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Full-Text Articles in Law

C-Drum News, Fall 2016 Oct 2016

C-Drum News, Fall 2016

The C-DRUM News

No abstract provided.


The Three Phases Of The Supreme Court’S Arbitration Jurisprudence: Empowering The Already-Empowered, Martin H. Malin Sep 2016

The Three Phases Of The Supreme Court’S Arbitration Jurisprudence: Empowering The Already-Empowered, Martin H. Malin

Nevada Law Journal

No abstract provided.


Internal Dispute Resolution: The Transformation Of Civil Rights In The Workplace, John M. Lande, Lauren B. Edelman, Howard S. Erlanger Aug 2016

Internal Dispute Resolution: The Transformation Of Civil Rights In The Workplace, John M. Lande, Lauren B. Edelman, Howard S. Erlanger

Lauren Edelman

Many employers create internal procedures for the resolution of discrimination complaints. We examine internal complaint handlers' conceptions of civil rights law and the implications of those conceptions for their approach to dispute resolution. Drawing on interview data, we find that complaint handlers tend to subsume legal rights under managerial interests. They construct civil rights law as a diffuse standard of fairness, consistent with general norms of good management. Although they seek to resolve complaints to restore smooth employment relations, they tend to recast discrimination claims as typical managerial problems. While the assimilation of law into the management realm may extend …


Nelson Mandela As Negotiator: What Can We Learn From Him?, Harold I. Abramson Aug 2016

Nelson Mandela As Negotiator: What Can We Learn From Him?, Harold I. Abramson

Harold I. Abramson

This article considers how “the greatest negotiator of the twentieth century,” Nelson Mandela, approached negotiating the unbanning of the African National Congress (ANC), the dismantling of apartheid, and his own freedom after twenty-seven years of imprisonment. He employed classically good negotiation practices in the face of intense and violent opposition while confined in prison for life. If he could be successful, why cannot lawyers succeed when facing less daunting disputes?This article focuses on the period starting in 1985, when Mandela refused an offer to be released if he would condemn violence, until 1990, when President de Klerk gave his historic …


An Innovative Matrix For Dispute Resolution: The Dubai World Tribunal And The Global Insolvency Crisis, Jayanth K. Krishnan, Harold Koster Jul 2016

An Innovative Matrix For Dispute Resolution: The Dubai World Tribunal And The Global Insolvency Crisis, Jayanth K. Krishnan, Harold Koster

Journal of Dispute Resolution

This study examines a legal experiment that occurred during the height of the global financial crisis. As markets from the United States to Europe to the Global South shook, one country – the United Arab Emirates (U.A.E.) – found itself on the brink of economic collapse. In particular, in 2009 the U.A.E.’s Emirate of Dubai (Emirate) was contemplating defaulting on $60 billion of debt it had amassed. Recognizing that such a default would have cataclysmic reverberations across the globe, Dubai’s governmental leaders turned to a small group of foreign lawyers, judges, accountants, and business consultants for assistance. Working in a …


Introduction: Judicial Education, Dispute Resolution, And The Life Of A Judge: A Conversation With Judge Jeremy Fogel, Director Of The Federal Judicial Center, Jeremy Fogel Hon., S. I. Strong Jul 2016

Introduction: Judicial Education, Dispute Resolution, And The Life Of A Judge: A Conversation With Judge Jeremy Fogel, Director Of The Federal Judicial Center, Jeremy Fogel Hon., S. I. Strong

Journal of Dispute Resolution

In January and June 2016, Judge Jeremy Fogel, Director of the Federal Judicial Center, sat down with Professor S.I. Strong to discuss a variety of issues ranging from the civil rules amendments and the case management process to judicial education, mediation and the role of the Federal Judicial Center. Judge Fogel also gave his views on what lawyers, academics and the public need to know about the federal judiciary and the task of judging, thereby providing important and unique insights into the judicial process.


