitutionalism on the assumption, shared by all of the parties, that members of the Securities and Exchange Commission are not removable at will by the President. Four Justices strongly challenged the majority’s willingness to accept what amounts to a stipulation by the parties on a controlling issue of law. As a general matter, the American legal system does not allow parties to stipulate to legal conclusions, though it welcomes and encourages stipulations to matters of fact. I argue that one ought to …

Regulatory Adjudication, Marcia L. Mccormick

All Faculty Scholarship

Calls for increased regulation are flying fast and furious these days. We use regulation in the United States to prevent harm that various kinds of activities might cause and also to create positive external benefits that those activities could yield, but might not without incentives. Most regulatory programs in the United States provide a blend of measures designed to create these positive external benefits, promote good practices in the industry, prevent harms, and provide those harmed with remedies. At a time in which we contemplate new ways to regulate to deal with the crises of the day and prevent the …

Integration Matters: Rethinking The Architecture Of International Dispute Resolution, Anna Spain

Publications

International law promotes global peace and security by providing mechanisms for the pacific settlement of international disputes. This Article examines these mechanisms and their place in the architecture of the international dispute resolution ("IDR") system. The Article identifies three core deficiencies of the IDR system that limit its effectiveness and capacity. First, the international legal system has prioritized the development of adjudication over other forms of dispute resolution; the judicialization of international disputes and the proliferation of courts and tribunals evidence this. However, adjudication is limited in its capacity to resolve disputes that involve non-state parties and extra-legal issues. This …

Refocusing Away From Rules Reform And Devoting More Attention To The Deciders, Jeffrey W. Stempel

Scholarly Works

The issue of judicial competence and integrity is particularly troubling in the wake of Caperton v. A.T. Massey Coal Co., where the U.S. Supreme Court vacated a state supreme court decision in which a justice—who had received at least $3 million in campaign support from a litigant—cast the deciding vote to relieve the litigant of a liability award of $50 million ($82 million with interest). The Court reached this result, one I view as compelled by common sense, through a 5-4 vote. The dissenters, led by Chief Justice Roberts and Justice Scalia, minimized the danger of biased judging presented by …

Mining Regulation And Takings, L. Thomas Galloway

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

15 pages.

Sources Of Water Iv: Tribal Water Rights, John E. Echohawk

Moving the West's Water to New Uses: Winners and Losers (Summer Conference, June 6-8)

10 pages.

Contains references.

Pitfalls Of Public Policy: The Case Of Arbitration Agreements, Jeffrey W. Stempel

Scholarly Works

As the juxtaposition of these quotations suggests, judges have long held disparate views on the legitimacy and value of “public policy” considerations as a basis for legal decision making. The popular notion posits that Justice Holmes and legal realists carried the day, making public policy analysis an ordinary part of the adjudication process. The story, of course, is more complex than this legal version of Don Quixote. Many judges and lawyers, including Justice Holmes in other writings, continued to speak of adjudication in more formalist and positivist terms, with most laypersons in apparent agreement. Judge Burroughs' view of public policy …

Unresolved Issues In Federal Reserved Rights, Michael D. White

Western Water Law in Transition (Summer Conference, June 3-5)

12 pages.

Administering Water Rights: The Permit System, Lawrence J. Wolfe

Western Water Law in Transition (Summer Conference, June 3-5)

69 pages.

Contains references.

Administering Water Rights: The Colorado System, Raymond L. Petros

Western Water Law in Transition (Summer Conference, June 3-5)

140 pages (includes illustrations and maps).

Contains bibliography.

Negotiation As A Means Of Quantifying Indian Water Rights, Joseph R. Membrino

The Federal Impact on State Water Rights (Summer Conference, June 11-13)

88 pages.

Contains attachments.