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Articles 1 - 30 of 43
Full-Text Articles in Law
Apology And Organizations: Exploring An Example From Medical Practice, Jonathan R. Cohen
Apology And Organizations: Exploring An Example From Medical Practice, Jonathan R. Cohen
UF Law Faculty Publications
In this Article, I focus on injuries committed by members of organizations, such as corporations, and examine distinct issues raised by apology in the organizational setting. In particular, I consider: (i) the process of learning to prevent future errors; (ii) the divergent interests stemming from principal-agent tensions in employment, risk preferences and sources of insurance; (iii) the non-pecuniary benefits to corporate morale, productivity and reputation; (iv) the standing and scope of apologies; and (v) the articulation of policies toward injuries to others.
Getting The Faith: Why Business Lawyers And Executives Believe In Mediation, John M. Lande
Getting The Faith: Why Business Lawyers And Executives Believe In Mediation, John M. Lande
Faculty Publications
Do you believe in mediation? That may seem like an odd question. Normally one thinks of ‘believing in‘ (or having faith in) things like magic, God, or the market. These are typically things that are beyond verifiable human knowledge (such as magic and God) and/or deeply held values (such as whether the market is a better mechanism than government for managing the flow of goods and services). At first blush, one might not think that mediation would fall into either category. There have been numerous empirical studies about many different aspects of mediation, so one can confidently say, for example, …
Dispute Resolution In Cyberspace: Demand For New Forms Of Adr, Henry H. Perritt Jr.
Dispute Resolution In Cyberspace: Demand For New Forms Of Adr, Henry H. Perritt Jr.
All Faculty Scholarship
No abstract provided.
German Law Paves The Way For Mandatory Mediation, Nadja Alexander
German Law Paves The Way For Mandatory Mediation, Nadja Alexander
Research Collection Yong Pung How School Of Law
Effective as of 1 January 2000, the Federal Government of Germany has introduced legislation permitting all German states (Laender) to introduce mandatory court-connected mediation with respect to certain kinds of civil disputes.
The World Trade Constitution, John O. Mcginnis, Mark L. Movsesian
The World Trade Constitution, John O. Mcginnis, Mark L. Movsesian
Faculty Publications
Conventional wisdom holds that the World Trade Organization (WTO) necessarily poses a threat to sovereignty and representative government within its member nations. Professors McGinnis and Movsesian refute this view. They argue that the WTO can be understood as a constitutive structure that, by reducing the power of protectionist interest groups, can simultaneously promote international trade and domestic democracy. Indeed, in promoting both free trade and accountable government, the WTO reflects many of the insights that inform our own Madisonian Constitution. Professors McGinnis and Movsesian reject recent proposals to grant the WTO regulatory authority, endorsing instead the WTO's limited adjudicative power …
Arbitration And Judicial Review, Theodore J. St. Antoine
Arbitration And Judicial Review, Theodore J. St. Antoine
Other Publications
A quarter century ago, in a presentation at the Academy's annual meeting, I used the phrase "contract reader" to characterize the role an arbitrator plays in construing a collective bargaining agreement. That two-word phrase may be the only thing I ever said before this body that has been remembered. Unfortunately, it is almost invariably misunderstood. Time and again members have reproached me: "What's the big deal about contract reading, anyway? Isn't it just the same as contract interpretation?" Or, more substantively scathing: "Do you really think, Ted, that all you have to do to interpret a labor agreement is to …
Public Policy Defense In International Commercial Arbitration, Mingqiang Qian
Public Policy Defense In International Commercial Arbitration, Mingqiang Qian
LLM Theses and Essays
The purpose of this thesis is to examine how public policy defense functions in international commercial arbitration and whether it will block the development of international commercial arbitration. Chapter II deals with the role of public policy in international private law. This chapter examines the origins of public policy in common law countries and its functions in international private law. It is difficult to evaluate public policy as a precise concept because of its relative nature. Nevertheless, to limit its application in international private law, legal scholars have tried to clarify differences between domestic public policy, international public policy, and …
Ph.D. In Dispute Resolution Student Handbook, Nova Southeastern University
Ph.D. In Dispute Resolution Student Handbook, Nova Southeastern University
College of Arts, Humanities, and Social Sciences Course Catalogs
No abstract provided.
