Law Commons^™

Financial Services In The United States And United Kingdom: Comparative Approaches To Securities Regulation And Dispute Resolution, Cory Alpert

Brigham Young University International Law & Management Review

No abstract provided.

Mandatory Arbitration For Customers But Not For Peers: A Study Of Arbitration Clauses In Consumer And Non-Consumer Contracts, Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin

Cornell Law Faculty Publications

We conducted a study of contractual practices by well-known firms marketing consumer products, comparing the firms' consumer contracts with contracts the same firms negotiated with business peers. The frequency of arbitration clauses in consumer contracts has been studied before, as has the frequency of arbitration clauses in non-consumer contracts. Our study is the first to compare the use of arbitration clauses within firms, in different contractual contexts.

The results are striking: in our sample, mandatory arbitration clauses appeared in more than three-quarters of consumer contracts and less than one tenth of non-consumer contracts (excluding employment contracts) negotiated by the same …

El Fallo Ate Y Sus Circunstancias (Elementos Para Su Estudio), Horacio M. Lynch

Horacio M. LYNCH

Estudio sobre el histórico fallo de la Corte Suprema sobre la libertad sindical (el fallo ATE).

Summary Of Five Star Capital Corp. V. Ruby, 124 Nev. Adv. Op. No. 88, Michelle D. Alarie

Nevada Supreme Court Summaries

Appeal from a district court’s grant of summary judgment against petitioner Five Star Capital Corp. for bringing a second lawsuit barred by res judicata.

Bits, Ippas, Trips And Icsid: Justice For Some, Alphabet Soup For All, Christopher Wadlow

Christopher Wadlow

Examines the possibility that ICSID (the International Centre for Settlement of Investment Disputes) might be a more favourable forum than the WTO for private party complaints of violations of the TRIPs Agreement, if the state conduct alleged to violate TRIPs amounted to expropriation or breach of the principle of fair and equitable treatment.

Bill Would Encourage Effective Dispute Resolution, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

Many of the processes involved in traditional local land use review procedures involve two or more adversarial parties arguing their position with little to no consideration for the other party’s interest, and no regard for mutually beneficial outcome. This article describes a proposed New York law that would promote the use of mediation to supplement the traditional process. The article discusses studies geared towards testing the effectiveness of mediation, gives a review of out of state mediation legislation, as discusses corresponding court decisions. Finally, the article concludes with a review of the traditional roles of lawyers in the process, and …

Was Machiavelli Right? Lying In Negotiation And The Art Of Defensive Self-Help, Peter Reilly

Faculty Scholarship

The majority of law review articles addressing lying and deception in negotiation have argued, in one form or another, that liars and deceivers could be successfully reined in and controlled if only the applicable ethics rules were strengthened, and if corresponding enforcement powers were sufficiently beefed up and effectively executed. This article takes a different approach, arguing that the applicable ethics rules will likely never be strengthened, and, furthermore, that even if they were, they would be difficult to enforce in any meaningful way, at least in the context of negotiation. The article concludes that lawyers, businesspeople, and everyone else …

Reporting On Palin: Negotiations In Political Theater, Erin Ryan

Erin Ryan

C-Drum News, V. 2, No. 1, Fall 2008

The C-DRUM News

No abstract provided.

Curing Consumer Warranty Woes Through Regulated Arbitration, Amy J. Schmitz

Faculty Publications

This article proposes legislative procedural reforms accounting for the realities of consumer arbitration that have threatened and denied consumers' access to remedies for companies' violations of public, or statutory, warranty remedies under the Magnuson-Moss Warranty Act (MMWA). Furthermore, the Article proposes to clarify and expand the MMWA's current dispute resolution template in order to resolve judicial disagreement regarding the template's application and foster beneficial use of finding arbitration. Accordingly, this is not a call to ban all pre-dispute arbitration clauses in consumer contracts, but is instead an invitation for more politically palatable reforms that preserve both companies' savings and consumers' …