Dispute Resolution Tools In Patent Infringement Cases: Aoki V. Gilbert, No. 2:11-Cv02787-Tln-Cnd, 2015 Wl 5734626 (E.D. Cal. 2015), Brandon Craig Jul 2016

Dispute Resolution Tools In Patent Infringement Cases: Aoki V. Gilbert, No. 2:11-Cv02787-Tln-Cnd, 2015 Wl 5734626 (E.D. Cal. 2015), Brandon Craig

Journal of Dispute Resolution

While arbitration has become a widely accepted alternative to litigation, the role it should play in patent disputes has been widely debated. Issued by the federal government, patents confer a temporary monopoly on the production, use, and sale of new innovations. The government may have an interest in keeping such disputes out of the private realm of arbitration, at least when the dispute is over the validity of the patent. For other patent issues such as licensing, which is essentially a private contract, arbitration may serve as a useful and cost-effective alternative. Even when arbitration is not warranted, other useful …


Contracts - Jurisdiction - Absent A Strong Showing Of Unreasonableness Or Undue Influence, Parties’ Contractual Selection Of Forum In International Transactions Will Be Valid And Enforceable, Shelley Himel May 2016

Contracts - Jurisdiction - Absent A Strong Showing Of Unreasonableness Or Undue Influence, Parties’ Contractual Selection Of Forum In International Transactions Will Be Valid And Enforceable, Shelley Himel

Georgia Journal of International & Comparative Law

No abstract provided.


Lawyers Without Borders, Catherine A. Rogers Apr 2016

Lawyers Without Borders, Catherine A. Rogers

Catherine Rogers

Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy …


Regulating International Arbitrators: A Functional Approach To Developing Standards Of Conduct, Catherine A. Rogers Apr 2016

Regulating International Arbitrators: A Functional Approach To Developing Standards Of Conduct, Catherine A. Rogers

Catherine Rogers

Some scholars have protested that arbitrators are subject to less exacting regulation than barbers and taxidermists. The real problem with international arbitrators, however, is not that they are subject to less regulation, but that no one agrees about how they should be regulated. The primary reason for judicial and scholarly disagreement is that, instead of a coherent theory, analysis of arbitrator conduct erroneously relies on a misleading judicial referent and a methodologic failure to separate conduct standards (meaning those norms or rules that guide arbitrators' professional conduct) from enforcement standards (meaning those narrow grounds under which an arbitral award can …


The Vocation Of International Arbitrators, Catherine A. Rogers Apr 2016

The Vocation Of International Arbitrators, Catherine A. Rogers

Catherine Rogers

This Essay examines the vocation of the international arbitrator. I begin by evaluating, under sociological frameworks developed in literature on Weberian theories of the professions, how the arbitration community is organized and regulated. Arbitrators operate in a largely private and unregulated market for services, access to which is essentially controlled by what might be considered a governing cartel of the most elite arbitrators. I conclude my description with an account of how recently international arbitrators have begun to display a professional impulse, meaning efforts to present themselves as a profession to obtain the benefits of professionalization. Professional status is often …


The Rise In Judicial Hostility To Arbitration: Revisiting Hall Street Associates, Thomas E. Carbonneau Apr 2016

The Rise In Judicial Hostility To Arbitration: Revisiting Hall Street Associates, Thomas E. Carbonneau

Thomas Carbonneau

When the United States Supreme Court granted certiorari in Hall Street Associates,LLC v. Mattel, Inc., commentators expected the Court to resolve the split among the federal circuits regarding the validity and enforceability of 'opt-in' agreements.Since the late 1990s, these agreements had become a means through which contracting parties could obtain enhanced judicial supervision of arbitral awards by providing for judicial review of the merits of arbitrator rulings. While commentators got a resolution to the split, they received a great deal more than they had been promised. Stylistic opacity made the opinion in Hall Street somewhat inaccessible. In fact, as rendered, …


The Revolution In Law Through Arbitration, Thomas E. Carbonneau Apr 2016

The Revolution In Law Through Arbitration, Thomas E. Carbonneau

Thomas Carbonneau

My subject is arbitration. I explore how its re-emergence during the last forty years has revolutionized the thinking about, and the practice of, law. The development of a "strong federal policy favoring arbitration" cast aside traditional acceptations about law and adjudication. The rule of law-the human civilization associated with law and the legal process-has been profoundly, perhaps irretrievably, altered by the rise of arbitration. The landmark cases in labor and employment arbitration- Alexander v.Gardner-Denver Company (the "old time religion") and Gilmer v. Interstate/JohnsonLane Corporation (the "new age" thinking)- attest to the enormous distance that separates past and present concepts of …


