Law Commons^™

The End Of Mandatory Securities Arbitration?, Jill I. Gross

Pace Law Review

No abstract provided.

Between A Rock And A Hard Place: The Plight Of Health Care Arbitration Agreements Under Federal Law, James C. Dunkelberger

BYU Law Review

No abstract provided.

Court-Annexed Arbitration And Nevada's Unique Penalty Provisions: Introducing An Arbitrator's Findings At A Trial De Novo, Paul C. Williams

Nevada Law Journal

No abstract provided.

Dispelling The Myths Of Modern Mediation, Bryan H. Hulka

Golden Gate University Law Review

This note serves as an introductory analysis of mediation's potential to resolve commercial disputes. It will briefly explain the conceptual framework of mediation and attempt to address any prejudice attorneys may have towards using mediation to settle commercial disputes.

Punitive Damages In Commercial Arbitration: A Due Process Analysis, Ira P. Rothken

Golden Gate University Law Review

This comment theorizes that awarding punitive damages in commercial arbitration is "state action" requiring due process. Unlike the traditional contract remedy of compensatory damages, punitive damages have for centuries been under the exclusive control of the State. The Supreme Court has found that a traditional and exclusive State power exercised by a private individual is "state action" requiring due process. Therefore when punitive damages are at issue, the arbitration agreement must consist of a minimum quantum of procedures that balance the protection against erroneous punishment with the State's interest in limiting the burden on arbitration. This comment also theorizes that …

Securities Arbitration: Resolution Of Disputes Between Securities Brokers And Their Customers, Gregory N. Malson

Golden Gate University Law Review

This comment will explore the arbitration of securities disputes between securities brokers and their customers, showing that the investor today is fully protected in an arbitral forum and that the advantages to the investor who arbitrates a claim against their broker are expansive.

A Prescription To Expedite Hazardous Waste Cleanups: De Minimis Settlements And Adr, Jennifer Martin

Golden Gate University Law Review

The first section of this article discusses the history of Superfund and its 1986 amendments, with a focus on de minimis contributors and why the de minimis settlement incentive has failed. The second section focuses on alternative dispute resolution and analyzes the government's attempts at incorporating arbitration into Superfund. Lastly, the comment suggests incorporating arbitration provisions into the de minimis section of Superfund.

Adr: In Search Of The Emperor's New Clothes, Allan E. Morgan

Golden Gate University Law Review

This essay proposes a structure of ADR consistent with the early vision of the commercial sector towards arbitration. ADR as practiced today does not satisfy that vision. Examining current methods of dispute resolution suggests that ADR is a bit like the Emperor's new clothes. The "alternatives" are illusory at best! Finally we go in search of the Emperor's new clothes and conclude that the key to meaningful alternatives hangs in the problem solving closet.

The California Arbitration Act And The 1988 Real Estate Arbitration Amendments: Coming Of Age?, Francis O. Spalding

Golden Gate University Law Review

In 1988, the California Legislature enacted one of the longest, and in many ways one of the most significant, amendments to the California Arbitration Act1 since the adoption of that Act in 1961. Assembly Bill No. 1240, carried by Assemblyman Byron Sher, Democrat of Palo Alto, was introduced on March 3, 1987 under the extra-legislative sponsorship of the California Association of Realtors. Chaptered on September 14, 1988, after significant legislative markup over two sessions, the Bill added to the Act Sections 1298-1298.8, its first provisions dealing expressly with arbitration clauses in real estate contracts. Under Section 1298.8, the provisions of …

Tailoring The Arbitration Clause: Accommodating Client Needs In Real Estate And Other Transactions, Yaroslav Sochynsky, Mariah Baird

Golden Gate University Law Review

Just ten years ago, a typical lawyer would have had difficulty explaining to a client the difference between arbitration and mediation. Now, most major law schools offer courses in alternative dispute resolution, and the acronym "ADR" has become part of every lawyer's vocabulary. The Commercial Arbitration caseload of the American Arbitration Association has increased at the dramatic rate of over 50% between 1980 and 1990. Mediation services provided by the AAA, U.S. Arbitration, Endispute and others, as well as rent-a-judge programs such as Judicial Arbitration & Mediation Services, have also experienced increased demand for their services.