Enforcing Class Arbitration In The International Sphere: Due Process And Public Policy Concerns, S. I. Strong

Faculty Publications

This article appears to be the first to address the unique issues relating to international class arbitration and to discuss the status of class arbitration in other countries. To date, the only published articles on class arbitration - a dispute resolution mechanism that has been in existence in the United States since the early 1980s - have focused on domestic arbitration. However, with a number of known international class arbitrations in progress, all seated in the United States, questions concerning the transnational legitimacy of the class arbitration process and the ability to enforce class awards under the New York Convention …

Ethical Considerations In Drafting And Enforcing Consumer Arbitration Clauses, Amy J. Schmitz

Faculty Publications

Attorneys face mixed messages regarding consumer arbitration: Mixed professional responsibility rules; mixed legal enforcement; mixed messages from commentators and policymakers; mixed evidence regarding efficiency, cost-savings and fairness. It is therefore doubtful that attorneys would face discipline for drafting or enforcing onerous consumer arbitration provisions they believe in good faith to be lawful. Professional discipline rules, however, merely set the floor for ethical conduct and can only go so far in dictating morals or teaching values. Indeed, an attorney's commitment to ethics and public service "must begin at home." Moreover, the bottom line is: "If you have the wrong values, your …

Summary Of Anse, Inc. V. Eighth Judicial Dist. Court Of State Ex Rel. County Of Clark, 124 Nev. Adv. Op. No. 74, Joanna M. Myers

Nevada Supreme Court Summaries

No abstract provided.

Summary Of Barney V. Mt. Rose Heating & Air Conditioning, 124 Nev. Adv. Op. No. 71, Elena Roberts

Nevada Supreme Court Summaries

No abstract provided.

The Effective Reach Of Choice Of Law Agreements, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

Two fundamental principles relating to party autonomy developed in the recent history of the conflict of laws. Despite initial reservations, the law today takes for granted that the parties’ agreement is nearly conclusive in respect of both their choice of litigation forum and their choice of the law governing the contractual relationship. Meanwhile, the law of obligations – in tort, restitution and equity – has grown apace; disputes between contracting parties today are rarely confined to pure contractual issues. Can contracting parties choose the law to govern non-contractual disputes in cross-border litigation? In the absence of such choice, to what …

The Mediation Metamodel: Understanding Practice, Nadja Alexander

Research Collection Yong Pung How School Of Law

The mediation metamodel provides a systematic framework for understanding mediation as it is practiced in a variety of professional and cultural contexts. Six mediation practices are introduced within the framework of the metamodel: settlement mediation, facilitative mediation, transformative mediation, expert advisory mediation, wise counsel mediation, and tradition-based mediation. The relationships of these different practices to one another are explored and the assumptions underlying them are examined with reference to the literature. The metamodel provides orientation in the dispute resolution field not only for mediators, parties, and their lawyers, but also for regulators, referring bodies, researchers, and students of mediation.

Law And Legal Process In The Resolution Of International Conflicts, Michelle Gallant

Michelle Gallant

Law casts its shadow on virtually all areas of human conflict. The dissolution of marriage and the resolution of familial obligations and property rights upon the breakdown of personal relationships occur against the backdrop of a legal framework. Conflicts with a state over access to public resources or the rights of defendants in a criminal trial are regulated and resolved within the context of constitutionally-binding legal norms and domestic human rights instruments. Tensions between competing corporate enterprises over injury to financial interests or access to markets are determined in accordance with the legal principles that govern contracts and commercial affairs. …

Cultural Conflicts, Annelise Riles

Cornell Law Faculty Publications

This article builds upon insights from contemporary anthropology to rethink the field of conflicts as a matter of cultural conflict. This approach shifts the analysis away from the dominant approaches in the discipline, which take as their primary metric either questions of state power or of individual rights. Drawing on a case of conflict between Native American legal norms and U.S. state and federal law, this article argues for a conflicts methodology that takes seriously the role of cultural description in the process of cultural adjudication. To do so, in turn will require us to adopt a more sophisticated, flexible, …

The Mediator As Fugu Chef: Preserving Protections Without Poisoning The Process, Maureen Laflin

Articles

No abstract provided.