School Of Social And Systemic Studies Catalog 2000-2001, Nova Southeastern University
School Of Social And Systemic Studies Catalog 2000-2001, Nova Southeastern University
College of Arts, Humanities, and Social Sciences Course Catalogs
No abstract provided.
Alternative Dispute Resolution And The Potential For Gender Bias, Leigh S. Goodmark
Alternative Dispute Resolution And The Potential For Gender Bias, Leigh S. Goodmark
Faculty Scholarship
No abstract provided.
The Annihilation Of Sea Turtles: Wto Intransigence And U.S. Equivocation, Lakshman Guruswamy
The Annihilation Of Sea Turtles: Wto Intransigence And U.S. Equivocation, Lakshman Guruswamy
Publications
No abstract provided.
The Liability Of International Arbitrators: A Comparative Analysis And Proposal For Qualified Immunity, Susan Franck
The Liability Of International Arbitrators: A Comparative Analysis And Proposal For Qualified Immunity, Susan Franck
Articles in Law Reviews & Other Academic Journals
With the advent of the global economy and the increasing number of international commercial transactions, arbitration has become an important dispute resolution option. Arbitration is traditionally extolled because it helps to resolve commercial disputes economically, confidentially, and finally within a neutral forum.' Additionally, unlike national court judgments, arbitration provides an internationally recognized method for enforcing awards.' As a result of these benefits, arbitration is now the preferred dispute resolution mechanism for international commercial disagreements. Unfortunately, because of perceived misconduct by arbitrators and the risk of party manipulation, the arbitration process has come under increasing attack through civil actions against arbitrators.
Toward More Sophisticated Mediation Theory, John M. Lande
Toward More Sophisticated Mediation Theory, John M. Lande
Faculty Publications
In the lead article in this symposium, Professor Jeffrey Stempel provides a very thoughtful analysis of the mediation field. He focuses on the debate over facilitative and evaluative mediation and he is critical of many of the arguments made by proponents of facilitative mediation. I have expressed some similar concerns, and I generally agree with his analysis (with a quibble here and there). I do think that the facilitation-evaluation debate has been productive (though admittedly wearisome), and that proponents of facilitative mediation deserve more credit than he gives them in his article.
The Role Of Dispute Settlement In World Trade Law: Some Lessons From The Kodak-Fuji Dispute, John Linarelli
The Role Of Dispute Settlement In World Trade Law: Some Lessons From The Kodak-Fuji Dispute, John Linarelli
Scholarly Works
No abstract provided.
Framing Frivolous Litigation: A Psychological Theory, Chris Guthrie
Framing Frivolous Litigation: A Psychological Theory, Chris Guthrie
Vanderbilt Law School Faculty Publications
This Article uses an often-overlooked component of prospect theory to develop a positive theory of frivolous or low-probability litigation. The proposed Frivolous Framing Theory posits that the decision frame in frivolous litigation induces risk-seeking behavior in plaintiffs and risk averse behavior in defendants. Because plaintiffs in frivolous litigation have a greater tolerance for risk than the defendants they have sued, plaintiffs in frivolous litigation have "psychological leverage" in settlement negotiations, which is likely to lead to plaintiff-friendly settlements or bargaining impasse. This in turn, suggests that reformers concerned about frivolous litigation should target reform efforts at plaintiffs' decisionmaking in frivolous …
Using Bargaining For Advantage In Law School Negotiation Courses, Chris Guthrie
Using Bargaining For Advantage In Law School Negotiation Courses, Chris Guthrie
Vanderbilt Law School Faculty Publications
Options, options, options ....The Negotiation literature-at least the "problem-solving" or "interestbased" or "principled" negotiation literature'repeats this mantra over and over and over. It seems self-evident that having lots of options is a good idea because more options means more to choose from. The more options there are to choose from, however, the more difficult choosing can be. Options, in short, may increase the likelihood that one will make an optimal decision, but they impose added "decision costs" on the decision maker. Law professors now face this happy dilemma when choosing materials for their Negotiation courses. Options abound-including the negotiation chapters …
Negligent Retention And Arbitration: The Effect Of A Developing Tort On Traditional Labor Law, Terry A. Bethel
Negligent Retention And Arbitration: The Effect Of A Developing Tort On Traditional Labor Law, Terry A. Bethel
Articles by Maurer Faculty
No abstract provided.
