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Articles 1 - 30 of 256
Full-Text Articles in Law
The New Yellow Dog Contract: Mandatory Arbitration Agreements And Collective Action Waivers In The Aftermath Of Epic Systems, Eric Lundy
Nevada Law Journal Forum
Since the 1980s, the Supreme Court has consistently found arbitration agreements in employment contracts to be enforceable, citing a strong national policy favoring arbitration. This line of cases came to its apogee in 2018 with Epic Systems Corp. v. Lewis. The Court held that the statutory right to engage in concerted activities for the purpose of mutual aid or protection did not confer upon employees the right to bring class actions against their employer when they had signed an arbitration agreement with a collective action waiver. While the Court’s decision was widely criticized in the academic community, it sent a …
Alternative Evidence Rules For Arbitration, Henry Zhuhao Wang
Alternative Evidence Rules For Arbitration, Henry Zhuhao Wang
Nevada Law Journal
No abstract provided.
Political Polarization: Psychological Explanations And Potential Solutions, Jennifer K. Robbennolt
Political Polarization: Psychological Explanations And Potential Solutions, Jennifer K. Robbennolt
Nevada Law Journal
No abstract provided.
Community Accountability, M. Eve Hanan, Lydia Nussbaum
Community Accountability, M. Eve Hanan, Lydia Nussbaum
Scholarly Works
This Essay takes a close look at how the idea of community accountability is used in current transformative and restorative justice efforts, situating the concept within the history of delegalization, or a collection of different efforts to reclaim conflict resolution and public safety from the state. In fact, these efforts to reclaim the authority and means of redressing harm from legal systems may track earlier efforts to reclaim dispute resolution from the state. In Part I, we situate both transformative and restorative justice movements in the history of delegalization while noting essential differences between the objectives of these two reform …
In-Person Or Via Technology?: Drawing On Psychology To Choose And Design Dispute Resolution Processes, Jean R. Sternlight, Jennifer K. Robbennolt
In-Person Or Via Technology?: Drawing On Psychology To Choose And Design Dispute Resolution Processes, Jean R. Sternlight, Jennifer K. Robbennolt
Scholarly Works
Covid-19 fostered a remote technology boom in the world of dispute resolution. Pre-pandemic, adoption of technical innovation in dispute resolution was slow moving. Some attorneys, courts, arbitrators, mediators and others did use technology, including telephone, e-mail, text, or videoconferences, or more ambitious online dispute resolution (ODR). But, to the chagrin of technology advocates, many conducted most dispute resolution largely in-person. The pandemic effectively put the emerging technological efforts on steroids. Even the most technologically challenged quickly began to replace in-person dispute resolution with videoconferencing, texting, and other technology. Courts throughout the world canceled all or most in-person trials, hearings, conferences, …
Carrie Menkel-Meadow: Leading Us Toward Justice And Peace, Jean R. Sternlight
Carrie Menkel-Meadow: Leading Us Toward Justice And Peace, Jean R. Sternlight
Scholarly Works
This Essay explores how Carrie Menkel-Meadow's life and work have both highlighted the path of "And"-showing and explaining that it is not only possible but also desirable to seek justice as well as peace, to be both activist and neutral. Of course, tensions will remain. Regarding particular issues in specific moments we all must decide which path we can and should take. Which activism is best, and which goes too far? With whom can we or should we negotiate, and when should we instead say, "I can't negotiate with this person or group"? When should we talk and listen, and …
Justice In A Brave New World?, Jean R. Sternlight
Justice In A Brave New World?, Jean R. Sternlight
Scholarly Works
As science fiction has become reality, we should consider the implications of our new technologies for our system of justice. In addition to DNA, we are now regularly using cameras, geo-tracking, facial recognition software, brain scans, computers, and much more to discern and record our physical and mental surroundings. Existing technology and more we cannot yet imagine will increasingly take the place of often unreliable evidence, such as that provided by eyewitnesses. Yet, we have given far too little thought as to how these advances should impact our civil and criminal dispute resolution systems.
Historically, many justice systems have emphasized …
Pouring A Little Psychological Cold Water On Online Dispute Resolution, Jean R. Sternlight
Pouring A Little Psychological Cold Water On Online Dispute Resolution, Jean R. Sternlight
Scholarly Works
This Article examines the strengths and weaknesses of ODR (online dispute resolution) from a psychological perspective. It makes five main points:
(1) The phrase ODR is too broad to be useful. This phrase encompasses many different kinds of technology (computer, phone, video, mechanical pencil), many different kinds of dispute resolution (litigation, negotiation, arbitration, mediation), disputes arising in many different contexts (consumer, family, property, tax, employment, etc.), and many different roles (technology as neutral, technology as aide to neutral, technology as aide to disputant, etc.). In order to consider whether and when ODR can be most useful we will need to …
Adr, Dynamic (In)Justice, And Achieving Access: A Foreclosure Crisis Case Study, Lydia Nussbaum
Adr, Dynamic (In)Justice, And Achieving Access: A Foreclosure Crisis Case Study, Lydia Nussbaum
Scholarly Works
This Article proceeds in two parts. Part I argues for a dynamic, rather than fixed, conception of access to justice. It then explores how ADR processes, when placed in this dynamic framework, can create new forms of injustice and intensify preexisting ones. Part II presents a case study from the foreclosure crisis to illustrate how the features of ADR processes are especially well suited to respond to dynamic injustices. It further demonstrates how ADR design must evolve to respond to the dynamic system of (in)justice in which ADR processes operate.
