Law Commons^™

Kaleidoscopic Consent Decrees: School Desegregation And Prison Reform Consent Decrees After The Prison Litigation Reform Act And Freeman-Dowell, Shima Baradaran-Robison

BYU Law Review

No abstract provided.

Environmental Dispute Resolution: An Anthology Of Practical Solutions, David C. Batson, Dustin P. Ordway

Buffalo Environmental Law Journal

No abstract provided.

Appellate Mediation In Pennsylvania: Looking Back At The History And Forward To The Future, Sandra Schultz Newman, Scott E. Friedman

The Journal of Appellate Practice and Process

No abstract provided.

Mediating With An 800-Pound Gorilla: Medicare And Adr, Phyllis E. Bernard

Washington and Lee Law Review

No abstract provided.

Response To Carrie Menkel-Meadow's Correspondences And Contradictions In International And Domestic Conflict Resolution: Lessons From General Theory And Varied Contexts, Wallace Warfield

Journal of Dispute Resolution

In this article, I would like to first spend a little time clarifying (or perhaps muddying) what is meant by "domestic" and "international" when people talk about conflicts and how they are resolved. Geographical and content-defining terms tossed about cavalierly say more about competing hierarchies and elitism than functional geopolitical designations. Next, I will suggest that part of the problem is how we locate theory in this debate: What kinds of theories lend themselves to generalization and which ones do not? And does the problem lay with the theory or the theory interpreter?

Use Of Neutral Fact-Finding To Preserve Exclusive Rights And Uphold The Disclosure Purpose Of The Patent System, Brian Panka

Journal of Dispute Resolution

This comment proposes the use of neutral fact-finding as a precursor to litigation of patent disputes. Section II begins with a brief introduction to the concept of patents and the system used in the United States for granting and protecting exclusive rights associated with patent grants. Then, Section III discusses traditional ADR processes available to resolve patent disputes and sets forth reasons those processes are not widely used. Finally, Section IV offers neutral factfinding as a solution to both litigation and traditional ADR process concerns with respect to resolving patent disputes

Evaluation Dispute Resolution Under Uncertainty: An Empirical Look At Bayes' Theorem And The Expected Value Of Perfect Information, Gregory Todd Jones, Douglas H. Yarn

Journal of Dispute Resolution

To begin, we review a standard model of litigation decision-making in Section I and propose an extension of this model to include ex post evaluative dispute resolution in Section II. Next, in Section III, we review the analytical concept of the expected value of perfect information as a means of placing a theoretical rational maximum on the value of the information provided by evaluative dispute resolution processes. In Section IV, we review Bayes' theorem and propose this as a rational benchmark for the integration of new information with previously existing subjective probabilities. In Section V, we offer a formal statement …

Tie That Doesn't Bind: Fifth Circuit Rules That Non-Signatory Agents Can't Compel Arbitration As Individuals - Westmoreland V. Sadoux, The, Keisha I. Patrick

Journal of Dispute Resolution

In Westmoreland v. Sadoux, the Fifth Circuit addresses the issue of whether a signatory party intended to enter an arbitration agreement with a non-signatory agent of the defendant corporation. The non-signatory agent sought to enforce the arbitration agreement between the signatory party and the signatory corporation in a suit brought against the non-signatory agent in his individual capacity. This case differs from most others that courts have addressed concerning non-signatory agents. In most cases, the complaining party seeks to enforce the arbitration agreement against the non-signatory agent. Yet, in Westmoreland, the nonsignatory agent himself seeks to compel arbitration

General Theory On Disputes And Conflicts, A, Raymond Shonholtz

Journal of Dispute Resolution

In response to Carrie Menkel-Meadow's challenge to articulate and define a general theory of conflict management that is universally applicable regardless of context or domain,' the following General Theory and methodologies are put forth. The relational context that Menkel-Meadow offers between domestic and international is not the applicable construct for the formation of a general theory. Instead, the relevant frame is between non-democratic and democratic political systems and the difference between the concepts of conflict and dispute and their attending institutional mechanisms. Menkel-Meadow's analysis is useful in subdefining the issues in the vast foliage of conflict resolution and dispute management, …

Problem-Solving Negotiation: Northern Ireland's Experience With The Women's Coalition, Jacqueline Nolan-Haley, Bronagh Hinds

Journal of Dispute Resolution

Women's peacemaking skills have long empowered them as voices for reconciliation in divided societies 8 and therefore, the role of women in preventive diplomacy, conflict resolution, and post conflict reconstruction is widely advanced today. Although historically women are credited with being actively involved in peacemaking efforts at the grassroots level during periods of conflict,' ° they are not generally considered to play a significant role in formal peace negotiations.' Northern Ireland proved to be an exception.'

