Law Commons^™

Partnership Derivative Suits: Jennings V. Kay Jennings Ltd. P'Ship, Patricia Collins Mccullagh

University of Richmond Law Review

No abstract provided.

Arbitration Awards In An Environment Of Compulsory Unionization: Is The High Degree Of Deference Warranted?, Nephi Hardman

BYU Law Review

No abstract provided.

An End To Grazing Lease Litigation: An Examination Of Alternative Dispute Resolution Schemes That Could Resolve The Overgrazing Dispute On State And Federally Owned Rangelands In The Western United States, Jamie Pool

Pace Environmental Law Review

No abstract provided.

International Rule Of Law And Constitutional Justice In International Investment Law And Arbitration, Ernst-Ulrich Petersmann

Indiana Journal of Global Legal Studies

Judicial administration of justice through reasoned interpretation, application and clarification of legal principles and rules is among the oldest paradigms of constitutional justice. The principles of procedural justice underlying investor-state arbitration remain controversial, especially if confidentiality and party autonomy governing commercial arbitration risk neglecting adversely affected third parties and public interests. There are also concerns that rule-following and formal equality of foreign investors and home states may not ensure substantive justice in the settlement of investment disputes unless arbitrators and courts take more seriously their customary law obligation of settling disputes in conformity with human rights obligations of governments and …

Collaboration: The Future Of Governance, Philip J. Harter

Journal of Dispute Resolution

The thesis of this paper is that collaboration-the public and private spheres working together while recognizing the legitimate role of each-should play a major role in making these important decisions. Can collaboration diminish the rancor? Certainly not on its own, but it can lead people to recognize that others are listening and trying to reach appropriate decisions. That alone has powerful political consequences.' Should the procedures described here be used for all public decisions? Of course not. But they should be considered for major ones precisely because they are effective, and a form of collaboration-a recognition that others have important …

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.

Administrative Law And Culture For The U.S. Collaborative Governance State, David H. Rosenbloomn, Mei Jen Hung

Journal of Dispute Resolution

During the 1980s and 1990s, collaborative governance emerged as a potentially new global paradigm for public administration. It comes in many forms. However, its essence is governmental reliance on nongovernmental entities for the delivery of public services and constraints. Simply put, collaborative governance calls on government to focus on "steering" while relying on third parties to do the "rowing." In the United States, collaborative government is not new in kind-the federal government relied on contractors to convey the mail from the early days of the republic. Rather it is new in scope, accounting for billions of dollars and millions of …

Collaborative Governance: Emerging Practices And The Incomplete Legal Framework For Public And Stakeholder Voice, Lisa Blomgran Bingham

Journal of Dispute Resolution

This article describes the broad range of processes through which citizens and stakeholders collaborate to make, implement, and enforce public policy. First, it briefly reviews collaborative and new governance. Second, it describes deliberative democracy; collaborative public or network management; and appropriate dispute resolution in the policy process. These three separate fields are part of a single phenomenon, namely the changing nature of citizen and stakeholder voice in governance. Third, it describes how these new forms of participation operate across the policy continuum. Fourth, it briefly reviews existing legal infrastructure for collaborative governance primarily from the perspective of federal administrative law. …

Some Thoughts On Judicial Review And Collaborative Governance, Michael Herz

Journal of Dispute Resolution

A, perhaps the, central and never-to-be-resolved debate in American administrative law concerns this: to what extent should agencies be left to their own devices? Were the answer "completely," then there would be no such thing as administrative law. There would be administrative lore, and administrative practice, and administrative culture, and administrative functions. But administrative law consists of the doctrines, statutes, and regulations that limit agency discretion and subject agencies to various forms of oversight.

Participation In Governance From A Comparative Perspective: Citizen Involvement In Telecommunications And Electricity In The United Kingdom, France And Sweden, Dorit Rabinstein Reiss

Journal of Dispute Resolution

Since the goal is to compare the European experiments with those adopted in the United States, the paper is structured around that comparison. This part introduces the issues and the methodology. Part II provides a brief description of the case studies, addressing similarities and differences among the European countries. Part III then discusses several mechanisms considered necessary to participation in the United States that have been rejected by the agencies in the European countries. Part IV describes the parallels, though it also points out differences between the countries individually, as well as between them and the United States collectively. Part …

When Precedent Wears Thin: The Missouri Supreme Court Clarifies An Issue Of Ambiguity Affecting The Arbitrability Of Wrongful Death Claims, Ashley Brittain

