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Arbitrator Diversity: Can It Be Achieved?, Sarah Rudolph Cole Jan 2021

Arbitrator Diversity: Can It Be Achieved?, Sarah Rudolph Cole

Washington University Law Review

The 2018 lawsuit Jay-Z brought against the American Arbitration Association (AAA) because the list of twelve arbitrators AAA provided in a breach of contract dispute did not include a black arbitrator highlighted ongoing concerns about the lack of diversity in the arbitrator corps. Given arbitration’s already less formal structure, one method for enhancing its legitimacy among diverse disputants would be to ensure greater diversity among those empowered to make decisions. Increasing diversity of neutral rosters––and more importantly, of the arbitrators ultimately selected from those rosters––may improve the public’s perception of the fairness and impartiality of the ...


Creating A Framework For Examining Federal Agency Rules Impacting Arbitration, Kristen M. Blankley Jan 2020

Creating A Framework For Examining Federal Agency Rules Impacting Arbitration, Kristen M. Blankley

Washington University Journal of Law & Policy

Since 1985, the analysis for determining how to resolve a conflict between the Federal Arbitration Act (“FAA”) and another federal statute has been clear – courts should consider whether Congress evidenced a “contrary congressional command” stating that arbitration agreements may not be enforced under the statute. In contrast, no court has created an analytical framework to consider how to compare federal regulatory actions (by rule or adjudication) prohibiting enforcement of pre-dispute arbitration agreements. This Article fills the gap and suggests two frameworks under which agency actions prohibiting enforcement of arbitration agreements could be considered a “contrary congressional command” rule focused on ...


‘The Peculiar Genius Of Private-Law Systems’: Making Room For Religious Commerce, Michael A. Helfand Jan 2020

‘The Peculiar Genius Of Private-Law Systems’: Making Room For Religious Commerce, Michael A. Helfand

Washington University Law Review

Religious commerce has long sat uncomfortably at the nexus of public law and private law. On the one hand, such transactions invariably have garden-variety commercial objectives, which are best achieved and regulated through the law of tort, contract, and property. And yet the intermingled religious aspirations of the parties often inject constitutional concerns that muddy the waters. To navigate these challenges, the Supreme Court famously embraced the neutral principles of law framework, which encouraged parties to draft private law agreements using secular terminology. Thus, while the Establishment Clause provided the outer boundaries for what was legally possible, the neutral principles ...


Pioneering Women Lawyers Who Changed The Legal Profession And Influenced The Practice Of Law, Including Mediation Practice: From Barkeloo And Couzins To The Present, Karen Tokarz Jan 2020

Pioneering Women Lawyers Who Changed The Legal Profession And Influenced The Practice Of Law, Including Mediation Practice: From Barkeloo And Couzins To The Present, Karen Tokarz

Washington University Journal of Law & Policy

This Article considers the importance of the growth of women in the legal profession, specifically mediation as a form of legal dispute resolution. Using Professor Trina Grillo’s article, The Mediation Alternative: Process Dangers for Women, this Article focuses on the need for mindful mediation and reflective practice. Through a focus on voluntariness, self-determination, attention to bias, and attention to the process, a mediator may achieve a mindful and reflective practice.


Introduction: New Directions In Domestic And International Dispute Resolution, Karen Tokarz Jan 2020

Introduction: New Directions In Domestic And International Dispute Resolution, Karen Tokarz

Washington University Journal of Law & Policy

No abstract provided.


Strengthening Online Dispute Resolution Justice, Noam Ebner, Elayne E. Greenberg Jan 2020

Strengthening Online Dispute Resolution Justice, Noam Ebner, Elayne E. Greenberg

Washington University Journal of Law & Policy

This paper adopts a systems-design approach to focus courts and lawyers on the unexamined: how involving lawyers in the design, development and implementation of court-annexed online dispute resolution (ODR) programs, will strengthen their justice outcomes. The phrase “ODR programs” refers to the new menu of processes for dispute resolution and litigation offered online by courts.