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.

You Promised You Wouldn't Tell: Modifying Arbitration Confidentiality Agreements To Allow Third-Party Access To Prior Arbitration Documents, Gotham Holdings, Heath Grades

Journal of Dispute Resolution

To facilitate the speed, cost-effectiveness, and casual atmosphere of arbitration, it has long been thought that parties must trade in the usual features of the courts, such as precedent, appellate review, and certain evidentiary rules. With the increasing use of arbitration, many parties have begun to demand that some of the comforts that have long accompanied litigation be merged with the benefits of arbitration. Courts have, for the most part, denied such demands. Nevertheless, the Seventh Circuit in Gotham Holdings allowed such a demand by ruling that third parties must have the opportunity to obtain prior arbitration awards and use …

Tale Of Two Policies: Corporate Immunity And Its Negative Externalities, The Worst Of Times For Consumers, A, David Ma

Journal of Dispute Resolution

When the Third Circuit Court of Appeals, in Kaneff v. Del. Title Loans, Inc., faced a Pennsylvania statute that prohibited payday loans,' the Third Circuit refused to enforce the state statute. This note will explore the reasoning underlying and discuss the effects of the Third Circuit's decision, providing a consequential look at the externalities that Kaneff created. As will become evident, these effects are quite serious and far-reaching, both to Pennsylvania's citizens and Pennsylvania's regulatory scheme.

Arbitration Clauses In Contracts Of Adhesion Trap Sophisticated Parties Too, Andrea Doneff

Journal of Dispute Resolution

Part II of this Article will provide a survey of the FAA, the cases that have enforced it since its passage in 1925, and the distinctions made by the drafters and the courts. Part III addresses a number of the common themes and limitations raised by cases applying the FAA, including the ability to protect statutory rights, the right to contract and have courts enforce contractual obligations, the need to protect consumers subject to mandatory arbitration clauses, and the need for finality in arbitration. Part IV reviews recent legislative and Supreme Court decisions considering issues regarding sophisticated and unsophisticated parties …

Building Bridges To Resolve Conflict And Overcome The Prisoner's Dilemma: The Vital Role Of Professional Relationships In The Collaborative Law Process, David Hoffman, Dawn Ash

Journal of Dispute Resolution

Part 1 of this article describes the rapid growth of Collaborative Practice and the dense fabric of professional relationships that has been woven with the Collaborative Practice community. Part H explores the Prisoner's Dilemma, which explains why, in the absence of such relationships and mutual commitments to collaboration, there are hard-to-resist pressures to engage in competitive, win-lose, adversarial forms of negotiation. Part II also explores the role that lawyers can play in overcoming those pressures. Part III is based on interviews with teams of Collaborative lawyers and other professionals, who describe the personal qualities and skills that support strong relationships …

Pitfalls And Possibilities Of Using Technology In Mediating Cross-Border Child Custody Cases, The, Melissa A. Kucinski

Journal of Dispute Resolution

This paper will explore current efforts to ensure parents have the opportunity to elect voluntary mediation with a skilled international family mediator to resolve issues stemming from one parent traveling to another country with the parties' child, against the wishes of the co-parent. Additionally, this paper will explore, in general, the practical and substantive considerations in mediating a cross-border child custody case, with a focus on one issue of primary concern-the use of technology in these mediations. The paper will additionally include a discussion on whether technology will hinder or help resolution when considering cultural differences. Many mediators prefer to …

Obituary For The Federal Arbitration Act: An Older Cousin To Modern Civil Procedure, An, Imre S. Szalai

