Law Commons^™

Deadly Dust: Occupational Health And Safety As A Driving Force In Workers’ Compensation Law And The Development Of Tort Doctrine And Practice, George Conk

Faculty Scholarship

No abstract provided.

Amazon's Antitrust Paradox, Lina M. Khan

Faculty Scholarship

Amazon is the titan of twenty-first century commerce. In addition to being a retailer, it is now a marketing platform, a delivery and logistics network, a payment service, a credit lender, an auction house, a major book publisher, a producer of television and films, a fashion designer, a hardware manufacturer, and a leading host of cloud server space. Although Amazon has clocked staggering growth, it generates meager profits, choosing to price below-cost and expand widely instead. Through this strategy, the company has positioned itself at the center of e-commerce and now serves as essential infrastructure for a host of other …

The Role Of National Courts At The Threshold Of Arbitration, George A. Bermann

Faculty Scholarship

There is a broad consensus that national courts of the arbitral seat have some kind of role to play during the pendency of an arbitration, though the exact contours of that role may differ from jurisdiction to jurisdiction. Similarly, it seems clear that national courts have a role to play on a post-award basis. While jurisdictions may vary as to the extent of control in annulment actions, the New York Convention brings a high degree of consensus over the role of courts in the recognition and enforcement of foreign awards, even though the Convention may receive different interpretations in different …

Arbitration As Wealth Transfer, Deepak Gupta, Lina M. Khan

Faculty Scholarship

Over the last few decades, the Supreme Court has steadily expanded the reach of forced arbitration clauses – clauses that companies embed in the fine print of standard-form contracts to deny consumers and workers the right to band together to sue those corporations in court. While the Court’s decisions that set this trend in motion trace back to the 1980s, the real game changers have been more recent: 2010’s Rent-A-Center v. Jackson, holding that arbitration clauses must be enforced even when they are part of an illegal contract; 2011’s AT&T Mobility v. Concepcion, granting companies the unfettered right …

Whole Other Story: Applying Narrative Mediation To The Immigration Beat, Carol Pauli

Faculty Scholarship

If Donald Trump, kicking off his campaign for the White House, was saying “what everyone is thinking,” about illegal immigration, it must be that his message mirrored a narrative that already existed in the minds of his audience. That fearful story of criminals invading the U.S. borders has long been a dominant theme in the mainstream news immigration story. Like all news stories, this one focuses attention on some facts at the expense of others. Like many news stories, it draws its power from earlier, well-known tales — some as old as the Flood. This article recommends that the news …

Magistrate Judges, Settlement, And Procedural Justice, Nancy A. Welsh

Faculty Scholarship

This Article begins, in Part I, with an overview of magistrate judges’ history and role generally, including a discussion of the mechanism of “blind consent” that must be undertaken before a magistrate judge may conduct a trial. Part I then turns to magistrate judges’ role in settlement and ADR, outlines the procedural and ethical rules governing judges’ role in settlement, and highlights research revealing lawyers’ concerns regarding judges’ role in settlement. In Part II, the Article provides a brief overview of mediation in the federal courts and considers the relationship between judge-hosted settlement sessions and mediation. With this background regarding …

Book Review: The Conflict Paradox: Seven Dilemmas At The Core Of Disputes By Bernie Mayer, Kelly Browe Olson

Faculty Scholarship

Bernie Mayer's latest book is an excellent journey into seven key dilemmas in conflict. Mayer devotes a chapter to each of the following dilemmas: Competition and Cooperation, Optimism and Realism, Avoidance and Engagement, Principle and Compromise, Emotions and Logic, Impartiality and Advocacy, and Autonomy and Community. In this review, I suggest that the book is a thorough guide through seemingly diverse and opposing conflict theories. I go through each chapter and detail how Mayer sees these concepts as interwoven instead of oppositional. He walks his readers through what have been thought of as distinctive, even opposing, approaches, theories, and concepts …

What We Know (And Need To Know) About Court-Annexed Dispute Resolution, Deborah Thompson Eisenberg

