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Articles 1 - 23 of 23
Full-Text Articles in Law
The End Of Mandatory Securities Arbitration?, Jill I. Gross
The End Of Mandatory Securities Arbitration?, Jill I. Gross
Pace Law Review
No abstract provided.
Private Transfer Fee Covenants: Cleaning Up The Mess, R. Wilson Freyermuth
Private Transfer Fee Covenants: Cleaning Up The Mess, R. Wilson Freyermuth
Faculty Publications
The purposes for creating a "private transfer fee" covenant range from supporting community services to creating a future revenue stream for the developer. Traditionally, courts examined these covenants using the touch and concern standard. The Restatement (Third) of Property: Servitudes, however, rejects this standard. This Article discusses this new approach as it relates to private transfer fees. The author argues that private transfer fee covenants are contrary to public policy and encourages states to enact legislation limiting the enforcement of these covenants.
C-Drum News, V. 4, No. 1, Fall 2010
Helping Good Lawyers Help Clients Make Good Decisions About Dispute Resolution, John M. Lande
Helping Good Lawyers Help Clients Make Good Decisions About Dispute Resolution, John M. Lande
Faculty Publications
Counseling clients about dispute resolution options is easier said than done. These can be complex and difficult decisions, and lawyers may not have appropriate resources to help lawyers counsel clients in choosing dispute resolution options. While establishing rules requiring this kind of training may help to remedy this shortcoming, perhaps the most promising involves using dispute systems design (DSD) procedures to establish better ways of training lawyers to counsel clients.
Four Mediation Stories From Across The Globe, Nadja Alexander
Four Mediation Stories From Across The Globe, Nadja Alexander
Research Collection Yong Pung How School Of Law
In the past 30 years mediation has emerged as a significant dispute resolution narrative around the world. It contains many stories told by different story-tellers -- stories about diverse practices, communities and courts, in creasing institutionalisation, regulation, accreditation, standards, research and theoretical developments. Together these stories weave a tapestry of our social and cultural experience of mediation and define mediation as a narrative, a practice and a profession.
Stipulating The Law, Gary S. Lawson
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 …
Matching Disputes And Responses: How To Diagnose Causes Of Conflict, And To Respond With Appropriate Interventions And/Or Referrals, John Wade
John Wade
This short paper will address three broad topics from an Australian perspective. Parts of this paper will be relevant to Canada and to other countries. First, where is the pressure coming from for dispute resolution professionals to improve the diagnosis of causes of conflict; and to improve the choice of intervention and/or referral to other skilled helpers? Secondly, what diagnostic dispute resolution services (problem defining) are currently “available”? What methods are used to make an initial diagnosis of causes of a conflict, and appropriate possible “interventions”? Thirdly, what dispute resolution assistance (problem solving) is “available” in each area of conflict? …
Legislating In The Light: Considering Empirical Data In Crafting Arbitration Reforms, Amy J. Schmitz
Legislating In The Light: Considering Empirical Data In Crafting Arbitration Reforms, Amy J. Schmitz
Faculty Publications
Consumer advocates and policymakers call for abolition of predispute arbitration clauses in consumer contracts, while proponents of arbitration claim such abolition would increase companies’ dispute resolution costs, leading to higher prices and interest rates. Policymakers on both sides of the debate, however, rarely consider the empirical research necessary for crafting informed arbitration disclosure rules. This article therefore focuses on how varied research, including my own empirical studies, may inform policies regarding arbitration disclosure regulations. The article also offers suggestions for regulations tailored to have the most impact for the cost in light of this research.
Expanding The Nafta Chapter 19 Dispute Settlement System: A Way To Declaw Trade Remedy Laws In A Free Trade Area Of The Americas?, Stephen J. Powell
Expanding The Nafta Chapter 19 Dispute Settlement System: A Way To Declaw Trade Remedy Laws In A Free Trade Area Of The Americas?, Stephen J. Powell
UF Law Faculty Publications
Chapter 19 of the NAFTA transfers judicial review of U.S., Canadian, and Mexican government investigations under the controversial anti-dumping and countervailing duty (AD/CVD) laws from national courts to binational panels of private international law experts. The system stands as a unique surrender of judicial sovereignty to an international body, a hybrid of national courts and international dispute settlement with as yet no parallel in the world of international trade or other international law regimes. Binational panel decisions have been controversial because agencies chafe at their intimate examination of agency findings and supporting evidence. Panels also are viewed as substantially more …
Order At The End Of Life: Establishing A Clear And Fair Mechanism For The Resolution Of Futility Disputes, Ashley Bassel
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 …
Collaborative Lawyers' Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients' Informed Consent To Use Collaborative Law, John M. Lande, Forrest Steven Mosten
Collaborative Lawyers' Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients' Informed Consent To Use Collaborative Law, John M. Lande, Forrest Steven Mosten
Faculty Publications
Collaborative Law (CL) is an innovative dispute resolution process that offers significant benefits but also poses significant non-obvious risks. This Article provides a systematic analysis of these possible risks as identified in books written by CL experts, CL practice group websites, social science research, and bar association ethics opinions. In CL, the lawyers and clients sign a "participation agreement" promising to use an interest-based approach to negotiation and fully disclose all relevant information. A key element of CL is the "disqualification agreement" signed by parties (and sometimes by attorneys) which provides that both CL lawyers would be disqualified from representing …
‘Drive-Thru’ Arbitration In The Digital Age: Empowering Consumers Through Regulated Odr, Amy J. Schmitz
‘Drive-Thru’ Arbitration In The Digital Age: Empowering Consumers Through Regulated Odr, Amy J. Schmitz
Faculty Publications