The Ballad Of Transborder Arbitration, Thomas E. Carbonneau Apr 2016

The Ballad Of Transborder Arbitration, Thomas E. Carbonneau

Thomas Carbonneau

International commercial arbitration (ICA) is many things positive. Because business transactions cannot take place without a functional system of adjudication,ICA has enabled parties to engage in and pursue international commerce. As a result, it has had an enormous impact upon the international practice of law, the structuring of a de facto international legal system, and the development of a substantive world law of commerce. In a word, ICA has been a vital engine in the creation of a transborder rule of law. Furthering this design, the arbitral "method"has even been applied to the unruly political problems that attend international trade …


The Exercise Of Contract Freedom In The Making Of Arbitration Agreements, Thomas E. Carbonneau Apr 2016

The Exercise Of Contract Freedom In The Making Of Arbitration Agreements, Thomas E. Carbonneau

Thomas Carbonneau

A universal principle of contemporary arbitration law is that contract plays a vital role in the governance of arbitration. The vitality of that role can vary by legal system, court,statute, or treaty. Nonetheless, party agreement often provides the most significant rules for regulating arbitrations and conducting arbitral proceedings. This is especially true in international commercial arbitration. There, the lack of a functional transborder legislativeand adjudicatory process made contract the principal source of law for internationalcommercial transactions and arbitrations. Although law-making is more possible withinindividual national legal systems, the rule of contract freedom is also firmly established inmatters of domestic arbitration. …


Judicial Approbation In Building The Civilization Of Arbitration, Thomas E. Carbonneau Apr 2016

Judicial Approbation In Building The Civilization Of Arbitration, Thomas E. Carbonneau

Thomas Carbonneau

This article describes and assesses the work of three national courts in regard to arbitration. The English experience demonstrates that judicial diffidence toward arbitration and concomitant reverence for the cohesion of substantive law can hamper the acceptance and function of arbitration within the legal system. The French and American experiences attest to a contradistinctive use of judicial authority in regard to arbitration. In both legal systems, the courts have been instrumental to the elaboration of a receptive and accommodating law on arbitration. In these legal systems, legislative enactments are used as a springboard for developing a judicial policy and decisional …


Commercial Peace And Political Competition In The Crosshairs Of International Arbitration, Thomas E. Carbonneau Apr 2016

Commercial Peace And Political Competition In The Crosshairs Of International Arbitration, Thomas E. Carbonneau

Thomas Carbonneau

This article examines the mixed effect of arbitration upon the generation of international law norms; in particular, how arbitration can generate private law norms so effectively and yet still face strong resistance in public international law processes and controversies. The work of arbitration for international commercial litigation has been nothing less than spectacular. In both the private international and domestic civil contexts, arbitration has provided viable remedial solutions and functional adjudication when the law was either nonexistent or incapacitated. It has supplied a workable and adaptable trial system, which-on the international side-could also generate substantive legal norms. Arbitration thereby has …


Arguments In Favor Of The Triumph Of Arbitration, Thomas E. Carbonneau Apr 2016

Arguments In Favor Of The Triumph Of Arbitration, Thomas E. Carbonneau

Thomas Carbonneau

Arbitration is not just another trial procedure. It epitomizes a practical understanding of the purpose and value of adjudicatory procedures. It poses a substantial challenge to adversarial litigation by exposing its underlying irrationality and its destructive impact upon society. It guarantees the rule of law domestically and internationally through affordable access, expedited proceedings, expertise, and bridging the gap between national legal systems. It is a valuable institution that should not become a pawn in the tired and unimaginative political discourse that substitutes 'talking points' for genuine reflection and debate. The gravamen of the current attack on arbitration is not the …