Faculty Scholarship

Mediation and other alternative dispute resolution (ADR) processes are now well integrated into the United States judicial system, in both civil and criminal cases. This white paper, drafted for the American Bar Association Commission on the Future of Legal Services, summarizes empirical evidence about the costs and benefits of court-annexed ADR. The first-generation of ADR research found that mediation and other ADR processes resulted in high party satisfaction rates, high settlement rates, cost savings and efficiency, increased long-term cooperation among the parties, and higher compliance rates with the outcome. The paper then examines a ground-breaking study conducted by the Maryland …

The "Nature" Of Legal Dispute Bargaining, Robert J. Condlin

Faculty Scholarship

The longstanding debate over the relative merits of adversarial and communitarian theories of legal dispute bargaining has been in somewhat of a holding pattern for several years, but recent research in the field of cognitive neuroscience may break the logjam. Laboratory experiments and case studies in that field have shown how dispositions and capacities for social cooperation inherited from natural selection and evolution predispose humans to configure disputing as a mixture of argument over factual reality, disagreement over the interpretation of normative standards, and a search for impartial resolutions that protect the interests of everyone involved equally. This neurobiological inheritance …

The Restorative Workplace: An Organizational Learning Approach To Discrimination, Deborah Thompson Eisenberg

Faculty Scholarship

On the fiftieth anniversary of Title VII of the Civil Rights Act, many employers continue to search for ways to implement the law’s antidiscrimination and equal opportunity mandates into the workplace. The current litigation-based approach to employment discrimination under Title VII and similar laws focuses on weeding out “bad apples” who are explicitly prejudiced. This “victim-villain” paradigm may fail to correct the complex, nuanced causes of workplace discrimination, or exacerbate the problem. This article explores an alternative approach—restorative practices—that may integrate the policy goals of antidiscrimination laws into the practical realities of managing an organization. Restorative practices engage everyone in …

Reflections On "Innovations In Family Dispute Resolution", Deborah Thompson Eisenberg

Faculty Scholarship

No abstract provided.

Promise And Peril: Doctrinally Permissible Options For Calibrating Procedures Through Contract,, Henry Allen Blair

Faculty Scholarship

For a long time, arbitration was the only game in town for parties who wanted more flexibility in the adjudication of their disputes. They faced a dichotomous choice between accepting the public court system and its attendant procedural rules or opting out entirely and resolving their disputes in arbitration. Private process, however, "has migrated in surprising ways into the public courts: despite public rules of procedure, judicial decisions increasingly are based on rules of procedure drafted by the parties . . . ." This sort of private procedural ordering gives parties the ability to unbundle the off-the-rack procedures applied in …

Texas Advance Directives Act: Nearly A Model Dispute Resolution Mechanism For Intractable Medical Futility Conflicts, Thaddeus Pope

Faculty Scholarship

Increasingly, clinicians and commentators have been calling for the establishment of special adjudicatory dispute resolution mechanisms to resolve intractable medical futility disputes. As a leading model to follow, policymakers both around the United States and around the world have been looking to the conflict resolution provisions in the 1999 Texas Advance Directives Act (‘TADA’). In this article, I provide a complete and thorough review of the purpose, history, and operation of TADA. I conclude that TADA is a commendable attempt to balance the competing goals of efficiency and fairness in the resolution of these time-sensitive life-and-death conflicts. But TADA is …

Variations On A Theme By Sander: Does A Mediator Have A Philosophical Map?, Sharon Press, Joseph B. Stulberg

Faculty Scholarship

Can a mediator play a constructive role in helping citizens confront and resolve the most divisive issues of our times? We believe the answer is affirmative, but we worry that such a view, though richly grounded in our historical tradition, is now neither widely endorsed nor effectively implemented.

