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Articles 1 - 30 of 30
Full-Text Articles in Law
What Is Negotiation?, Part 2, John M. Lande
What Is Negotiation?, Part 2, John M. Lande
Faculty Blogs
To get a good understanding of final settlement events, it usually helps to also understand the interactions leading up them.
“Labels Suck”, John Lande
“Labels Suck”, John Lande
Faculty Blogs
Using Andrea Schneider’s pithy observation as a jumping off point, I noted confusion about the traditional terminology about lawyer- and client-centered counseling, positional interest-based negotiation, and evaluative and facilitative mediation. Many of us are pretty sloppy in our use of these terms. For example, people often think of client-centered counseling, interest-based negotiation, and facilitative mediation basically as being nice and the opposite approaches as being tough (if not naughty). So in my classes, I briefly defined the terms so that students recognize them and I described the problems with them. Then I warned them not to use the terms and …
What Is Negotiation?, Part 1, John M. Lande
What Is Negotiation?, Part 1, John M. Lande
Faculty Blogs
Conventional conceptions of negotiation often involve various elements that do not necessarily occur in the process of reaching agreement.
Good Pretrial Lawyering: Planning To Get To Yes Sooner, Cheaper, And Better, John M. Lande
Good Pretrial Lawyering: Planning To Get To Yes Sooner, Cheaper, And Better, John M. Lande
Faculty Publications
Although the ostensible purpose for pretrial litigation is to prepare for trial, such preparation is inextricably intertwined with negotiation because the expected trial outcome is a major factor affecting negotiation. Indeed, since most litigated cases are settled, good litigators prepare for negotiation at least as much as trial. The lawyers interviewed for this article, who were selected because of their good reputations, described how they prepare for both possibilities. They recommend taking charge of their cases from the outset, which includes getting a clear understanding of clients and their interests, developing good relationships with counterpart lawyers, carefully investigating the cases, …
A Framework For Advancing Negotiation Theory: Implications From A Study Of How Lawyers Reach Agreement In Pretrial Litigation, John M. Lande
A Framework For Advancing Negotiation Theory: Implications From A Study Of How Lawyers Reach Agreement In Pretrial Litigation, John M. Lande
Faculty Publications
The prevailing negotiation theory tries to fit lots of square pegs into just two round holes–adversarial or cooperative bargaining. In the real world, negotiation comes in many different shapes, not just circles and squares. Analyzing law school textbook definitions of the traditional models, this article demonstrates that the two “round holes” in current negotiation theory are poorly defined. It also presents empirical accounts of actual pretrial negotiations to demonstrate that the theoretical models do not fit some real-life negotiations. It argues that it is time to replace the traditional models with a flexible framework that can accommodate virtually all legal …
State Legislative Update, Bianca Amorim, N. Austin Fax, Madison A. Fischer, B. Cory Lee
State Legislative Update, Bianca Amorim, N. Austin Fax, Madison A. Fischer, B. Cory Lee
Journal of Dispute Resolution
This legislative analysis will look to conflict and dispute resolution in schools, along with how that conflict has been traditionally managed. Next, this article will examine some of the benefits that can be achieved by implementing forms of alternative dispute resolution in schools and the limitations to these benefits. Finally, this article will focus on the legislative response to the ever-present epidemic of conflict in our schools, including recent pieces of legislation in Louisiana and Massachusetts.
International Commercial Arbitration Coming To A Courthouse Near You, S. I. Strong, Judith Kaye
International Commercial Arbitration Coming To A Courthouse Near You, S. I. Strong, Judith Kaye
Faculty Publications
Some people view international commercial arbitration as an exotic, private dispute resolution mechanism that is entirely separate from U.S. state and federal courts. However, the truth of the matter is that judges from around the country increasingly are being asked to handle disputes that are somehow related to international commercial arbitration.
