Law Commons^™

Stipulating The Law, Gary S. Lawson

Faculty Scholarship

In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court decided important questions of structural constitutionalism on the assumption, shared by all of the parties, that members of the Securities and Exchange Commission are not removable at will by the President. Four Justices strongly challenged the majority’s willingness to accept what amounts to a stipulation by the parties on a controlling issue of law. As a general matter, the American legal system does not allow parties to stipulate to legal conclusions, though it welcomes and encourages stipulations to matters of fact. I argue that one ought to …

What Is "(Im)Partial Enough" In A World Of Embedded Neutrals?, Nancy A. Welsh

Faculty Scholarship

The Supreme Court’s decision in Caperton v. A. T. Massey Coal Co. highlighted the fragility of judicial independence and impartiality in the United States. A similar, less-noticed fragility of independence and impartiality exists among the arbitrators, mediators and administrative hearing officers who resolve an increasing number of disputes. Everywhere one looks, there is unremarked yet remarkable evidence of the rise of - embedded neutrals, particularly in uneven contexts between one-time and repeat players. This phenomenon becomes particularly worrisome when the embedded neutral’s role is due to their special relationship with the repeat player, and the one-time player is not as …

I Could Have Been A Contender: Summary Jury Trial As A Means To Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation And Early, Consensual Dispute Resolution, Nancy A. Welsh

Faculty Scholarship

With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate - or even communicate with and listen to - such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive …

Legal Bargaining Theory's New "Prospecting" Agenda: It May Be Social Science, But Is It News?, Robert J. Condlin

Faculty Scholarship

In the good old days legal bargaining scholarship was based mostly on negotiator war stories exuberantly told. The social-scientific study of the subject did not begin in earnest until the nineteen-seventies. Since then, however, the literature of storytelling has gone into a pronounced eclipse and social-scientific study is now the principal scholarly game in town. This article questions the wisdom of this shift, almost seismic in its proportions, and argues that it is too soon to jump on the social science bandwagon. Discussion focuses on the uses made of the Prospect Theory of Daniel Kahneman and Amos Tversky and the …

Negotiating Executive Compensation In Lieu Of Regulation, Urska Velikonja

Faculty Scholarship

No abstract provided.

Artificial Intelligence: Robots, Avatars And The Demise Of The Human Mediator, David Allen Larson

Faculty Scholarship

As technology has advanced, many have wondered whether (or simply when) artificial intelligent devices will replace the humans who perform complex, interactive, interpersonal tasks such as dispute resolution. Has science now progressed to the point that artificial intelligence devices can replace human mediators, arbitrators, dispute resolvers and problem solvers? Can humanoid robots, attractive avatars and other relational agents create the requisite level of trust and elicit the truthful, perhaps intimate or painful, disclosures often necessary to resolve a dispute or solve a problem? This article will explore these questions. Regardless of whether the reader is convinced that the demise of …

Yes, And: Core Concerns, Internal Mindfulness, And External Mindfulness For Emotional Balance, Lie Detection, And Successful Negotiation, Clark Freshman

Faculty Scholarship

No abstract provided.

Implicit Bias And The Illusion Of Mediator Neutrality, Carol L. Izumi

Faculty Scholarship

No abstract provided.

Mindfulness, Emotions, And Mental Models: Theory That Leads To More Effective Dispute Resolution, Peter Reilly

Faculty Scholarship

At the core of nearly all great negotiators, mediators, lawyers, and leaders is a person who has learned to connect with other people, that is, to build relationships of trust, cooperation, and collaboration. This Article argues that when people learn a sense of "self" and "other" through both theoretical and practical knowledge and understanding of mindfulness and human emotion, connections with others are more likely to be made, and important relationships are more likely to be built.

My goal, then, is to begin thinking about how one might bring mindfulness and emotions from the “mind level” to what human relations …

Discovery From Non-Parties (Third-Party Discovery) In International Arbitration, Charles O. Verrill Jr.

Faculty Scholarship

International arbitration rules and many arbitration laws usually provide procedures that permit tribunals to order parties to disclose documents and other materials to the other parties.1 More complex are the rules that determine opportunities to obtain discovery from persons that are not party to the arbitration (third-party discovery). This article will review third-party discovery under the Federal Arbitration Act (FAA) and the provisions of the US Code s.1782 that authorise US courts to act in aid of actions before foreign tribunals. Section 1782 has unique interest at this time because it figured prominently in the EU antitrust investigation of Intel …

Making Talk Cheap (And Problems Easy): How Legal And Political Institutions Can Facilitate Consensus, Cheryl Boudreau, Mathew D. Mccubbins, Daniel B. Rodriguez, Nicholas Weller

Faculty Scholarship

In many legal, political, and social settings, people must reach a consensus before particular outcomes can be achieved and failing to reach a consensus may be costly. In this article, we present a theory and conduct experiments that take into account the costs associated with communicating, as well as the difficulty of the decisions that groups make. We find that when there is even a small cost (relative to the potential benefit) associated with sending information to others and/or listening, groups are much less likely to reach a consensus, primarily because they are less willing to communicate with one another. …

An Empirical Study Of Aaa Consumer Arbitrations, Samantha Zyontz, Christopher R. Drahozal

Faculty Scholarship

This article extends our knowledge of consumer arbitration by presenting results from the first detailed empirical study of consumer arbitration as administered by the AAA. Primarily using a sample of 301 AAA consumer arbitrations that resulted in an award between April and December 2007, it considers such issues as the costs incurred by consumers in arbitration, the speed of the arbitral process, and the outcomes of the cases-the very topics of most interest in the policy debate.

Government Of Sudan V. Sudan’S People’S Liberation Movement/Army (“Abyei Arbitration”), Coalter G. Lathrop

Faculty Scholarship

No abstract provided.

Arbitration's Summer Soldiers Marching Into Fall: Another Look At Eisenberg, Miller, And Sherwin's Empirical Study Of Arbitration Clauses In Consumer And Nonconsumer Contracts, Nancy Kim

Faculty Scholarship

Our empirical study examines the role and importance of arbitration clauses in standard form contracts, primarily with other businesses. While much has been written about the impact of mandatory arbitration clauses in consumer contracts, relatively little has been written on mandatory arbitration clauses in customer agreements where the customer was a business and not an individual consumer. In this Article, we specifically address the findings presented in Theodore Eisenberg, Geoffrey Miller, and Emily Sherwin’s study, Arbitration’s Summer Soldiers: An Empirical Study of Arbitration Clauses in Consumer and Nonconsumer Contracts.1 Our study finds that many businesses employ mandatory arbitration clauses in …

Mediating Medical Malpractice Lawsuits: The Need For Plaintiff And Physician Participation, Chris Stern Hyman, Carol B. Liebman

Faculty Scholarship

At this moment in history, tort reform and new approaches to resolving medical malpractice claims are part of the national debate about how to improve health care. Federal funding is available for pilot projects to test new approaches to medical malpractice litigation. There is increased pressure from health care regulators to disclose adverse events and communicate better with patients and their families. These all present opportunities to increase the use of mediation, particularly to address medical malpractice lawsuits and to improve patient safety.

For the past seven years, we have been studying ways in which mediation and mediation skills can …