Arbitration Costs And Forum Accessibility: Empirical Evidence, Christopher R. Drahozal

University of Michigan Journal of Law Reform

In this Article, written for this symposium issue on "Empirical Studies of Mandatory Arbitration," I examine the available empirical evidence on these two questions. I take "mandatory arbitration" to refer to pre-dispute arbitration clauses in consumer and employment (and maybe franchise) contracts. Accordingly, I limit my consideration of the empirical evidence to those types of contracts. I do not discuss empirical studies of international arbitrations, which almost always arise out of agreements between commercial entities. Nor do I discuss empirical studies of court-annexed arbitrations, which may not derive from party agreement and do not ordinarily proceed to a binding award.

Arbitration's Summer Soldiers: An Empirical Study Of Arbitration Clauses In Consumer And Nonconsumer Contracts, Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin

University of Michigan Journal of Law Reform

We provide the first study of varying use of arbitration clauses across contracts within the same firms. Using a sample of 26 consumer contracts and 164 nonconsumer contracts from large public corporations, we compared the use of arbitration clauses in firms' consumer and nonconsumer contracts. Over three-quarters of the consumer agreements provided for mandatory arbitration but less than 10% of the firms' material nonconsumer, nonemployment contracts included arbitration clauses. The absence of arbitration provisions in the vast majority of material contracts suggests that, ex ante, many firms value, even prefer, litigation over arbitration to resolve disputes with peers. Our data …

From Court-Surrogate To Regulatory Tool: Re-Framing The Empirical Study Of Employment Arbitration, W. Mark C. Weidemaier

University of Michigan Journal of Law Reform

A growing body of empirical research explores the use of arbitration to resolve employment disputes, typically by comparing arbitration to litigation using relatively traditional outcome measures: who wins, how much, and how quickly. On the whole, this research suggests that employees fare reasonably well in arbitration. Yet there remain sizeable gaps in our knowledge. This Article explores these gaps with two goals in mind. The first and narrower goal is to explain why it remains exceedingly difficult to assess the relative fairness of arbitration and litigation. The outcome research does not account for a variety of 'filtering" mechanisms that influence …

Confronting Adr Agreements' Contract/No-Contract Conundrum With Good Faith, Amy J. Schmitz

Faculty Publications

This Article explores the intricate problem, or conundrum, of enforcing "Alternative Dispute Resolution ('ADR') agreements" that require mediation or other non-binding dispute resolution procedures. Although public policy supports ADR, courts' inadequate analysis of ADR agreements is threatening their vitality. Instead of properly considering the flexible nature of these agreements, courts assume formalist contract or no-contract conclusions similar to those they impose on what Professor Charles Knapp has termed "contracts to bargain." ADR agreements and other contracts to bargain pose enforcement problems because they require parties' cooperation without specifying what cooperation means or how to enforce such flexible duties. This Article …

How Bad Are Mandatory Arbitration Terms?, Omri Ben-Shahar

University of Michigan Journal of Law Reform

This symposium was presented in the 2008 Annual Meeting of the Contracts Section of the American Association of Law Schools. Indeed, studying the unconscionability of arbitration terms has become a standard feature of first-year contracts courses. This is perhaps one of the hotter topics in today's contract law and policy. Contractual rights, as they are enforced by contract law, might have substantially different values depending on the venue through which they can be vindicated. It is hard to predict how these values differ, but hopefully this symposium will inform some of these predictions.