Like A Prayer? Applying Conflicts With Religious Dimensions Theory To The "Muezzin Law" Conflict, Yael Efron, Michelle Lebaron, Maged Senbel, Mohammed S. Wattad Jan 2020

Like A Prayer? Applying Conflicts With Religious Dimensions Theory To The "Muezzin Law" Conflict, Yael Efron, Michelle Lebaron, Maged Senbel, Mohammed S. Wattad

Washington University Journal of Law & Policy

What is the nature of the dispute around an Israeli law that proposes restricting how Muslim followers are called for prayer? And, why does the nature of this dispute hold any importance? LeBaron and Senbel have developed a theory differentiating conflicts with religious dimensions (CRDs) from other types of conflicts. The importance of this distinction stems from and highlights the unique role that religion plays in conflicts, which liberal, rational, and individualistic orientations to conflict management fail to address.

This article offers a trial run of LeBaron and Senbel’s innovative theoretical framework. We apply CRD theory to conduct an ...


Formalizing The Informal: Development And Its Impacts On Traditional Dispute Resolution In Bhutan, Stephan Sonnenberg Jan 2020

Formalizing The Informal: Development And Its Impacts On Traditional Dispute Resolution In Bhutan, Stephan Sonnenberg

Washington University Journal of Law & Policy

Bhutan, a small landlocked country, with less than a million residents lies between two of the most populous nations on earth, India and China. Beyond its beautiful scenery and national development philosophy of pursuing “Gross National Happiness,” this Article argues that it should also be known for its heritage of traditional dispute resolution. This system kept peace in villages for centuries; however, now such tradition face extinction. As argued below, such extinction stems from modernization. This Article explores the interplay between reforms to the formal justice system and the informal dispute resolution practices that operate at the local level, as ...


Mediation In The World Of Commercial Dispute Litigation: An Inside Look At The Challenges For Counsel, Mediators, And Insurance Claims Professionals, Jeff Trueman Jan 2020

Mediation In The World Of Commercial Dispute Litigation: An Inside Look At The Challenges For Counsel, Mediators, And Insurance Claims Professionals, Jeff Trueman

Washington University Journal of Law & Policy

This Article examines the professional roles of all parties during commercial mediation. Through a qualitative research project, this author examined the challenges, frustrations, and concerns faced by participants during the mediation of litigated commercial disputes. As a result of these qualitative surveys, similar challenges and frustrations emerge in the mediation process. Specifically, a study in contrasts emerges, similar to the paradox between competition and cooperation. These contrasts exist with all parties to the mediation process.


Addressing The Eviction Crisis And Housing Instability Through Mediation, Karen Tokarz, Samuel Hoff Stragand, Michael Geigerman, Wolf Smith Jan 2020

Addressing The Eviction Crisis And Housing Instability Through Mediation, Karen Tokarz, Samuel Hoff Stragand, Michael Geigerman, Wolf Smith

Washington University Journal of Law & Policy

The United States faces a staggering eviction crisis. St. Louis City and St. Louis County illustrate the numbers found in major cities throughout the country. The high number of eviction lawsuits filed in these areas present opportunities to address evictions outside of litigation, specifically through housing court mediation. The Mediation Project provides free mediation services for the pro se housing dockets in both St. Louis City and St. Louis County Circuit Courts. Using the Mediation Project as an example, this Article proposes that mediation is one of the cheapest, easiest, and most effective ways to intervene to decrease housing evictions ...


The Fork In The Road Revisited: An Attempt To Overcome The Clash Between Formalistic And Pragmatic Approaches, Markus A. Petsche Jan 2019

The Fork In The Road Revisited: An Attempt To Overcome The Clash Between Formalistic And Pragmatic Approaches, Markus A. Petsche

Washington University Global Studies Law Review

This article revisits one of the most controversial issues of international investment law, namely the question of the effect of fork-in- the-road (FITR) clauses contained in investment treaties. It provides a comprehensive and detailed examination of the relevant arbitral case law, highlighting the co-existence of two formalistic approaches (based respectively on the distinction between treaty and contract claims and the lis pendens-related triple-identity test) with the more pragmatic fundamental-basis test established by the ICSID tribunal in Pantechniki v. Albanania and subsequently endorsed in H&H v. Egypt. This contribution critically examines these two strands of case law, emphasizing both the ...