Adr, The Judiciary And Justice: Coming To Terms With The Alternatives, Erin Ryan
Adr, The Judiciary And Justice: Coming To Terms With The Alternatives, Erin Ryan
Faculty Publications
No abstract provided.
Fighting Arbitration Clauses In Franchisor Contracts, Jean R. Sternlight
Fighting Arbitration Clauses In Franchisor Contracts, Jean R. Sternlight
Scholarly Works
Purporting to serve justice, efficiency, and freedom of contract, business interests are increasingly attempting to use binding arbitration clauses to secure unfair advantages over unknowing parties. Courts seemingly have been eager to enforce arbitration clauses that appear in franchise agreements. This article discusses courts’ enforcement of arbitration clauses, undermining protections to the franchisee, and how franchisees can create a more level playing field.
Reasons Within Passions: Emotions And Intentions In Property Rights Bargaining, Peter H. Huang
Reasons Within Passions: Emotions And Intentions In Property Rights Bargaining, Peter H. Huang
Publications
This article discusses the role of emotions (or feelings or affects) in property rights bargaining. Real world people choose bargaining strategies based upon not only rational calculations, but also their gut feelings. This article considers the impact of anger and shame on bargaining over property rights and the Coase theorem. Such emotions may depend on beliefs (expectations or assessments) about whether particular strategic decisions should or will occur. Such beliefs can be viewed as attributions over the intentions of others.
Promoting The Best Interests Of Children Whose Parents Are Divorcing: The Next Steps For Arkansas, Kenneth S. Gallant
Promoting The Best Interests Of Children Whose Parents Are Divorcing: The Next Steps For Arkansas, Kenneth S. Gallant
Faculty Scholarship
No abstract provided.
Preserving The Integrity Of Mediation Through The Adoption Of Ethical Rules For Lawyer-Mediators, Maureen Laflin
Preserving The Integrity Of Mediation Through The Adoption Of Ethical Rules For Lawyer-Mediators, Maureen Laflin
Articles
No abstract provided.
Judicial Review Of Arbitration Awards On Public Policy Grounds: Lessons From The Case Law, Ann C. Hodges
Judicial Review Of Arbitration Awards On Public Policy Grounds: Lessons From The Case Law, Ann C. Hodges
Law Faculty Publications
A review of the case law demonstrates that most of the labor arbitration awards challenged on public policy grounds involve reinstatement of discharged employees. This article analyzes 138 private sector federal cases in which labor arbitration ·awards have been contested on public policy grounds. All the cases reviewed are discharge cases in which arbitration awards reversing the terminations were challenged. The article attempts to determine the factors that influence courts to uphold or overturn arbitration awards. This analysis will provide assistance to arbitrators in writing opinions that are less subject to challenge, and to employers, unions, and their attorneys in …
Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stempel
Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stempel
Scholarly Works
Some people (lawyers, scholars, judges, dispute resolvers, policymakers) are more concerned about fidelity to procedural protocols while others are more concerned with the substantive rules governing disputes and substantive outcomes. Those in the dispute resolution community preferring facilitation tend to be proceduralists. For them, the observance of proper procedure is a high goal, perhaps the dominant goal. They reason, often implicitly, that adherence to the rules of procedure is the essence of neutrality, fairness, and the proper role of a dispute resolving apparatus. At some level, usually subconscious, there is a post-modern philosophical aspect of this preference. Because humans cannot …
The Inevitability Of The Eclectic: Liberating Adr From Ideology, Jeffrey W. Stempel
The Inevitability Of The Eclectic: Liberating Adr From Ideology, Jeffrey W. Stempel
Scholarly Works