Mandatory Arbitration Stymies Progress Towards Justice In Employment Law: Where To, #Metoo?, Jean R. Sternlight
Mandatory Arbitration Stymies Progress Towards Justice In Employment Law: Where To, #Metoo?, Jean R. Sternlight
Scholarly Works
Today our employment law provides workers with far more protection than once existed with respect to hiring, firing, salary, and workplace conditions. Despite these gains, continued progress towards justice is currently in jeopardy due to companies’ imposition of mandatory arbitration on their employees. By denying their employees access to court, companies are causing employment law to stultify. This impacts all employees, but particularly harms the most vulnerable and oppressed members of our society for whom legal evolution is most important. If companies can continue to use mandatory arbitration to eradicate access to court, where judges are potentially influenced by social …
Mediator Burnout, Lydia Nussbaum
Mediator Burnout, Lydia Nussbaum
Scholarly Works
Being a mediator is hard work Mediators must make meaningful connections with individuals without over-stepping bounds of impartiality, manage emotions without becoming emotionally invested, and empower decision-making without undermining self-determination. Decades of research into occupational stress, also known as "burnout," indicates that mediators not only are susceptible to burnout, but also that the symptoms of burnout undermine fundamental principles of quality mediation. For example, a burned-out mediator may exhibit narrow and uncreative thinking, diminished capacity to regulate emotions, compromised decision-making, and deficits in attention and memory.
The prospect of mediator burnout not only threatens the quality of mediation, but it …
Mediation: An Unlikely Villain, Thomas O. Main
Mediation: An Unlikely Villain, Thomas O. Main
Scholarly Works
Professor Main argues that the modem ADR movement (and mediation in particular), rather than some (other) ideology, beget the pleading and summary judgment standards that exemplify contemporary practice and procedure in the fourth era in the history of American civil procedure. The other key reforms of the fourth era-the vanishing trial, the embrace of ADR, judicial case management and the pursuit of settlement by any means necessary-are more obviously tied to the modem ADR movement. Blame for all of the key fourth era reforms is thus traceable to the modern ADR movement. This, in turn, matters because it is generally …
The Metaphysics Of Arbitration: A Reply To Hensler And Khatam, Hiro N. Aragaki
The Metaphysics Of Arbitration: A Reply To Hensler And Khatam, Hiro N. Aragaki
Nevada Law Journal
No abstract provided.
Realizing Restorative Justice: Legal Rules And Standards For School Discipline Reform, Lydia Nussbaum
Realizing Restorative Justice: Legal Rules And Standards For School Discipline Reform, Lydia Nussbaum
Scholarly Works
Zero-tolerance school disciplinary policies stunt the future of school children across the United States. These policies, enshrined in state law, prescribe automatic and mandatory suspension, expulsion, and arrest for infractions ranging from minor to serious. Researchers find that zero-tolerance policies disproportionately affect low-income, minority children and correlate with poor academic achievement, high drop-out rates, disaffection and alienation, and greater contact with the criminal justice system, a phenomenon christened the "School-to-Prison Pipeline."
A promising replacement for this punitive disciplinary regime derives from restorative justice theory and, using a variety of different legal interventions, reform advocates and lawmakers have tried to institute …
Evolution Of The Arbitration Forum As A Response To Mandatory Arbitration, Teresa J. Verges
Evolution Of The Arbitration Forum As A Response To Mandatory Arbitration, Teresa J. Verges
Nevada Law Journal
No abstract provided.
Response: Public Litigation, Private Arbitration?, David L. Noll
Response: Public Litigation, Private Arbitration?, David L. Noll
Nevada Law Journal
No abstract provided.
Arbitration's Dark Shadow, Benjamin P. Edwards
Arbitration's Dark Shadow, Benjamin P. Edwards
Nevada Law Journal
No abstract provided.
Arbitration, What Is It Good For?, Thomas O. Main
Arbitration, What Is It Good For?, Thomas O. Main
Nevada Law Journal
No abstract provided.
The Blurring Of The Public/Private Distrinction Or The Collapse Of A Category? The Story Of Investment Arbitration, Guillermo J. Garcia Sanchez
The Blurring Of The Public/Private Distrinction Or The Collapse Of A Category? The Story Of Investment Arbitration, Guillermo J. Garcia Sanchez
Nevada Law Journal
No abstract provided.