"Horton And The Who": Determining Who Is Affected By The Emerging Statutory Battle Between The Faa And Federal Labor Law, James R. Montgomery
"Horton And The Who": Determining Who Is Affected By The Emerging Statutory Battle Between The Faa And Federal Labor Law, James R. Montgomery
Journal of Dispute Resolution
In the early 20th century, social changes brought about a system designed to protect employees. As part of the American system of labor laws, workers are given certain rights to proceed collectively, to "band together," and to proceed as a unit. Labor laws were first enacted in the United States during a period of Supreme Court jurisprudence that granted a broad array of powers to corporations, in the form of "liberty of contract." Justice Holmes dissented in Lochner v. New York, and planted a seed in his opinion that would later go on to support the idea behind federal labor …
Rogue Debtors And Unanticipated Risk, S. I. Strong
Rogue Debtors And Unanticipated Risk, S. I. Strong
Faculty Publications
Commercial actors are becoming increasingly concerned about the effect that various types of political risk, including the risk of sovereign default, has on their investments. This Essay considers the problem of rogue debtors (i.e., states that intentionally ignore their legal and financial obligations) as a type of unanticipated risk and analyzes how well various responses, including domestic litigation, interstate negotiation and investment arbitration, address investors’ needs. In particular, the discussion focuses on how effective investment arbitration is in overcoming a number of difficulties traditionally associated with rogue debtors and the various means by which states are attempting to bypass the …
Concepcion And Mis-Concepcion: Why Unconscionability Survives The Supreme Court's Arbitration Jurisprudence, Richard Frankel
Concepcion And Mis-Concepcion: Why Unconscionability Survives The Supreme Court's Arbitration Jurisprudence, Richard Frankel
Journal of Dispute Resolution
States have long relied on the doctrines of unconscionability and public policy to protect individuals against unfair terms in mandatory arbitration provisions. The Supreme Court recently struck a blow to such efforts in AT&T Mobility LLC v. Concepcion and American Express Co. v. Italian Colors Restaurant. In those two cases, the Court established that a challenge to the enforceability of unfairly one-sided arbitration clauses is preempted if it would interfere with "fundamental attributes of arbitration." Several commentators have argued that these decisions will dramatically alter the arbitration landscape, by wiping away virtually any contract defense to the validity of an …
Employment Arbitration At The Crossroads: An Assessment And Call For Action, Stephen L. Hayford, Jamie Darin Prenkert, Anjanette H. Raymond
Employment Arbitration At The Crossroads: An Assessment And Call For Action, Stephen L. Hayford, Jamie Darin Prenkert, Anjanette H. Raymond
Journal of Dispute Resolution
Arbitration agreements must be on equal footing with all types of contracts. This stark reality demands that the various stakeholders in the arbitration community converge in the interest of designing and institutionalizing arbitration mechanics and processes that, as a start, exceed the minimum requirements to avoid arguments of substantive unconscionability and, more broadly, provide the fair, just, and accountable alternative dispute resolution system the FAA and the U.S. Supreme Court have indicated it can be. This paper seeks to guide this next stage of the debate by first reviewing the doctrinal developments over the past thirty years that led to …
Europe's Role In Alternative Dispute Resolution: Off To A Good Start?, Maud Piers
Europe's Role In Alternative Dispute Resolution: Off To A Good Start?, Maud Piers
Journal of Dispute Resolution
ADR has become a topical issue in contemporary European procedural private law. Over the past fifteen years, European lawmakers have displayed particular interest in extra-judicial dispute resolution methods as part of a broader effort to promote better access to justice. For example, Directive 2008/52 sets out a framework for the use of mediation in cross-border disputes on civil and commercial matters. The European Commission's influential Recommendations 98/257 and 2001/310, which respectively deal with out-of-court dispute settlements and consensual dispute mechanisms, constitute a starting point for constructing a new approach to ADR. In March of 2013, the European Parliament and the …
Plurality Influence: Reed Elsevier And The Precedential Value Of Bazzle On Class Arbitrability, Kevin P. Sack
Plurality Influence: Reed Elsevier And The Precedential Value Of Bazzle On Class Arbitrability, Kevin P. Sack
Journal of Dispute Resolution
Class arbitration is a tricky process to navigate as it introduces more parties, higher stakes, and more procedures than typical bilateral arbitration. Because class arbitration is more complex, the determination as to whether an arbitration agreement authorizes class arbitration (class arbitrability) is an important one, and the entity that makes the class determination should be knowledgeable about class procedures in order to be suited to make such an important finding. In Reed Elsevier, Inc. ex rel. LexisNexis Div. v. Crockett, the Sixth Circuit held that the determination of class arbitrability should be presumptively reserved to judicial courts, not arbitrators, unless …
Restoring Our Children's Future: Ending Disparate School Discipline Through Restorative Justice Practices, Kaeanna Wood
Restoring Our Children's Future: Ending Disparate School Discipline Through Restorative Justice Practices, Kaeanna Wood
Journal of Dispute Resolution
This note opens the discussion on disparate school discipline with a case harboring egregious facts, then goes on to explore the history of zero-tolerance policies as the primary method of school discipline, federal civil rights laws prohibiting discrimination based on race in school discipline, and the rise of restorative practices as a means of school discipline. In conclusion, this note argues that in implementing restorative justice practices as an alternative dispute resolution method, schools can end a pattern of disproportionately disciplining African American and Hispanic students and create an environment that fosters success for all children.