Context And Pretext In Conflict Resolution, Kevin Avruch

Journal of Dispute Resolution

In this essay, I want to reflect on some of the problems raised by context and pretext from a different angle. I want to first consider some aspects of the varied contexts in which conflict resolution and alternative dispute resolution (ADR) developed in the United States, particularly in the academy. Historically, there have been some differences between the two, partly evident in the different meanings of the notion of "dispute" adopted by theorists and practitioners. I then want to examine some of the underlying pretexts for doing this work, and some possible consequences-especially as we more frequently engage in the …

Correspondences And Contradictions In International And Domestic Conflict Resolution: Lessons From General Theory And Varied Contexts, Carrie Menkel-Meadow

Journal of Dispute Resolution

Does the field of conflict resolution have any broadly applicable theories that "work" across the different domains of international and domestic conflict? Or, are contexts, participants, and resources so "domain" specific and variable that only "thick descriptions" of particular contexts will do? These are important questions which have been plaguing me in this depressing time for conflict resolution professionals, from September 11, 2001 (9/11), to the war against Iraq. Have we learned anything about conflict resolution that really does improve our ability to describe, predict, and act to reduce unnecessary and harmful conflict? These are the questions I want to …

Context, Yes - And Theory, Yes, Morton Deutsch

Journal of Dispute Resolution

I admire Carrie Menkel-Meadow's article very much.' It reveals her deep and broad knowledge of the field of conflict resolution. It also represents an important and valid emphasis on the necessity of a rich knowledge of specific contexts for applied work in those contexts. However, the article implicitly constructs a false opposition between contextual knowledge and theoretical knowledge; in reality, both are needed. I understand that "practitioners" and "theorists" commonly misunderstand one another because of their different orientations and social roles. In this article, I will discuss these differences and then briefly consider the integration of theory and practice.

Taking Dispute Resolution Theory Seriously At Home And Abroad: Prospects And Limitations, Bryant G. Garth

Journal of Dispute Resolution

Carrie Menkel-Meadow's splendid discussion of dispute resolution theory operates at several levels.' One level involves a questioning of the international applicability of U.S. dispute resolution theory. She shows that our theory is in many respects parochial-not necessarily capable of explaining or even contributing to shaping dispute resolution behavior outside the United States. For the theory to make any claim to universality, she suggests, it must take into account very different settings and perhaps even develop counter models applicable to some places but not others. A more context sensitive theory, she argues, can move us beyond concepts and approaches uncritically derived …

Is State Law Looking For Trouble: The Federal Arbitration Act Flexes Its Preemptive Muscle, Robert Hollis, Sarah E. Kerner, Alexa Irene Pearson, Ryan G. Vacca

Journal of Dispute Resolution

This article begins with an overview of the preemption concept as it affects the American legal system. The source of preemption power is revealed and the most common forms of preemption are introduced. Next, the article discusses preemption and its interaction with the Federal Arbitration Act (FAA). The discussion begins with a chronological view of the cases that have defined the effects the FAA has on arbitration agreements via its preemption power and ends with a summary of the current state of the law.

State Legislative Update, Mark G. Boyko

Journal of Dispute Resolution

This bill would have prevented employers from requiring employees to arbitrate disputes arising under the Fair Employment and Housing Act (FEHA). In doing so, it would have changed the established law in California that written agreements to arbitrate disputes are valid and enforceable. Specifically, this bill would have invalidated arbitration agreements between employers and employees if the employer required the employee to sign the agreement as a condition of employment. A.B. 1715 would have applied to employers with five or more employees.