We belong to a group of dispute resolution professionals who learned both from mentors and experience that ADR—and mediation, in particular-offers a philosophical map for conducting problem—solving activities among fellow citizens that systematically supports and advances our most noble aspirations for a fair society. Be it the urban riots of the 1960s …

Military Activities In The Unclos Compulsory Dispute Settlement System: Implications Of The South China Sea Arbitration For U.S. Ratification Of Unclos, Lori Fisler Damrosch

Faculty Scholarship

The Award on the Merits in the South China Sea Arbitration between the Philippines and China (Award) is the first decision of any tribunal to interpret the provision of the 1982 United Nations Convention on the Law of the Sea (Convention or UNCLOS) that allows states parties to exclude disputes concerning military activities from the Convention’s compulsory dispute settlement regime. That optional exclusion, embodied in Article 298(1)(b) of the Convention, was a central component of the strenuously-negotiated compromise between states that favored compulsory jurisdiction in principle and those that would have preferred a strictly optional system for third-party legal dispute …

Trust And The Srba Mediation, Francis E. Mcgovern

Faculty Scholarship

No abstract provided.

The Yukos Annulment: Answered And Unanswered Questions, George A. Bermann

Faculty Scholarship

On April 20, 2016, a Dutch court issued a major judgment annulling awards rendered in a dispute between the Russian Federation and three majority shareholders of the former giant Russian oil producer, OAO Yukos Oil Company (“Yukos”). The annulment by a national court of any investor-State award is always of great moment, but it was particularly so in the case of an award in excess of $50 billion. Discussion of the judgment has understandably occupied much of the international arbitration blogosphere.

After setting out the basic facts of the case, this piece briefly describes the position that the Tribunal had …

Medical Malpractice Arbitration: Not Business As Usual, David Larson, David Dahl

Faculty Scholarship

There is an interesting exception to businesses’, employers’, and service providers’ seemingly universal embrace of arbitration processes, particularly mandatory pre-dispute arbitration. Although it may be difficult to believe given arbitration’s current popularity, not everyone requires his or her clients to sign mandatory pre-dispute arbitration agreements. In fact, some service providers prefer to avoid arbitration regardless of whether it is arranged pre- or post-dispute. So which merchants or service providers are choosing to forgo arbitration and, more importantly, why do they dislike arbitration? And do politics have anything to with their choices? Physicians are not, shall we say, the world’s greatest …

The Role Of Language Interpretation In Providing A Quality Mediation Process, Alexandra Carter, Shawn Watts

Faculty Scholarship

This paper focuses on the role of language in mediation and the challenges multiple language fluencies bring to the practice. Beginning with a discussion of the process and ethics of mediation as a form of alternative dispute resolution, as distinct from other forms of dispute resolution including arbitration, the paper shifts to consider the importance of language. Language, and more specifically interpretation, plays a central role in the integrity of the mediation process and the quality of its outcomes. Each stage of mediation requires the participants and the mediator understand one another to ensure effective communication and a quality process. …

The Wto Dispute Settlement System 1995-2016: A Data Set And Its Descriptive Statistics, Louise Johannesson, Petros C. Mavroidis

Faculty Scholarship

In this paper, we provide some descriptive statistics of the first twenty years of the WTO (World Trade Organization) dispute settlement that we have extracted from the data set that we have put together, and made publicly available.

The statistical information that we present here is divided into three thematic units: the statutory and de facto duration of each stage of the process, paying particular attention to the eventual conclusion of litigation; the identity and participation in the process of the various institutional players, that is, not only complainants and defendants, but also third parties, as well as the WTO …

Ask For The Moon, Settle For The Stars: What Is A Reasonable Period To Comply With Wto Awards?, Petros C. Mavroidis, Niall Meagher, Thomas J. Prusa, Tatiana Yanguas

Faculty Scholarship

The World Trade Organization (WTO) dispute settlement process allows a defending Member a “reasonable period of time” (RPT) to implement any findings that its contested measures are inconsistent with WTO law. If agreement on this RPT cannot be reached, Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) provides for the possibility of arbitration on the length of the RPT. The DSU provides limited guidelines on the RPT, stating only that it should not normally exceed 15 months. In practice, Arbitrators have developed the standard that the RPT should reflect the shortest possible period …

The Gang That Couldn't Shoot Straight: The Not So Magnificent Seven Of The Wto Appellate Body, Petros C. Mavroidis