Encouraging Frand-Ly Negotiations: A Comparison Of The United States And European Approaches To Allowing Injuctive Relief In Cases Involving Frand-Encumbered Standard-Essential Patents, Lizaveta Miadzvedskaya Jan 2019

Encouraging Frand-Ly Negotiations: A Comparison Of The United States And European Approaches To Allowing Injuctive Relief In Cases Involving Frand-Encumbered Standard-Essential Patents, Lizaveta Miadzvedskaya

Washington University Global Studies Law Review

This Note maintains that holders of fair, reasonable, and non-discriminatory ("FRAND")-encumbered standard-essential patents ("SEPs") should continue to have access to injunctive relief in United States courts as well as exclusionary relief at the United States International Trade Commission (“USITC”) in limited circumstances; the Note argues these limited circumstances should include instances of egregious knowing or willful infringement and instances where an implementer refuses to take a license on FRAND terms. The Note also argues that United States courts and the USITC should develop a set of guidelines outlining the obligations of participants in licensing negotiations over FRAND-encumbered SEPs, such ...


Second-Best Criminal Justice, William Ortman Jan 2019

Second-Best Criminal Justice, William Ortman

Washington University Law Review

Criminal procedure reform can be understood as a “second-best” enterprise. The general theory of second best applies where an ingredient necessary for a “first-best” ordering is unattainable. That’s an apt description of the contemporary criminal process. Our normative ideals of criminal justice require fair and frequent trials to judge guilt or innocence, but the criminal trial rate has been falling for at least a century; today it is vanishingly close to zero. What may be even worse is how we’ve eliminated trials—by endowing prosecutors with enough leverage to coerce guilty pleas. Excessive prosecutorial leverage is the source ...


A Tool For Improving Mediations: Informed Pairings And Predictive Outcomes, Shaphan Roberts Jan 2019

A Tool For Improving Mediations: Informed Pairings And Predictive Outcomes, Shaphan Roberts

Washington University Journal of Law & Policy

This paper examines the Community Police Unification Program (“CPU”), a collaboration between the Los Angeles Police Department (“LAPD”) and the Los Angeles City Attorney’s office that offers a tool for effectively pairing mediators to cases. First, this paper briefly explores the need for such a mediation program to facilitate communication between LAPD and the community it serves. The paper then explores the uniqueness of CPU cases and the need for correctly pairing mediators. Finally, the paper discusses the strengths, weaknesses and areas for improvement when developing a pairing tool for such a program.


“If A Person Must Die, Then So Be It”: A Constitutional Perspective On South Africa’S Land Crisis, Dylan Hitchcock-Lopez Jan 2019

“If A Person Must Die, Then So Be It”: A Constitutional Perspective On South Africa’S Land Crisis, Dylan Hitchcock-Lopez

Washington University Journal of Law & Policy

This note addresses the ongoing process of land reform in South Africa. It particularly focuses on one of the three land reform pillars laid out in South Africa’s constitution—security of tenure. The note argues that, in light of the Constitutional Court’s holding that communities may possess collective rights of land ownership, legislation should be enacted to vindicate these rights. Rather than attempting to articulate exhaustively the substance of communal land rights, the proposal emphasizes procedural rights, effective dispute resolution, and affordable modern surveying methods as a way of efficiently providing a trajectory toward tenure security within the ...


Mahr Provisions And The Case For Shari’A Arbitration, Cora Allen Jan 2018

Mahr Provisions And The Case For Shari’A Arbitration, Cora Allen

Washington University Law Review

The global Muslim population is currently estimated at 1.8 billion people, comprising twenty-four percent of the total global population. The United States alone is home to 3.45 million Muslim individuals. Further, both global and national Muslim populations are predicted to grow rapidly over the next half-century. The Pew Research Foundation predicts that between 2015 and 2060, the global Muslim population will grow over twice as fast as the overall world population and that by 2050, the Muslim population in America will reach 8.1 million. These changes would make Muslims the second-largest religious group in the United States ...