Adr Clause By Any Other Name Might Smell As Sweet: England's High Court Of Justice Queens Bench Attempts And Fails To Define What Is Not An Enforceable Adr Clause - Cable 7 & (And) Wireless Plc V. Ibm United Kingdom Ltd, An, Alyson Carrel

Journal of Dispute Resolution

The High Court of Justice Queens Bench Division in England issued a ruling that provides sweeping support for the use of Alternative Dispute Resolution (ADR) in private pre-dispute contract clauses.' While this support might seem to aid in developing the growing ADR movement in England, the judge may have put the cart before the horse by enforcing a non-descript and broad ADR contract clause that lacks the specificity needed to ensure a fair outcome. This decision could be detrimental for disputing parties and the future of the ADR movement itself.

Applying The Eligibility Rule In Securities Arbitration: Resolving Circuit Court Conflict Regarding The Proper Role Of Arbitrators And Courts - Howsam V. Dean Witter Reynolds, Inc., James D. Hughes

Journal of Dispute Resolution

In Howsam v. Dean Witter Reynolds, Inc., the United States Supreme Court reviewed a Tenth Circuit holding that the eligibility rule presented a question of arbitrability, and was thus for the court to decide. Reversing, the Supreme Court held that the arbitrator, not a court, should apply the time limit rule. The Court's decision resolves the split among the circuit courts in addition to allowing arbitration clauses in securities firms' client agreements to serve their purpose of providing an efficient and less costly method of litigating disputes relating to investment accounts, ultimately increasing investor confidence in the securities industry.

Alternative Dispute Resolution As A Means Of Access To Justice In The Russian Federation, Elena Nosyreva, Douglas Carman, Dana Tumenova

Washington International Law Journal

This Article represents recent scholarship in Russian jurisprudence concerning the use of alternative dispute resolution procedures. It was written by a professor who is an active participant in law reform projects addressing the problems of elaborating legislation to articulate the rights and duties of parties involved in economic and other disputes. This Article covers three forms of dispute resolution—negotiations, claims-based dispute resolution, and mediation—and identifies characteristics of these procedures that are peculiar to the Russian context. By reviewing the forms of conflict resolution employed in Soviet-era command economy and exploring the contours of contemporary Russian "legal culture," the Article attempts …

Back To Prima Paint Corp. V. Flood & Conklin Manufacturing Co.: To Challenge An Arbitration Agreement You Must Challenge The Arbitration Agreement, Andre V. Egle

Washington Law Review

The Federal Arbitration Act (FAA) requires courts to order parties in a dispute arising out of a commercial contract containing an arbitration provision to proceed to arbitration unless the formation or performance of the arbitration agreement itself is at issue. In 1967, the U.S. Supreme Court held in Prima Paint Corp. v. Flood & Conklin Manufacturing Co. that under the FAA, courts, instead of arbitrators, should resolve claims for fraudulent inducement of arbitration agreements. However, courts were not permitted to resolve claims for fraud in the inducement of the underlying commercial contracts. The Court also held that when deciding whether …

Self-Deregulation, The "National Policy" Of The Supreme Court, Paul D. Carrington

Nevada Law Journal

No abstract provided.

New Era Of Disclosure: California Judicial Council Enacts Arbitrator Ethics Standards - Ethics Standards For Neutral Arbitrators In Contractual Arbitration, A, Keisha I. Patrick

Journal of Dispute Resolution

Although the current CJC ethics rules consist of seventeen standards and several subsections "intended to guide the conduct of arbitrators, '17 this Note will focus only on the disclosure requirements. The Note will also compare the CJC standards with disclosure rules that provider organizations have previously enacted.

