Law Commons^™

Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux

Publications

No abstract provided.

Raising The Bar For The Mens Rea Requirement In Common Intention Cases: Daniel Vijay S/O Katherasan V Pp, Eunice Chua

Research Collection Yong Pung How School Of Law

Recently, the Court of,4ppeal in Daniel Vijay s/o Katherasan v. Public Prosecutor took the view thatthe law on common intention was not adequately settled in Singapore despite the 138-year history ofs. 34 ofthe Penal Code. It went on to give an extensive review of the cases interpreting the section aswell as its Indian equivalent, before setting out the proper approach to take in "twin crime" commonintention cases, focusing specifically on the mens rea element required in order to establish constructiveliabilityfor the secondary crime. This case note seeks to highlight the changes brought about byDaniel Vijay s/o Katherasan v. Public Prosecutor …

Arbitral And Judicial Proceedings: Indistinguishable Justice Or Justice Denied?, Pat K. Chew

Articles

This is an exploratory study comparing the processes and outcomes in the arbitration and the litigation of workplace racial harassment cases. Drawing from an emerging large database of arbitral opinions, this article indicates that arbitration outcomes yield a lower percentage of employee successes than in litigation of these types of cases. At the same time, while arbitration proceedings have some of the same legal formalities (legal representation, legal briefs), they do not have other protective procedural safeguards.

Dismembering Families, Anthony C. Infanti

Book Chapters

In this paper, I explore how the deduction for extraordinary medical expenses, codified in I.R.C. section 213, furthers domination in American society. On its face, section 213 probably does not seem a likely candidate for being tagged as furthering domination. After all, this provision aims to alleviate extraordinary financial burdens on taxpayers who already suffer from significant medical problems -- and who, by definition, lack the help of insurance to relieve those burdens. But, as laudable as this goal might be, careful attention to the text and context of section 213 reveals that it does not apply to all taxpayers …

"We Can Work It Out": Using Cooperative Mediation--A Blend Of Collaborative Law And Traditional Mediation--To Resolve Divorce Disputes, Elena Langan

Scholarly Works

No abstract provided.

Sentencing Circles, Clashing Worldviews, And The Case Of Christopher Pauchay, Toby S. Goldbach

All Faculty Publications

The case of Christopher Pauchay demonstrates some of the differences between predominant Euro-Canadian and First Nations approaches to dispute resolution. The principles of sentencing circles sometimes overlap with the principles of restorative justice and suggest their potential incorporation into the criminal justice system. The use of alternative processes that share some common values is not enough to overcome to chasm between Euro-Western and Aboriginal justice. Where underlying worldviews diff er, those who can choose between competing values amidst limited possibilities will likely choose the values that refl ect the conventional system. A comparison of Euro-Western and Aboriginal approaches to crime …

Defining Civil Disputes: Lessons From Two Jurisdictions, Elizabeth G. Thornburg, Camille Cameron

Faculty Journal Articles and Book Chapters

Court systems have adopted a variety of mechanisms to narrow the issues in dispute and expedite litigation. This article analyses the largely unsuccessful attempts in two jurisdictions - the United States and Australia - to achieve early and efficient issue identification in civil disputes. Procedures that rely on pleadings to provide focus have failed for centuries, from the common (English) origins of these two systems to their divergent modern paths. Case management practices that are developing in the United States and Australia offer greater promise in the continuing quest for early, efficient dispute definition. Based on a historical and contemporary …

China's Turn Against Law, Carl F. Minzner

Faculty Scholarship

Chinese authorities are reconsidering legal reforms they enacted in the 1980s and 1990s. These reforms had emphasized law, litigation, and courts as institutions for resolving civil grievances between citizens and administrative grievances against the state. But social stability concerns have led top leaders to question these earlier reforms. Central Party leaders now fault legal reforms for insufficiently responding to (or even generating) surging numbers of petitions and protests.

Chinese authorities have now drastically altered course. Substantively, they are de-emphasizing the role of formal law and court adjudication. They are attempting to revive pre-1978 Maoist-style court mediation practices. Procedurally, Chinese authorities …

It’S A Small World After All: Cultural Competence For Advocates In Dispute Resolution Processes, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Cultural competence has become an ethical mandate for all neutrals and advocates who use dispute resolution. Even though conflict is a universal phenomenon, our expression and choice of how to resolve conflict is culture specific. As our world becomes increasingly smaller, and flatter, and our law practices become globalized, ethically responsible attorneys are recalibrating their ethical compass and replacing their ethnocentric lens with a culturally relative lens. Yes, even if you are a New York attorney who disavows any international practice and remains steadfastly tethered to the N.Y. Rules of Professional Conduct, you still need to be culturally competent. …

Mandatory Mediation And Its Variations, Nancy A. Welsh

Faculty Scholarship

The use of arbitration to resolve international investment disputes clearly represents an improvement over “gunboat diplomacy” and its implicit threat of violent confrontation. Nonetheless, investors, States and other stakeholders have begun to express dissatisfaction with some elements of arbitration in the international investment treaty context. First, arbitration proceedings can be quite lengthy, and their transaction costs seem to be increasing. Second, parties’ compliance is not guaranteed. Some States suggest they may refuse to abide by arbitral awards. Third, the process focuses parties on their legal rights when non-legal issues may be equally important and useful to achieve resolution. Fourth, arbitration …