Treaty-Based Claims Against Subdivisions Of Icsid Contracting States, Douglas Pivnichny Jan 2017

Treaty-Based Claims Against Subdivisions Of Icsid Contracting States, Douglas Pivnichny

Washington University Global Studies Law Review

This article primarily concerns the juridical personality of States in public international law, how this has changed in the 20th century, and potential consequences of these developments in the field of investor-State arbitration. Specifically, it asks whether a subdivision of a federal State made subject to the jurisdiction of the International Centre for the Settlement of Investment Disputes (“ICSID” or “the Centre”) under Article 25 of the ICSID Convention may be responsible as a juridical person independent of its State for violating an investment treaty (e.g., a bilateral investment treaty (“BIT”) or the investment chapter of a free-trade agreement ...


Introduction, Karen Tokarz Jan 2016

Introduction, Karen Tokarz

Washington University Journal of Law & Policy

No abstract provided.


Investor-State Arbitration And Domestic Environmental Protection, Tamara L. Slater Jan 2015

Investor-State Arbitration And Domestic Environmental Protection, Tamara L. Slater

Washington University Global Studies Law Review

Environmentalists and advocates of free trade have begun to agree that disputes arising under international trade and investment agreements raise not only commercial issues, but also important questions of public policy. This Note explores whether and how a country can protect the environment through domestic laws given the frequency with which a provision requiring Investor-State Dispute Settlement (ISDS), a particular dispute resolution mechanism, is included in investment agreements and subsequently utilized by corporations.


You Help Me, He Helps You: Dispute Systems Design In The Sharing Economy, Heather Scheiwe Kulp, Amanda L. Kool Jan 2015

You Help Me, He Helps You: Dispute Systems Design In The Sharing Economy, Heather Scheiwe Kulp, Amanda L. Kool

Washington University Journal of Law & Policy

Kulp and Kool discuss the potential for dispute resolution schemes in a sharing economy, one they argue involves a more efficient use of resources. The sharing economy is at the nexus of fast-paced technology that connects people to previously inaccessible resources to increase local consumption. Kulp and Kool argue that such sharing economies maximize the benefits of ownership by leveraging goods and services into a resource generator allowing increased access to goods and services at a lower-than-market rate. This unique market structure requires a distinct set of laws to address the unique relationships involved, and this Article explores how attorneys ...


Resolving Intrastate Conflicts Of Laws: The Example Of The Federal Arbitration Act, Andrew D. Bradt Jan 2015

Resolving Intrastate Conflicts Of Laws: The Example Of The Federal Arbitration Act, Andrew D. Bradt

Washington University Law Review

Choice-of-law analysis is typically thought of as confined to the multistate setting. This is a mistake. To the contrary, conflicts often appear between statutes of a single state. Unfortunately, courts do not see these cases as “choice-of-law” cases. They see them only as problems of statutory interpretation and ignore conflicts of laws instead of resolving them, either by construing the conflicting statutes independently or applying a canon of construction. Here, I examine the benefits of importing choice-of-law tools—particularly the tools of governmental-interest analysis—into the resolution of intrastate conflicts of laws. When two laws promulgated by the same sovereign ...


For Those Who Do Not Speak: Protecting Class Arbitration As The Last Collective-Action Option For Women, Jennifer L. Bame Jan 2015

For Those Who Do Not Speak: Protecting Class Arbitration As The Last Collective-Action Option For Women, Jennifer L. Bame

Washington University Journal of Law & Policy

This Note argues that the Supreme Court, under § 7 of the NLRA, should uphold the protection of class arbitration as a concerted activity, because it is an especially important tool for equalizing the power of women in the workplace. Through the preservation of class arbitration, women will be more successful in enforcing their workplace rights. This Note reviews how the division of labor along gender lines has created devastating economic consequences for women, who constitute a large majority of the working poor in America. The Note concludes that the decline of unionization and other collective-action strategies has left class arbitration ...


Resolving Impact Investment Disputes: When Doing Good Goes Bad, Deborah Burand Jan 2015

Resolving Impact Investment Disputes: When Doing Good Goes Bad, Deborah Burand

Washington University Journal of Law & Policy

Impact investing, or investing with the goal of generating financial returns, is pursued within the context of advancing social goals. This Article describes the state of impact investing today and focuses on how to respond to impact investments that go awry by failing to meet investors’ financial expectations (rather than those that fail to meet investors’ social expectations). Burand then evaluates the appropriateness of using international arbitration as a dispute resolution mechanism for cross-border impact investing disputes, and suggests other resolution mechanisms that are capable of settling these disputes.