Journal of Dispute Resolution

In order to explore the different ways in which the FAA is related to the development of modern civil procedure, this article is divided into four main parts. first, this article discusses how the FAA is related to the Judiciary Act of 1925. Second, this article focuses on the FAA's relationship to the enactment of the Rules Enabling Act and the related adoption of the Federal Rules of Civil Procedure. Third, this article discusses how the Supreme Court's transformation of the doctrine of personal jurisdiction in International Shoe is related to the enactment of the FAA. Fourth, this article discusses …

State Legislative Update , Josephine Larison, Steven Robson, Elizabeth Russell, Derek Ankrom

Journal of Dispute Resolution

Vermont House Bill 663 would modify current law to follow a national trend of special medical malpractice statutes that require the arbitration of such claims, as well as following a similar trend to limit noneconomic and non-pecuniary damage recovery.' Arbitration for medical malpractice claims has been allowed under state law for more than thirty years. The bill, sponsored by nine members of the General Assembly, sought to amend the "Voluntary Arbitration Chapter," chapter 215 (§§ 7001-7009) and add a provision to section 1913 of Vermont Statute Title 12.

More Than Just Territorial: The 8th Circuit Establishment A Resourceful Precedent In Claiming Jurisdiction Over Denials To Compel Arbitration, Ashley Marshall

Journal of Dispute Resolution

This note argues that the Eighth Circuit's decision to claim jurisdiction in Industrial Wire Products, Inc. v. Costco Wholesale Corp. was practical and resourceful, as that court is better suited to decide matters of contract interpretation. The highly specialized Federal Circuit should devote its time and expertise to governing cases in particular areas of law, like patent litigation and administrative law. This note further argues that the Eighth Circuit preserved judicial resources and adhered to the parties' intentions in holding that the patent infringement claims were required to proceed through arbitration.

Mediation Tune Up For The State Court Appellate Machine, A, Bobbi Mcadoo

Journal of Dispute Resolution

This Article begins in Part II with a review of the rationale for appellate mediation programs. In Part III the Article will discuss the development and evaluation of a pilot program for the mediation of family appellate cases in Minnesota. The pilot was developed and implemented with the goals of settlement and other qualitative justice measures in mind. Moreover, preliminary evaluation results for the pilot suggest that both continue to be important and can be achieved.3 In Part IV the Article will discuss the elements of program design most likely to make appellate mediation programs succeed, in terms of both …

Union Refusal To Arbitrate: Pyett's Unanswered Question, F. Ryan Van Pelt

Journal of Dispute Resolution

Kravar v. Triangle Services, Inc., provides the most workable solution to date, balancing competing union, employer, and employee interests. Kravar gives an employee access to federal court, as a matter of right, in the face of union refusal to arbitrate his or her federal statutory claims.8 Although the Federal District Court for the Southern District of New York offered little discussion of the policy behind its new rule, there are sound policy rationales underlying it.

Barricades And Checkered Flags: An Empirical Examination Of The Perceptions Of Roadblocks And Facilitators Of Settlement Among Arbitration Practitioners In East Asia And The West, Shahlaw F. Ali

Washington International Law Journal

Contemporary research on roadblocks and facilitators of settlement has thus far been framed by standard economic modeling and distributive bargaining theories. Each of these frameworks provides helpful insights into those elements that assist or hinder the settlement process. However, each of these models has thus far not examined how particular roadblocks and facilitators of settlement operate in the context of international commercial arbitration proceedings from a comparative cross-cultural perspective. How diverse regions approach roadblocks and facilitators of settlement in the context of the integration of global markets is a new arena for research and practice. To date, most research on …

Order At The End Of Life: Establishing A Clear And Fair Mechanism For The Resolution Of Futility Disputes, Ashley Bassel

Vanderbilt Law Review

On January 22, 2008, Ruben Betancourt was admitted to Trinitas Regional Medical Center in New Jersey for surgery for malignant thymoma, a cancer of the thymus gland (a small organ underneath the breastbone).' Following surgery, the patient developed brain damage due to lack of oxygen and, as a result, lapsed into unconsciousness. For the next five months, Mr. Betancourt was admitted to various medical facilities and readmitted finally to Trinitas in July 2008 for renal failure. For six more months, the unconscious patient remained in the hospital on an artificial ventilator, receiving renal dialysis and nutrition through tube feeding.