Journal of Dispute Resolution

The issue before the Missouri Supreme Court in Lawrence H was whether an arbitration agreement signed on behalf of a nursing home resident is binding on plaintiffs in a wrongful death action against the nursing home. Beverly Manor argued that the court's decision in Burns "undercut" the cases holding that a wrongful death claim is a new and independent cause of action. However, the court disagreed that the Burns decision overturned such precedent. The court admitted that the language of Burns may seem to create ambiguity about whether wrongful death is a derivative claim but clarified that the Burns holding …

Failure To Object: Tribal Waiver Of Immunity By Participation In Arbitration, Christopher Mcmillin

Journal of Dispute Resolution

In Oglala Sioux Tribe v. C & W Enterprises, Inc. (Oglala), the U.S. Court of Appeals for the Eighth Circuit dealt with whether a tribe's affirmative participation in the arbitration process waived its sovereign immunity as to arbitration and enforcement of an arbitration award in state court. Previously, courts have maintained that the existence of an arbitration clause in a commercial contract was sufficient to waive tribal immunity, but they relied on the explicit wording of the agreement itself. In the instant decision, this precedent applied to three construction contracts that contained an explicit choice of law provision, but the …

Consistent With Inconsistency: The Sixth Circuit Keeps Manifest Disregard After Hall Street, John C. Steffens

Journal of Dispute Resolution

For over half a century, courts have used the doctrine of manifest disregard as a ground for vacating arbitration awards. However, the Supreme Court's ruling in Hall Street Associates. v. Mattel raised questions among lower courts regarding the viability of the doctrine after the Hall Street decision. Today, many lower courts differ in their application of the doctrine. Some courts claim that the Hall Street decision has ended the viability of manifest disregard. Others claim that the doctrine lives on as an interpretation of section 10 of the Federal Arbitration Act (FAA),5 despite the Supreme Court's ruling in Hall Street.

When Procedure Moonlights As Reason, There Is Nothing Left To Abuse, Matthew E. Terry

Journal of Dispute Resolution

In Greenstreet v. Social Security Administration, when the Federal Circuit Court of Appeals could not discern exactly what basis upon which an arbitrator acted, it leapt past any presumption in favor of the arbitrator's discretion and found that what an arbitrator did not do was an abuse of his decision-making volition, just as an act beyond his prescriptive powers would have been an abuse of discretion. So, in attempting to weed out the arbitrariness in the arbitration processes that decide workplace punishments, the court heaped needless and unreasoned process squarely into the arbitrator's path, thereby greatly lessening the amount of …

Collaborative Governance Meets Presidential Regulatory Review, Donald R. Arbuckle

Journal of Dispute Resolution

As I will discuss below, White House decision-making and OIRA regulatory review have a hierarchical component that is at odds with the horizontal nature of collaboration. The President's constitutional duties to manage the executive branch and OIRA's role as his agent in regulatory review require strong oversight of agency regulatory activity. Rulemaking is one means by which the executive branch implements not only statutory mandates, but also presidential policy; any sitting President would be loathe to delegate his authority to a collaborative panel. Nonetheless, the benefits of collaboration can be substantial, and the President could use his authority to encourage …

Unexcused Absence: A Review Of The Need, Costs, And (Lack Of) State Support For Peer Mediation Programs In U.S. Schools, Matthew D. Decker

Journal of Dispute Resolution

You might not have heard about peer mediation lately. You might not have heard about it at all. That's a problem. Peer mediation, though grossly underutilized, could be the potent and cost-effective answer to many of the problems facing U.S. schools.

State Legislative Update, Ashley Brittain, Sean Dolan, Alicia Hammond, Meghan Prideaux

Journal of Dispute Resolution

The purpose of this Bill is to provide notice to owners of residential real property owners that mediation with the mortgagee is an option at the onset of foreclosure proceedings. The Bill changes the mechanism by which borrowers are notified of foreclosures; instead of receiving a writ and summons, borrowers receive a notice of mediation, a foreclosure mediation certificate, and a blank appearance form. Borrowers still receive the writ, summons, and complaint, however. The lender must appear at the mediation with the authority to approve a proposed settlement in order to receive a remedy, and no attorney's fees will be …

The Circle Of Assent: How "Agreement" Can Save Mandatory Arbitration In Long-Term Care Contracts, Lauren Gaffney

Vanderbilt Law Review

On September 28, 1997, a resident at the Comanche Trail Nursing Center physically attacked his eighty-one-year-old roommate, Tranquilino Mendoza. As a result of the attack, Mr. Mendoza suffered a concussion and brain damage. His daughter claimed that her father was never the same after the attack and filed a lawsuit against the long-term care facility alleging negligence. In 2006, a jury awarded Mr. Mendoza $160 million.