When Perception Changes Reality: An Empirical Study Of Investors' Views Of The Fairness Of Securities Arbitration, Jill I. Gross, Barbara Black

Journal of Dispute Resolution

Arbitration in securities industry-sponsored forums is the primary mechanism to resolve disputes between investors and their brokerage firms. Because it is mandatory, participants debate its fairness, and Congress has introduced legislation to ban pre-dispute arbitration clauses in customer agreements. Missing from the debate has been empirical research of perceptions of fairness by the participants, especially investors. To fill that gap, we mailed 25,000 surveys to participants in recent securities arbitrations involving customers to learn their views of the process. The article first details the survey's background, explains the importance of surveying perceptions of fairness, and describes our methodologies, procedures, and …

Expanding The Use Of Collaborative Law: Consideration Of Its Use In A Legal Aid Program For Resolving Family Law Disputes, Lawrence P. Mclellan

Journal of Dispute Resolution

From Perry Mason and Law & Order to Judge Judy, many American consumers believe that legal conflict is resolved by trial--exciting, antagonistic, adversarial fights between lawyers. Yet common experience and research demonstrate that most legal conflict is not resolved between gladiators in the courtroom.' Many consumers come to the legal process with this Hollywood portrayal as their only knowledge of the process. Those engaged in the legal process know that there are alternatives to the courtroom for resolving dispute. Finding alternatives to litigation is especially important for legal aid programs, as the increased time and expense of litigation reduces the …

Philippine Community Mediation, Katarungang Pambarangay, Gill Marvel P. Tabucanon, James A. Wall Jr., Wan Yan

Journal of Dispute Resolution

First, we present a brief overview of the process, followed by a delineation of the history, purpose, operational structure, jurisdiction, venue, procedure, and time frame for this mediation approach. Finally, we report on interviews we conducted with mediators who have served on these panels. Their accounts reveal intriguing details as to how the mediation process unfolds and the benefits of this dispute resolution process. Our goals in this article are threefold: (1) to describe this grassroots mediation approach; (2) to expand our knowledge about mediation; and (3) to reflect on the advantages of this approach so as to improve mediation …

Elevator Company Goes Down: Mandatory Arbitration Provisions As Applied To Pending Civil Rights Claims In The Employment Context, Miranda Fleschert

Journal of Dispute Resolution

In Goldsmith v. Bagby Elevator Company, the Eleventh Circuit Court of Appeals carved a distinction in the employment context between mandatory predispute arbitration agreements and compulsory arbitration agreements as applied to pending claims of discrimination. In doing so, the court warns employers that any effort to terminate an employee's rights with respect to a pending Equal Employment Opportunity Commission ("EEOC") claim by instituting a mandatory arbitration provision will be seen as impermissibly retaliatory. Amid the backdrop of a case in which supervisors routinely called black employees "monkeys," "slaves," and "niggers," the court makes a well-meaning attempt at preserving employees' statutorily …

No Exceptions: How The Legitimate Business Justification For Unconscionability Only Further Demonstrates California Courts' Disdain For Arbitration Agreements, Thomas H. Riske

Journal of Dispute Resolution

In Davis v. O'Melveny & Myers, the Ninth Circuit Court of Appeals considered whether an arbitration agreement adopted by a law firm and distributed to its employees was enforceable. When interpreting an arbitration agreement, how the contract doctrine of unconscionability should be applied by state courts, is an essential element of this case. While the Federal Arbitration Act ("FAA") has been interpreted to preempt any state law in conflict with it, state laws governing the necessary foundation to revoke a contract remain unaffected. In considering these principles, state courts have applied the doctrine of unconscionability to arbitration agreements in the …

Knowing And Voluntary Standard: Is The Sixth Circuit's Test Enough To Level The Playing Field In Mandatory Employment Arbitration, The, Christina Semmer

Journal of Dispute Resolution

Most courts require that for an individual to waive her Seventh Amendment right to trial by jury, she must knowingly and voluntarily waive that right. This heightened requirement for waiver exists because the United States Supreme Court has found that "[tlhe trial by jury is justly dear to the American people... and every encroachment upon it has been watched with great jealousy." Seemingly this standard should apply to mandatory employment arbitration agreements, as shifting the venue from the courts to the arbitral tribunal implicitly means waiving the right to trial by jury. However, because the Federal Arbitration Act ("FAA") requires …