The …

Annual Saltman Lecture: Further Beyond Reason: Emotions, The Core Concerns, And Mindfulness In Negotiation, Leonard L. Riskin

Nevada Law Journal

This article focuses on one particularly common problem: Sometimes people who understand the Core Concerns System, know how to use it, and intend to employ it in a particular negotiation, either fail to do so or fail to do so skillfully; when they review the negotiation, they regret not having used the Core Concerns System, and believe that using it would have produced a better process and outcome. When this occurs, it often results from deficits or faults in the negotiator's awareness.

It follows that a negotiator can enhance his ability to employ the Core Concerns System through improving his …

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

Nevada Law Journal

This Article suggests that law students and lawyers can be introduced to, and even begin to master, some of the same transformational principles, skill sets, and behaviors that poured forth from FDR as a result of his intense physical and personal challenges. 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. Additionally, this Article argues that where people first learn a sense of self and others through both theoretical and practical knowledge and understanding of mindfulness …

From Signal To Semantic: Uncovering The Emotional Dimension Of Negotiation, Daniel L. Shapiro

Nevada Law Journal

The author co-created the Core Concerns Framework as a pragmatic model to help people address the emotional dimension of negotiation. Dealing directly with the variety of emotions that arise in a negotiation can overwhelm our cognitive capacity, especially in a high-stakes context, where there are multiple layers of communication, processes, and substantive issues. The framework suggests that negotiators turn their attention to a subset of motives--what the authors call core concerns--to illuminate and navigate the emotional dimension of negotiation.

In the Nevada Law Journal symposium on mindfulness and the core concerns, Professor Clark Freshman calls into question how “core” the …

Judicial Politics And International Investment Arbitration: Seeking An Explanation For Conflicting Outcomes, David Schneiderman

Northwestern Journal of International Law & Business

In taking on the controversial debate over the role of state attorneys general in antitrust enforcement, the article draws upon recent legal and historical scholarship on federalism to argue that globalization requires a paradigm change in concepts of U.S. federalism. While many assume that increasing international economic integration makes state participation in economic regulation with international implications inherently problematic, the article demonstrates that, to the contrary, states have an important role to play in the regulation of international business. States have a long history of challenging the federal government in a way that has promoted a robust national dialogue on …

Evolving Schizophrenic Nature Of Labor Arbitration, The, Martin H. Malin

Journal of Dispute Resolution

Commentators have rightly criticized Pyett for its complete disregard of decades of established precedent. In this article, however, I situate the Pyett decision in the context of an ongoing evolution in labor arbitration as that institution has tried to accommodate the intrusion of public law claims into a private system of workplace self-governance. I suggest that labor arbitration has developed a kind of schizophrenic existence, preserving its role as a substitute for strikes and other workplace strife in a private system of self-governance while accommodating an additional role as a substitute for litigation of public law claims. Nevertheless, I find …

Sweet Vindication: The Second Circuit Strikes A Blow To Companies That Use Class-Action Waivers In Arbitration Agreements To Avoid The Law, Samuel E. Buffaloe

Journal of Dispute Resolution

Other scholars and courts have concluded that when a class action waiver prevents a plaintiff from vindicating his statutory rights, that waiver should be unenforceable. The U.S. Court of Appeals for the Second Circuit took this approach in In re American Express Merchants' Litigation. The court, however, was careful to point out that these class-action waivers should not be considered unenforceable per se, but that courts must examine each waiver on a case-by-case basis. This note will examine the court's reasoning and will discuss what courts and Congress should do to protect consumers when companies use class-action waivers to avoid …

Catching The Waive: The Third Circuit Joins The Growing Trend Of Circuit Courts In Voiding A Class-Arbitration Waiver In Homa V. American Express Co., Steven D. Millman

Villanova Law Review

No abstract provided.