Similarly, on April 26, 2003, a resident of the Heritage House Nursing and Rehabilitation Center allegedly attacked Carolyn Mason, another resident at the same facility. Mrs. Mason suffered a broken hip.6 Like Mr. Mendoza, …

Sticks, Stones, And School Yard Bullies: Restorative Justice, Mediation And A New Approach To Conflict Resolution In Our Schools, Leah M. Christensen

Nevada Law Journal

No abstract provided.

Imbalance Of Power: Procedural Inequities Within The Wto Dispute Settlement System, Amanda Bergstrom

Global Business & Development Law Journal

No abstract provided.

The Sounds Of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration In Cases Of Contractual Silence Or Ambiguity?, S. I. Strong

Michigan Journal of International Law

Before outlining the structure of this Article, it is useful to clarify two matters regarding definitions and scope. First, in the context of this Article, an "international class award" is an award resulting from an international class arbitration. There are three different types of international class arbitrations: (1) a class arbitration that includes at least one defendant from a country other than the seat of the arbitration, which means that enforcement of an award will have international implications; (2) a class arbitration that involves defendants that may be based in the arbitral forum but that also hold significant foreign assets …

A Book Review Of Finding Solutions For Environmental Conflicts: Power And Negotiation, Francis Kabat

Buffalo Environmental Law Journal

No abstract provided.

Arbitration After Hall Street V. Mattel: What Happens Next?, Stanley A. Leasure

University of Arkansas at Little Rock Law Review

No abstract provided.

A Senior Moment: The Executive Branch Solution To The Problem Of Binding Arbitration Agreements In Nursing Home Admission Contracts, Lisa Tripp

Campbell Law Review

No abstract provided.

Multi-Institutional Healthcare Ethics Committees: The Procedurally Fair Internal Dispute Resolution Mechanism, Thaddeus Mason Pope

Campbell Law Review

No abstract provided.

Reflection On The Finality Of Panel's Decisions In Domain Name Dispute Resolution Process, With Reference To China's Practice, 26 J. Marshall J. Computer & Info. L. 395 (2009), Yun Zhao

UIC John Marshall Journal of Information Technology & Privacy Law

The article notes the importance of looking into the position of Chinese federal courts to deal with cases brought by losing parties against the panel decisions in the administrative arbitration procedure. The author notes that federal courts do not give much consideration to panel decisions. Other problems also tend to arise as to the legal effect of panel decisions. The paper examines these problems, with reference to China’s current court practice. Part II of the paper offers an overview of the Uniform Domain Name Dispute Resolution Policy (“UDRP”) process, and its rules regarding possible court proceedings. Part III examines China’s …

Virtual Venues: Improving Online Dispute Resolution As An Alternative To Cost Intensive Litigation, 27 J. Marshall J. Computer & Info. L. 81 (2009), Shekhar Kumar

UIC John Marshall Journal of Information Technology & Privacy Law

This paper looks at the growing presence of online alternative dispute resolution in the commercial setting, with the eventual goal of making suggestions to improve current online systems. While out-of-court dispute resolutions such as arbitration and mediation have been a long-time alternative to lengthy litigation, the development of the internet and other advanced forms of communication has lead to an increased presence of, and increased possibilities for, online dispute resolution. The first section of this paper provides a succinct review of the history of online dispute resolution. The focus of the section is two-pronged. The first prong discusses how technological …

A Theory Of Wto Adjudication: From Empirical Analysis To Biased Rule Development, Juscelino F. Colares

Vanderbilt Journal of Transnational Law

The positive theory of litigation predicts that, under certain conditions, plaintiffs and defendants achieve an unremarkable and roughly equivalent share of litigation success. This Article, grounded in an empirical analysis of WTO adjudication from 1995 through 2007, reveals a high disparity between Complainant and Respondent success rates: Complainants win roughly ninety percent of the disputes. This disparity transcends Case Type, Party Identity, Income Level, and other litigant-specific characteristics. After analyzing and discarding standard empirical and theoretical alternative explanations for the systematic disparity in success rates, this study demonstrates, through an examination of patterns in WTO adjudicators' notorious decisions, that biased …

Legislative Updates , Rene Carballo

The Modern American

No abstract provided.

The Failure Of Adversarial Process In The Administrative State, Bryan T. Camp

Indiana Law Journal

No abstract provided.