The Use Of Mediation To Resolve Community Disputes, Charles B. Craver Jan 2015

The Use Of Mediation To Resolve Community Disputes, Charles B. Craver

Washington University Journal of Law & Policy

Craver calls for a greater recognition that mediation as a form of dispute resolution is essentially akin to assisted negotiation, and argues that this form of dispute settlement should be utilized more frequently in disputes among members of a community. Craver suggests that successful mediation can help assuage community members of the typical negative social pressure associated with inter-community litigation, and provides that such mediation can enhance the psychological well-being of the negotiating parties. This Article explores the best practices for mediators that are engaged in resolving community disputes.


International Arbitration In Highly Political Situations: The South China Sea Dispute And International Law, Kristen E. Boon Jan 2014

International Arbitration In Highly Political Situations: The South China Sea Dispute And International Law, Kristen E. Boon

Washington University Global Studies Law Review

No abstract provided.


How To Conduct Effective Transnational Negotiations Between Nations, Nongovernmental Organizations, And Business Firms, Charles B. Craver Jan 2014

How To Conduct Effective Transnational Negotiations Between Nations, Nongovernmental Organizations, And Business Firms, Charles B. Craver

Washington University Journal of Law & Policy

As computers, the Internet, and efficient transportation systems have generated a truly global political and economic world, the extent of governmental and private transnational negotiating has significantly increased. International political entities—such as the United Nations and its affiliates and the World Trade Organization (WTO)—and regional political/economic groups—such as the European Union, the Group of Eight (G-8), the expanded Group of Twenty (G-20), and the North American Free Trade Zone—have increased the number of bilateral and multilateral governmental bargaining interactions. Nongovernmental organizations (NGOs) have become increasingly involved with issues that were previously addressed exclusively through governmental ...


Beyond International Commercial Arbitration? The Promise Of International Commercial Mediation, S. I. Strong Jan 2014

Beyond International Commercial Arbitration? The Promise Of International Commercial Mediation, S. I. Strong

Washington University Journal of Law & Policy

International commercial arbitration has long been the preferred means of resolving complex business disputes in the cross-border context. However, the international corporate community has become somewhat disenchanted with that particular mechanism because of concerns about rising costs, delays, and procedural formality. As a result, parties are looking for other means of resolving international commercial disputes. One of the more popular alternatives is mediation.

A question arises as to whether and to what extent international commercial mediation can serve as an adequate substitute for international commercial arbitration and, in particular, whether it can live up to the promise of delivering quick ...


The Arbitration Clause As Super Contract, Richard Frankel Jan 2014

The Arbitration Clause As Super Contract, Richard Frankel

Washington University Law Review

It is widely acknowledged that the purpose of the Federal Arbitration Act (FAA) was to place arbitration clauses on equal footing with other contracts. Nonetheless, federal and state courts have turned arbitration clauses into “super contracts” by creating special interpretive rules for arbitration clauses that do not apply to other contracts. In doing so, they have relied extensively, and incorrectly, on the Supreme Court’s determination that the FAA embodies a federal policy favoring arbitration.

While many scholars have focused attention on the public policy rationales for and against arbitration, few have explored how arbitration clauses should be interpreted. This ...


Introduction, Karen L. Tokarz, Leila Nadya Sadat Jan 2014

Introduction, Karen L. Tokarz, Leila Nadya Sadat

Washington University Journal of Law & Policy

No abstract provided.


Mirror As Prism: Reimagining Reflexive Dispute Resolution Practice In A Globalized World, Kenneth H. Fox Jan 2014

Mirror As Prism: Reimagining Reflexive Dispute Resolution Practice In A Globalized World, Kenneth H. Fox

Washington University Journal of Law & Policy

As cooperative private international dispute resolution practices become increasingly common, it is tempting for conflict practitioners to assume that the human relations insights, skills, and practices that worked well for them at home will be equally effective (and appropriate) in an international, cross-cultural environment. However, exporting the ways we understand and interact with others in conflict from a domestic environment into new and different legal, political, economic, cultural, and social environments can be problematic. As a result, attending to the human dimension of conflict and interaction should be a central part of global negotiation and dispute resolution practice. That is ...