Arbitral Law-Making, Thomas E. Carbonneau Apr 2016

Arbitral Law-Making, Thomas E. Carbonneau

Thomas Carbonneau

Diversity--of a cultural, economic, religious, and political kind—exists not only among nation-states and in the sources and interpretation of international law, but also among the group of commentators who study the interactions of transborder actors and institutions. For example, sociologists interested in the global community seek to identify emerging entities and activities and to elaborate conceptual models that explain the new differentiations within the traditional pattern. Some of them have a mounting interest in the fashioning of transborder commercial justice by international arbitrators and private arbitral institutions. Who are these new players? How did they acquire their mandate? Further, how …


Arbitration And The U.S. Supreme Court: A Plea For Statutory Reform, Thomas E. Carbonneau Apr 2016

Arbitration And The U.S. Supreme Court: A Plea For Statutory Reform, Thomas E. Carbonneau

Thomas Carbonneau

This Article argues for stabilizing and preserving arbitration's necessary and valuable vocation in dispute resolution. It outlines the basic stages in the evolution of the American law of arbitration and studies the underlying motivation of each of its historical phases. It attributes vital significance to the legislative and decisional law developments that led to an early rehabilitation of arbitration in American law, beginning with the enactment of the United States Arbitration Act (FAA) in 1925 and continuing with the ratification of the New York Arbitration Convention and the elaboration of a "hospitable" federal caselaw. Eventually, these developments gave rise to …


Building The Civilization Of Arbitration - Introduction, Thomas E. Carbonneau Apr 2016

Building The Civilization Of Arbitration - Introduction, Thomas E. Carbonneau

Thomas Carbonneau

The U.S. Supreme Court's work product has generated a large and growing arbitration bar. It also has finally begun to stimulate a greater volume of academic activity on the topic of arbitration. The work of legal practitioners and academics,along with the courts' decisional law, are "Building a Civilization of Arbitration" that codifies advances and grapples with the controversial aspects of law-in-the making.The Penn State Dickinson School of Law takes great pride in welcoming a distinguished group of lawyers and law teachers to the pages of its Law Review.They are the leaders in the field of arbitration. Their contributions identify the …


Arbitral Justice: The Demise Of Due Process In American Law, Thomas E. Carbonneau Apr 2016

Arbitral Justice: The Demise Of Due Process In American Law, Thomas E. Carbonneau

Thomas Carbonneau

Arbitration consists of a process for resolving disputes in a final and binding manner outside the traditional court system. The rules that govern arbitration provide for flexible proceedings and do not require the strict application of legal rules. Owing largely to the holdings of the U.S. Supreme Court, arbitration law and procedure have emerged from the obscurity of specialized practice and entered the adjudicatory mainstream. In 1925, with the enactment of the U.S. Arbitration Act, the U.S. Congress declaredthe rehabilitation of arbitral justice and dispute resolution. These provisionsanticipated, in effect, the modern, world-wide legislative legitimization ofarbitration. Primarily because of the …


Innovation In Arbitration Law: The Case Of Delaware, Christopher R. Drahozal Apr 2016

Innovation In Arbitration Law: The Case Of Delaware, Christopher R. Drahozal

Pepperdine Law Review

Delaware has become increasingly active in adopting innovative arbitration laws. In 2009, Delaware adopted a confidential system of “arbitration” conducted by sitting Court of Chancery judges, which was subsequently held unconstitutional as violating the First Amendment right of public access to the courts. In 2015, it enacted the Delaware Rapid Arbitration Act (DRAA), creating a system of expedited arbitration in Delaware. Among other things, the DRAA sets mandatory time limits for the completion of arbitration proceedings (with financial penalties for arbitrators who fail to comply), restricts the degree of court involvement in the arbitration process, and provides for expeditious review …


Gateway-Schmateway: An Exchange Between George Bermann And Alan Rau, George Bermann, Alan Scott Rau Apr 2016

Gateway-Schmateway: An Exchange Between George Bermann And Alan Rau, George Bermann, Alan Scott Rau

Pepperdine Law Review

No abstract provided.