Faculty Scholarship

The WTO Appellate Body (AB) has produced a volume-wise important body of case law, which is often difficult to penetrate, never mind classify. Howse (2016) has attempted a very lucid taxonomy of the case law using the standard of review as benchmark for it. His conclusion is that the AB is quite cautious when facing nondiscriminatory measures, especially measures relating to the protection of human life and health, while it has adopted a more intrusive (into national sovereignty) standard when dealing with trade measures (like antidumping), which are by definition discriminatory as they concern imports only. In my response, I …

Dispute Settlement In The Wto: Mind Over Matter, Petros C. Mavroidis

Faculty Scholarship

The basic point I advocate in this paper is that the WTO Dispute Settlement System aims to curb unilateralism. No sanctions can be imposed, unless if the arbitration process is through, the purpose of which is to ensure that reciprocal commitments entered should not be unilaterally undone through the commission of illegalities. There are good reasons though, to doubt whether practice guarantees full reciprocity. The insistence on calculating remedies prospectively, and not as of the date when an illegality has been committed, and the ensuing losses for everybody that could or could not be symmetric, lend support to the claim …

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

Faculty Scholarship

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 27, 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 …

"International Standards" As A Choice Of Law Option In International Arbitration, George A. Bermann

Faculty Scholarship

A steady preoccupation of international arbitration has been the extent to which international arbitral tribunals should distance themselves in their conduct and practices from the conduct and practices of national courts. That distance is noticeably variable as one moves from one aspect of the adjudicatory process to another. Variable as well among aspects of the adjudicatory process is the degree of consensus as to what that distance on any given issue should be.

Equality Of Arms In Arbitration: Cost And Benefits, William W. Park

Faculty Scholarship

Depending on context and content, a regulatory framework can either help or hinder efforts to enhance aggregate social and economic welfare. Lively debate has arisen with respect to the net effects of two recent sets of directives for lawyer comportment in cross-border arbitration, the first being Guidelines adopted by the International Bar Association, the second contained in new arbitration rules promulgated by the London Court of International Arbitration. Each instrument aims to promote a more level playing field on matters where legal cultures differ, such as document production and counsel independence. Each has caused thoughtful commentators to question the need …

Incentivizing Corporate America To Eradicate Transnational Bribery Worldwide: Federal Transparency And Voluntary Disclosure Under The Foreign Corrupt Practice Act, Peter Reilly

Faculty Scholarship

In 1977, it was discovered that hundreds of U.S. companies had spent hundreds of millions of dollars in bribes to improve business overseas. In response, Congress passed the Foreign Corrupt Practices Act (FCPA), thereby making it illegal to bribe foreign officials to obtain a business advantage. A major tension has emerged between the federal agencies charged with enforcing the FCPA (i.e., the DOJ and SEC), and the corporate entities trying to stay within the legal and regulatory bounds of the statute. Specifically, while the government appears to be trying to maximize discretion and flexibility in carrying out its enforcement duties, …

Michael Mustill: A Reminiscence, William W. Park

Faculty Scholarship

The arbitration world lost a giant when Michael Mustill departed in April of this year, just a few days short of his 84th birthday. A man of enormous intellect and wit, with a fine capacity for sincere friendship, this generous Yorkshireman enriched us through contributions as counsel, judge, scholar, and mentor.

Transforming News: How Mediation Principles Can Depolarize Public Talk, Carol Pauli

Faculty Scholarship

News media interviews bring opposing voices into the public forum where, ideally, audience members can deliberate and reach democratic compromise. But in today’s politically polarized atmosphere, partisans increasingly accuse each other of being a threat to the country, and prospects for compromise have suffered. Journalists have been urged to take a more affirmative role, promoting problem-solving and opposing conflict. They have stopped short, citing professional norms that demand a stance of neutral detachment.

This Article turns to the principles of transformative mediation. Like journalism, it is detached from any goal of settlement. It aims instead at increasing the capacity of …

Lord Mustill And The Channel Tunnel Case, William W. Park

Faculty Scholarship

Over two decades ago, in the now legendary Channel Tunnel Case, the British House of Lords (as it then was) was asked to provide judicial support for the efficient completion of a monumental construction project. The decision in that matter, penned by the late Lord Mustill, illustrates the delicate interplay between the dynamics of otherwise applicable law and the bespoke arbitration framework chosen by sophisticated parties to govern their dispute.