The problem with viewing facilitation as the only legitimate form of mediation, of course, is that it borders on tautology: mediation is nonevaluative, therefore any evaluation in mediation must be impermissible. Although this view remains strongly held in many quarters, it appears to be in retreat, both within the mediation community and in the legal community at large. Courts and commentators have shown increasing favor toward some evaluative or advising component of mediation. More important, the eclectic style appears to be what takes place in the metaphorical trenches of mediation practice (although sound empirical data is necessarily hard to obtain …
Protecting Franchisees From Abusive Arbitration Clauses, Jean R. Sternlight
Protecting Franchisees From Abusive Arbitration Clauses, Jean R. Sternlight
Scholarly Works
This article sets out a number of legal arguments that franchisees can potentially use to defeat arbitration clauses that seek to accomplish ends that would not be permissible in litigation. Drawing from decisions protecting consumers and employees from unfair arbitration clauses, as well as from opinions in the franchise context, this article analyzes arguments that can be based on the U.S. Constitution, federal statutes, state statutes, and common law. By way of this analysis, it suggests that some courts are misapplying arbitration precedents and preemption arguments to support decisions that allow franchisors to effectively exempt themselves from legislation and even …
Is Binding Arbitration A Form Of Adr?: An Argument That The Term "Adr" Has Begun To Outlive Its Usefulness, Jean R. Sternlight
Is Binding Arbitration A Form Of Adr?: An Argument That The Term "Adr" Has Begun To Outlive Its Usefulness, Jean R. Sternlight
Scholarly Works
Professor Frank Sander has, for many years, been one of the most prescient commentators on the alternative dispute resolution ("ADR") movement. His 1976 Pound Conference speech has been identified by many as marking the birth of the modern ADR phenomena. That speech, which compared some of the pros and cons of litigation and an array of other dispute resolution processes, has been summarized as proposing the concept of the "multi-door courthouse." In contrast, Professor Sander's more recent and very interesting review of the present and future of ADR makes little attempt to distinguish between mediation and binding arbitration, the two …
As Mandatory Binding Arbitration Meets The Class Action, Will The Class Action Survive?, Jean R. Sternlight
As Mandatory Binding Arbitration Meets The Class Action, Will The Class Action Survive?, Jean R. Sternlight
Scholarly Works
Assuming that the traditional prerequisites for a class action have been met, courts have four choices: (1) order the dispute to be resolved in an individualized arbitration, thereby denying plaintiffs either a litigation or arbitration venue for their class claims; (2) refuse to mandate arbitration, and instead allow plaintiffs to litigate their class claims; (3) order that the dispute be resolved through an arbitral class action, also known as classwide arbitration; or (4) order the dispute to arbitration but allow the arbitrators to make the determination as to whether the dispute should be resolved individually or on a class basis. …
International Commercial Arbitration: A Case Study Of The Areas Under Control Of The Palestinian Authority, Marshall J. Breger
International Commercial Arbitration: A Case Study Of The Areas Under Control Of The Palestinian Authority, Marshall J. Breger
Scholarly Articles
One necessary component to the success of the Israeli-Palestinian peace process is economic development and growth in the area under the control of the Palestinian Authority (PA). One of the principal requirements for economic growth, and quite possibly for the Palestinian Authority's economic survival, is foreign investment in the West Bank and Gaza (WBG). As they currently exist, laws concerning foreign investment in WBG are a quagmire. Indeed, it is a challenge for an investor to simply identify which law applies to which area, let alone to interpret the law. At the same time many of the protections often found …
Can Informed Consent Preserve The Integrity Of Mediation?, Maureen Laflin
Can Informed Consent Preserve The Integrity Of Mediation?, Maureen Laflin
Articles
No abstract provided.