Introduction: International Arbitration And The Courts, Donald Earl Childress Iii, Jack J. Coe Jr., Lacey L. Estudillo Apr 2016

Introduction: International Arbitration And The Courts, Donald Earl Childress Iii, Jack J. Coe Jr., Lacey L. Estudillo

Pepperdine Law Review

What role do national courts play in international arbitration? Is international arbitration an “autonomous dispute resolution process, governed primarily by non-national rules and accepted international commercial rules and practices” where the influence of national courts is merely secondary? Or, in light of the fact that “international arbitration always operates in the shadow of national courts,” is it not more accurate to say that national courts and international arbitration act in partnership? On April 17, 2015, the Pepperdine Law Review convened a group of distinguished authorities from international practice and academia to discuss these and other related issues for a symposium …


A Comprehensive Theory Of Civil Settlement, J. J. Prescott, Kathryn E. Spier Apr 2016

A Comprehensive Theory Of Civil Settlement, J. J. Prescott, Kathryn E. Spier

Articles

A settlement is an agreement between parties to a dispute. In everyday parlance and in academic scholarship, settlement is juxtaposed with trial or some other method of dispute resolution in which a third-party factfinder ultimately picks a winner and announces a score. The “trial versus settlement” trope, however, represents a false choice; viewing settlement solely as a dispute-ending alternative to a costly trial leads to a narrow understanding of how dispute resolution should and often does work. In this Article, we describe and defend a much richer concept of settlement, amounting in effect to a continuum of possible agreements between …


The Resolution Of Disputes Before The Singapore International Commercial Court, Man Yip Mar 2016

The Resolution Of Disputes Before The Singapore International Commercial Court, Man Yip

Research Collection Yong Pung How School Of Law

The jurisdictional framework of the Singapore courts has become more nuanced with the establishment of the Singapore International Commercial Court (SICC) on 5 January 2015 and the signing of the Hague Convention on the Choice of Court Agreements 2005 (Hague Convention) on 25 March 2015. Although the Hague Convention has yet to be incorporated in domestic law, it is expected this will happen in the near future. The SICC project, on the other hand, is part of Singapore's strategy to promote the jurisdiction as an international dispute resolution hub. In essence, the SICC is a domestic specialist court established to …


Korean Perspectives On Trade And Investment Multilateral Agreements And Dispute Resolution, Lucy Reed, E. Y. Park, Joongi Kim, Beomsu Kim, Kevin Kim Feb 2016

Korean Perspectives On Trade And Investment Multilateral Agreements And Dispute Resolution, Lucy Reed, E. Y. Park, Joongi Kim, Beomsu Kim, Kevin Kim

Pepperdine Dispute Resolution Law Journal

No abstract provided.


The Glucose Model Of Mediation: Physiological Bases Of Willpower As Important Explanations For Common Mediation Behavior, Roy F. Baumeister, W. Scott Simpson, Stephen J. Ware, Daniel S. Weber Feb 2016

The Glucose Model Of Mediation: Physiological Bases Of Willpower As Important Explanations For Common Mediation Behavior, Roy F. Baumeister, W. Scott Simpson, Stephen J. Ware, Daniel S. Weber

Pepperdine Dispute Resolution Law Journal

Success in life requires the ability to resist urges and control behavior. This ability is commonly called “willpower,” the capacity to overcome impulses and engage in conscious acts of self-control. Social psychologists believe willpower is a finite resource dependent on physiological bases including glucose (from food and drink), sleep and other forms of rest, and the absence of stress. In short, people who are hungry, exhausted, or highly stressed tend to have less willpower than those who are well-fed, well-rested, and relatively stress-free. In addition, a person who exerts self-control (uses willpower) tends to reduce temporarily the amount of willpower …


The Intersection Between Legal Risk Management And Dispute Resolution In The Commercial Context, Garrick Apollon Feb 2016

The Intersection Between Legal Risk Management And Dispute Resolution In The Commercial Context, Garrick Apollon

Pepperdine Dispute Resolution Law Journal

This article explains the key advantages and challenges of using LRM to help lawyers managing substantive matters related to the commercial negotiations and disputes, and the key advantage of using ADR techniques for the management of nonsubstantive matters related to commercial negotiations and disputes. This article overall demonstrates that LRM can complement dispute resolution and vice versa. This article also demonstrates how LRM can be utilized in commercial negotiations and mediations.