The Problem With Arbitration Agreements, Stephen J. Choi

Vanderbilt Journal of Transnational Law

Arbitration procedures today have become highly standardized. Institutions such as the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), and the American Arbitration Association Center for International Dispute Resolution (AAA) each have detailed provisions for administering arbitration proceedings (often involving parties of different nationalities). Parties entering into arbitration can expect to have limited discovery, a hearing, and the ability to bring attorneys to the proceedings. While typically providing less process than formal court proceedings, the standardized nature of arbitration can lead parties to view arbitration much like court proceedings--a fixed, pre-determined process to settle disputes. Thomas …

Globalization Of Arbitral Procedure, Gabrielle Kaufmann-Kohler

Vanderbilt Journal of Transnational Law

Imagine attending hearings in three different arbitrations: one in Geneva, one in New York, and one in Hong Kong. All three hearings will likely involve the same hotel conference rooms, the same court reporters, the same language--English, the same types of oral submissions, witness examinations, expert presentations, and procedural arguments, and often even the same people. Does this mean that arbitral procedure is globalized '--that an arbitration is conducted in a uniform manner wherever it takes place, whatever national law governs? Does national law govern at all? This paper will discuss these issues.

Renegotiation And Adaptation Of International Investment Contracts, Klaus P. Berger

Vanderbilt Journal of Transnational Law

In modern-day international investment practice, especially in connection with the exploitation of natural resources, Production Sharing Agreements have come to take over the role of the classic concession agreement. Like their predecessors, these contracts are particularly vulnerable to disturbances in the commercial balance agreed to, or assumed by, the parties at the conclusion of the contract. This vulnerability has three primary causes.

First, these are classic examples of long term contracts. In the petroleum industry, the commitment of significant capital for exploration, particularly in development, and the assumption of considerable risk, particularly in exploration, require contracts covering up to and …

The Specificity Of International Arbitration: The Case For Faa Reform, William W. Park

Vanderbilt Journal of Transnational Law

Arbitration by its nature is polycentric: one might more accurately speak of arbitrations in the plural. A wide variety of disputes are included in one category, implicating differences related to the sophistication of the parties, the character of the disputes, and the public interests at stake. The current legal framework for arbitration conducted in the United States attempts to squeeze all types of arbitration into the Procrustean bed of a single set of standards for judicial review.

The United States should seriously consider eliminating judicial discretion to review the substantive merits of awards in international cases. The domestically nourished doctrine …

Out Of The Frying Pan, Into The Fire: The Feasibility Of Post-Dispute Employment Arbitration Agreements, Lewis L. Maltby

William Mitchell Law Review

Changing the law to enforce only post-dispute agreements to arbitrate will not solve the problems of arbitration as a condition of employment. This change would leave the majority of employees who need arbitration in order to obtain justice empty handed, which is a situation far worse than the one employees face today. Rather than change from one unacceptable option to another, models for voluntary pre-dispute arbitration agreements need to be further developed.

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

Vanderbilt Journal of Transnational Law

The privatization and contractualization of arbitration, while they empower parties and unburden public institutions, should not eliminate completely the basis for the public regulation of the process. The string of "one-off' arbitrations, gathered together, has consequences upon the public interest in the orderly administration of adjudicative relations in both domestic and international law. The use of arbitration does have a bearing upon the substantive content of legal rights. Judicial vigilance should not only ward off the flagrant abuses of process and procedure in arbitration, but it should also establish an "interests of justice" limitation upon the operation of the process …

The (Pre) (As) Sumed "Consent" Of Commercial Binding Arbitration Contracts: An Empirical Study Of Attitudes And Expectations Of Transactional Lawyers, 36 J. Marshall L. Rev. 589 (2003), Celeste M. Hammond

UIC Law Review

No abstract provided.

Centuries Of Contract Common Law Can't Be All Wrong: Why The Uma's Exception To Mediation Confidentiality In Enforcement Proceedings Should Be Embraced And Broadened, Peter Robinson

Journal of Dispute Resolution

The National Conference of Commissioners on Uniform State Laws and House of Delegates of the American Bar Association recently approved the Uniform Mediation Act ("UMA") with an eye toward unifying the law of mediation confidentiality in the United States. Soon, numerous states and other organizations will consider modifying statutes, court rules, or professional standards to conform to the UMA. One of the important aspects of mediation confidentiality is how it applies when enforcing a mediated agreement.' In some jurisdictions, mediation confidentiality interferes with the application of contract law when enforcing a mediated agreement to produce absurd results. This article will …