"Arbitration Schmarbitration": Examining The Benefits And Frustrations Of Defining The Process, Jean R. Sternlight
"Arbitration Schmarbitration": Examining The Benefits And Frustrations Of Defining The Process, Jean R. Sternlight
Nevada Law Journal
No abstract provided.
Re-Inventing Arbitration: How Expanding The Scope Of Arbitration Is Re-Shaping Its Form And Blurring The Line Between Private And Public Adjudication, Deborah R. Hensler, Damira Khatam
Re-Inventing Arbitration: How Expanding The Scope Of Arbitration Is Re-Shaping Its Form And Blurring The Line Between Private And Public Adjudication, Deborah R. Hensler, Damira Khatam
Nevada Law Journal
No abstract provided.
Reconciling Fault Lines In Arbitration And Redefining Arbitration Through The Broader Lens Of Procedure, Imre S. Szalai
Reconciling Fault Lines In Arbitration And Redefining Arbitration Through The Broader Lens Of Procedure, Imre S. Szalai
Nevada Law Journal
No abstract provided.
A Review Of Nevada Patron Dispute Decisions, Mark Lerner, Emily Cunningham
A Review Of Nevada Patron Dispute Decisions, Mark Lerner, Emily Cunningham
UNLV Gaming Law Journal
No abstract provided.
Realizing Dispute Resolution: Meeting The Challenges Of Legal Realism Through Mediation, Robert Rubinson
Realizing Dispute Resolution: Meeting The Challenges Of Legal Realism Through Mediation, Robert Rubinson
Nevada Law Journal
No abstract provided.
Washoe Cty. Sch. Dist. V. White, 133 Nev. Adv. Op. 43 (June 29, 2017), Margarita Elias
Washoe Cty. Sch. Dist. V. White, 133 Nev. Adv. Op. 43 (June 29, 2017), Margarita Elias
Nevada Supreme Court Summaries
Kara White (“White”) was terminated from her role as elementary school principal after the school district’s decision to terminate her was affirmed in an arbitration hearing. White filed a motion to vacate the award in district court. The district court granted White’s motion, holding that (1) the arbitrator exceeded his authority, (2) the arbitrator manifestly disregarded NRS 391.3116, and (3) the award was arbitrary and capricious. The school district appealed to the Supreme Court of Nevada, which reversed the district court’s ruling.
Trial And Error: Legislating Adr For Medical Malpractice Reform, Lydia Nussbaum
Trial And Error: Legislating Adr For Medical Malpractice Reform, Lydia Nussbaum
Scholarly Works
The U.S. healthcare system has a problem: hundreds of thousands of people die each year, and over a million are injured, by medical mistakes that could have been avoided. Furthermore, over ninety percent of these patients and their families never learn of the errors or receive redress. This problem persists, despite myriad reforms to the medical malpractice system, because of lawmakers' dominant focus on reducing providers' liability insurance costs. Reform objectives are beginning to change, however, and the vehicle for implementing these changes is alternative dispute resolution ("ADR"). Historically, legislatures deployed ADR to curb malpractice litigation and restrict patients' access …
Notes From A Quiet Corner: User Concerns About Reinsurance Arbitration – And Attendant Lessons For Selection Of Dispute Resolution Forums And Methods, Jeffrey W. Stempel
Notes From A Quiet Corner: User Concerns About Reinsurance Arbitration – And Attendant Lessons For Selection Of Dispute Resolution Forums And Methods, Jeffrey W. Stempel
Scholarly Works
Arbitration between insurers and reinsurers – those who insure insurance companies – should logically run as smoothly as any arbitration process. Like the traditional commercial arbitration that drove enactment of the Federal Arbitration Act, reinsurance arbitration involves experienced actors in a confined industry in which the parties should be constructively aware of the rules, norms, customs and practices of the industry. But in spite of this, reinsurance arbitration experiences consistent problems of which the participants complain. This article reviews the complaints and exams possible solutions – including the possibility of arbitrating less and litigating more. Although these possible solutions would …
The Three Phases Of The Supreme Court’S Arbitration Jurisprudence: Empowering The Already-Empowered, Martin H. Malin
The Three Phases Of The Supreme Court’S Arbitration Jurisprudence: Empowering The Already-Empowered, Martin H. Malin
Nevada Law Journal
No abstract provided.
Magistrate Judges, Settlement, And Procedural Justice, Nancy A. Welsh
Magistrate Judges, Settlement, And Procedural Justice, Nancy A. Welsh
Nevada Law Journal
No abstract provided.
Principal Investments V. Harrison, 132 Nev. Adv. Op. 2 (Jan. 14, 2016), Katherine Maher
Principal Investments V. Harrison, 132 Nev. Adv. Op. 2 (Jan. 14, 2016), Katherine Maher
Nevada Supreme Court Summaries
The Court held unless the arbitration agreement commits the question to the arbitrator with “clear and unmistakable” language, a litigation-conduct waiver is presumptively for the court to decide because it is a waiver based on active litigation in court. Thus, the district court judge in this case did not err in addressing whether the moving party waived its right to arbitrate, instead of referring the question to the arbitrator.