The Negotiation Within: The Impact Of Internal Conflict Over Identity And Role On Across-The-Table Negotiations, Robert C. Bordone, Tobias C. Berkman, Sara E. Del Nido
The Negotiation Within: The Impact Of Internal Conflict Over Identity And Role On Across-The-Table Negotiations, Robert C. Bordone, Tobias C. Berkman, Sara E. Del Nido
Journal of Dispute Resolution
This article argues that negotiators' experiences of internal conflict over their identity and role - what we term "the negotiation within" - has a significant impact on across-the-table negotiations in the legal profession and in business. This impact has been mostly overlooked by the literature on negotiation, which focuses on strategic, structural, and psychological barriers to negotiated agreements that are divorced from the real, internal experiences of most negotiators. The article analyzes the impact and suggests a typology for naming and understanding internal conflict. It concludes with a three-stage prescription on how to manage such conflicts described as Mirror work, …
Day's Pyramid Ignores Sturdy Severability Foundation, Builds Off Granite Rock: Day V. Fortune Hi-Tech Marketing, Inc., Wesley K . Dagestad
Day's Pyramid Ignores Sturdy Severability Foundation, Builds Off Granite Rock: Day V. Fortune Hi-Tech Marketing, Inc., Wesley K . Dagestad
Journal of Dispute Resolution
Persons involved in a pyramid scheme are often blind to the overarching pyramid's purpose; similarly, contracting parties may possess little initial knowledge of an agreement's terms in their entirety. Arbitration agreements and other contractual obligations can be hidden in the depths of multiple documents, memorialized through simultaneous agreements incorporating the additional terms by various references. After Day, courts may now be required to dig through countless terms to parties' agreements to determine if a valid contract exists, and if so, which agreement governs the dispute at issue. After sifting through this contractual jungle, courts will be forced to take one …
Escaping From Lawyers' Prison Of Fear, John Lande
Escaping From Lawyers' Prison Of Fear, John Lande
Faculty Publications
Lawyers regularly experience numerous fears endemic to their work. This is not surprising considering that lawyers generally operate in environments that frequently stimulate many fears. Lawyers’ fears can lead them to enhance their performance due to increased preparation and effective “thinking on their feet.” Fear is problematic when it is out of proportion to actual threats, is expressed inappropriately, or is chronically unaddressed effectively. It can lead to sub-optimal and counterproductive performance through paralysis, ritualized behavior, or inappropriate aggression. Some lawyers’ fears unnecessarily prevent them from performing well, producing good results for clients, earning more income, and experiencing greater satisfaction …
Head Of The Class: Oxford Health Plans And The Uncertain Future Of Class Arbitrability Determinations, Kevin Sack
Head Of The Class: Oxford Health Plans And The Uncertain Future Of Class Arbitrability Determinations, Kevin Sack
Journal of Dispute Resolution
Arbitration clauses allow contracting parties to resolve their contractual disputes without being subjected to lengthy and expensive judicial processes. Arbitrators are authorized to interpret contractual arbitration agreements to determine which issues the parties agreed to arbitrate. However, contract arbitration provisions are often silent as to the availability of class action procedures. Oxford Health Plans LLC v. Sutter held that, when parties expressly agree to allow an arbitrator to interpret whether their agreement allows class action arbitration, the arbitrator does not exceed his authority in doing so, regardless of interpretive error.' This note first discusses how the United States Supreme Court …
Beyond International Commercial Arbitration? The Promise Of International Commercial Mediation, S. I. Strong
Beyond International Commercial Arbitration? The Promise Of International Commercial Mediation, S. I. Strong
Faculty Publications
Although international commercial arbitration has long been the preferred means of resolving cross-border business disputes, the international corporate community has become increasingly concerned about increasing costs, delays and procedural formalities. As a result, parties are looking for other means of resolving cross-border business disputes. One of the more popular alternatives is mediation. Advocates of mediation extol its many benefits, including its ability to resolve disputes more quickly and with fewer costs and formalities than other alternatives. However, very little research exists on how mediation operates in the international commercial context. This Essay therefore considers whether and to what extent international …