Online Dispute Resolution (ODR) has been promoted for quickly and conveniently resolving claims using online “drive-thru” processes instead of more costly and time-consuming face-to-face meetings and hearings. Most commentators have nonetheless focused mainly on non-binding or automated bidding processes, perhaps due in part to fairness concerns associated with off-line arbitration. This Article, however, explores the potential for online binding arbitration (OArb), and sheds new light on arbitration as means for empowering consumers to obtain remedies on their e-merchant claims. By moving arbitration online, OArb helps address concerns regarding companies’ use of arbitration clauses to curb consumers’ access to remedies on …
Beyond The Polemics: Realistic Options To Help Divorcing Families Manage Domestic Violence, Elayne E. Greenberg
Beyond The Polemics: Realistic Options To Help Divorcing Families Manage Domestic Violence, Elayne E. Greenberg
Faculty Publications
Children, adult survivors, and their batterers who remain engaged in violence, even after they live apart, are living legacies of the historical perniciousness of domestic violence, a legacy that must change. True, over the past thirty years the politicization of domestic violence has raised public awareness, spurred legislative reforms, and propelled court innovations. However, the children, survivors, and batterers who still live domestic violence after divorce know all too well that all of our political advancements, legal victories, court innovations, and social awareness have not stopped the violence they live within their day-to-day lives. For many of these families, an …
Legal Bargaining Theory's New "Prospecting" Agenda: It May Be Social Science, But Is It News?, Robert J. Condlin
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 …
What Is '(Im)Partial Enough' In A World Of Embedded Neutrals?, Nancy A. Welsh
What Is '(Im)Partial Enough' In A World Of Embedded Neutrals?, Nancy A. Welsh
Journal Articles
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 …
Dispute Resolution Lessons Gleaned From The Arrest Of Professor Gates And "The Beer Summit", Elayne E. Greenberg
Dispute Resolution Lessons Gleaned From The Arrest Of Professor Gates And "The Beer Summit", Elayne E. Greenberg
Faculty Publications
America's fantasy of a post-racial society was shattered on July 16,2009, when a white police officer arrested Harvard Professor Henry Louis Gates, a well-respected African-American academic, in his own home. Our historical racial fissure was widened. Once again, our thoughts were plagued with tortured images of our system of racialized law enforcement: the torture of Abner Louima, the beating of Rodney King, the killing of Amadou Diallo. Predictably, Americans became further polarized, as they simultaneously blamed and defended responses to racism.
In what was perceived by some as a dramatic and unanticipated turn of events, and perceived by others as …
On The Continued Vitality Of Securities Arbitration: Why Reform Efforts Must Not Preclude Predispute Arbitration Clauses, Alicia J. Surdyk
On The Continued Vitality Of Securities Arbitration: Why Reform Efforts Must Not Preclude Predispute Arbitration Clauses, Alicia J. Surdyk
NYLS Law Review
No abstract provided.
The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students For Real World Lawyering, Jean R. Sternlight
The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students For Real World Lawyering, Jean R. Sternlight
Scholarly Works
This Article briefly reviews the long history of critiques of legal education that highlight the failure to adequately prepare students for what they will and should do as attorneys. It takes a sober look at the hurdles reformers face when trying to make significant curricular changes and proposes a modest menu of reforms that interested faculty and law schools can largely achieve without investing substantial additional resources. This Article emphasizes the special contributions that alternative dispute resolution (ADR) can provide to legal education more generally. ADR instruction is an important corrective to a curriculum that routinely conveys the erroneous implication …
Whose Dictionary Controls?: Recent Challenges To The Term "Investment" In Icsid Arbirtration, Joseph M. Boddicker
Whose Dictionary Controls?: Recent Challenges To The Term "Investment" In Icsid Arbirtration, Joseph M. Boddicker
American University International Law Review
No abstract provided.
The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students For Real World Lawyering, John M. Lande, Jean R. Sternlight
The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students For Real World Lawyering, John M. Lande, Jean R. Sternlight
Faculty Publications
This Article briefly reviews the long history of critiques of legal education that highlight the failure to adequately prepare students for what they will and should do as attorneys. It takes a sober look at the hurdles reformers face when trying to make significant curricular changes and proposes a modest menu of reforms that interested faculty and law schools can largely achieve without investing substantial additional resources.This Article emphasizes the special contributions that alternative dispute resolution (ADR) can provide to legal education more generally. ADR instruction is an important corrective to a curriculum that routinely conveys the erroneous implication that …
Effect Of Shari'a On The Dispute Resolution Process Set Forth In The Washington Convention, The, Andrew Smolik
Effect Of Shari'a On The Dispute Resolution Process Set Forth In The Washington Convention, The, Andrew Smolik
Journal of Dispute Resolution
This article will provide an overview of Shari'a law with respect to arbitration. Section I provides an overview of principles of Shari'a and its development. Section II discusses Islamic jurisprudence and the different schools of Islamic jurisprudence. Section III provides a discussion of the different schools of Islamic jurisprudence. Section IV provides a history of arbitration in the Middle East from the period before Muhammad to today. Section V gives a brief overview of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). Sections VI and VI discuss issues regarding choice of …
Mapping The World: Facts And Meaning In Adjudication And Mediation, Robert Rubinson
Mapping The World: Facts And Meaning In Adjudication And Mediation, Robert Rubinson
All Faculty Scholarship
This Article explores what is and what is not in adjudication and mediation, thus illuminating the profound differences between these two processes. The Article does this work in four parts. First, it offers an analysis of cognitive mapmaking and its inevitability in constructing meaning. It then explores how adjudication defines meaning in a particular way. This Article then conducts a comparable analysis of mediation. Finally, it focuses on the bridging function attorneys play between the worlds of mediation and adjudication.
Contracting For State Intervention, W. Mark C. Weidemaier
Contracting For State Intervention, W. Mark C. Weidemaier
W. Mark C. Weidemaier