Medellin And Sanchez-Llamas: Treaties From John Jay To John Roberts, Lori Fisler Damrosch

Faculty Scholarship

Medellin v. Texas and Sanchez-Llamas v. Oregon were the first opportunities for the U.S. Supreme Court to speak in the voice of Chief Justice John Roberts on several of the biggest questions at the connecting points between the U.S. legal order and the rest of the world. In writing for the majority in these cases, the new Chief Justice sent signals to several different audiences about whether and how the United States will fulfill its international obligations. The messages differ markedly from those sent by the divided Court in Hamdan v. Rumsfeld, in which Roberts did not participate. Hamdan was …

The Globalized Practice Of Law: Part Two - It’S A Small World After All: Cultural Competence With Your International Brethren, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Globalization is a “force majeure” that is growing and shaping the practice of law. As increasing numbers of New York lawyers represent clients in transnational and cross-border matters, many New York attorneys are welcoming the enriching perspectives that their international brethren bring to deal making and dispute resolution. However, culturally competent lawyers are also cognizant of how the different and sometimes disparate ethical obligations and values held by their colleagues from civil law countries are influencing and, at times, complicating their dispute resolution efforts. In the previous column, I discussed how our perceptions, communications and preferential modes for resolving …

Reconciling European Union Law Demands With The Demands Of International Arbitration, George A. Bermann

Faculty Scholarship

European Union ("EU" or "Union") law and the law of international arbitration have traditionally occupied largely separate worlds, as if arbitral tribunals would rarely be the fora for the resolution of EU law claims and as if EU law, in turn, had little concern with arbitration. For several reasons, this pattern has recently been altered, although the relationship between EU law and international arbitration law is at present anything but settled. From the present perspective, the past looks like an age of innocence, for as these two worlds have begun to intersect, they have not done so entirely harmoniously.

Part …

The Uk Supreme Court Speaks To International Arbitration: Learning From The Dallah Case, George A. Bermann

Faculty Scholarship

Rarely, over the decades following its entry into force, was the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, or New York Convention, the subject of a judgment of the UK House of Lords. Yet, within barely over a year after its succession to the House of Lords in October 2009, the United Kingdom Supreme Court delivered a judgment that may not make up for all that lost time, but is deeply instructive nonetheless. The decision in Dallah Real Estate and Tourism Holding Company v. Ministry of Religious Affairs, Government of Pakistan became the vehicle …

The Wto Dispute Settlement System 1995-2010: Some Descriptive Statistics, Henrik Horn, Louise Johannesson, Petros C. Mavroidis

Faculty Scholarship

The Dispute Settlement (DS) system is a central feature of the World Trade Organization (WTO) Agreement. This compulsory and binding two-level mechanism for the adjudication of disputes between WTO Members is the most active among international courts. The functioning of the DS system has attractive research interest among both lawyers and economists. This paper reports some descriptive statistics of the working of the DS system based on the recently updated Horn and Mavroidis WTO Dispute Settlement Data Set. The data set covers all 426 WTO disputes initiated through the official filing of a Request for Consultations from January 1, 1995, …

The Supreme Court Trilogy And Its Impact On U.S. Arbitration Law, George A. Bermann

Faculty Scholarship

The Supreme Court’s most recent “trilogy” of arbitration law rulings – Stolt-Nielsen, Rent-A-Center and AT&T Mobility v. Concepcion – deserves the lavish attention it has been receiving, as evidenced by the contributions of Tom Stipanowich and Alan Rau in this special issue. Professors Stipanowich and Rau rightly view the three rulings as “of a piece,” revealing a determination on the part of the Court’s majority to enhance the autonomy and effectiveness of arbitration as a dispute resolution mechanism, even at the expense of consumer welfare. The trilogy has the result, and most likely the purpose, of weakening safeguards that …

Mediating Multiculturally: Culture And The Ethical Mediator, Carrie Menkel-Meadow, Harold I. Abramson

Georgetown Law Faculty Publications and Other Works

This commentary on mediating multiculturally in a chapter of Mediation Ethics (edited by Ellen Waldman) suggests there are times when mediators should not mediate, because of their own ethical commitments. Commenting on a hypothetical divorce scenario (of Ziba, a 17 year old from her 44 year old husband, with two children aged 3 and 2, where the parties claim to want Shari’a principles to apply), the author (Carrie Menkel-Meadow) suggests that she would not mediate a case which might violate formal laws (American marriage and divorce laws) or infringe on rights that one of the parties might not be fully …

Give Peace A Chance: A Guide To Mediating Child Welfare Cases, Jennifer Baum

Faculty Publications

(Excerpt)

Would you like to speed up your cases, achieve more satisfying results for your clients, and cut back on needlessly polarizing motion practice? Since its introduction in the 1980s, child welfare mediation has helped attorneys do just that by facilitating resolutions in child protective disputes more quickly, less contentiously, and with more acceptance from stakeholders than its courtroom alternative, adversarial litigation.

If you've handled dependency cases for any length of time, you are already familiar with the crushing caseloads, emotional volatility, and high-stakes decision-making that are the hallmarks of child welfare litigation. In a growing number of jurisdictions, attorneys …