Anti-Arbitration Injunctions In Cases Involving Investor-State Arbitration: British Caribbean Bank Ltd. V. The Government Of Belize, S. I. Strong
Faculty Publications
Over the last few years, the international legal community has become increasingly interested in anti-arbitration injunctions, which are analogous to antisuit injunctions except that the former prohibits the initiation or continuation of an arbitration while the latter focuses on judicial actions. At this point, very few courts have actually issued an injunction of this type. Nevertheless, a number of commentators have expressed concern about these mechanisms, since they can wreak havoc with contractual or treaty-based expectations about how a particular dispute is to be resolved. Indeed, some scholars and practitioners would prefer that these sorts of injunctions be made universally …
Opening Remarks, October 4, 2013 Symposium: Resolving Ip Disputes: Calling For An Alternative Paradigm, James Levin
Opening Remarks, October 4, 2013 Symposium: Resolving Ip Disputes: Calling For An Alternative Paradigm, James Levin
Journal of Dispute Resolution
Today, 225 years after the Constitution was drafted, we can look back and see how the protection of individual property through our patent system has helped our country grow. In 2012 alone, there were more than 576,763 U.S. patents applications filed and 276,788 patents issued. These numbers don't include the tens of thousands of patents that were bought, sold, and licensed in the private market each year. Not surprisingly, an ever-increasing number of patents are challenged through litigation. In 2012, almost 5000 patent infringement cases were filed. Litigation expenses can easily cost each party in a dispute millions of dollars, …
Patent Prosecution As Dispute Resolution: A Negotiation Between Applicant And Examiner, Jaron Brunner
Patent Prosecution As Dispute Resolution: A Negotiation Between Applicant And Examiner, Jaron Brunner
Journal of Dispute Resolution
The phrase "negotiation is ubiquitous" has been used countless times by negotiation scholars, corporate executives, and cognitive psychologists.' At its most basic level, negotiation is simply a communication between parties when one party wants something from the other. In the legal setting, parties use negotiation to attempt to divide up limited resources, reach a settlement and attempt to execute a contract. Even procedures as mundane as filing for a patent in the United States can, and have been, described as a complex negotiation.4 However, while many practitioners describe responding to the United States Patent and Trademark Office (USPTO) as a …
Developing A Framework For Arbitrating Standards-Essential Patent Disputes, Jorge L. Contreras, David L. Newman
Developing A Framework For Arbitrating Standards-Essential Patent Disputes, Jorge L. Contreras, David L. Newman
Journal of Dispute Resolution
This article lays the groundwork for the development of such procedures and identifies several key areas requiring further study and deliberation. Particular attention is paid to fundamental questions such as whether SEP arbitration should be mandated by SDOs, which conflicts should be arbitrated, whether arbitral decisions should be confidential, and what form arbitration proceedings should take. While, at this early stage, these difficult questions cannot be answered definitively, this article offers a framework for further discussion that the authors hope will be useful for policy makers, industry participants, and commentators considering these important issues.
Intersection Of Patent Infringement And Antitrust Liability In Abbreviated New Drug Application Litigation, The, Kevin E. Noonan
Intersection Of Patent Infringement And Antitrust Liability In Abbreviated New Drug Application Litigation, The, Kevin E. Noonan
Journal of Dispute Resolution
A battle has been raging, over the past ten years, regarding the competing interests of patent protection and antitrust prohibitions in the specialized area of law concerned with patented drugs regulated by the Food and Drug Administration ("FDA").' The contestants are the Federal Trade Commission ("FTC") and parties to Abbreviated New Drug Application (ANDA) litigation, which are a branded drug company and a generic challenger.
Public Injunctions As A Way Around Concepcion: California's Continued Resistance To The Federal Arbitration Act, Elizabeth Kiesewetter
Public Injunctions As A Way Around Concepcion: California's Continued Resistance To The Federal Arbitration Act, Elizabeth Kiesewetter
Journal of Dispute Resolution
This note outlines the general applicability of the FAA and preemption. Next, it examines the Supreme Court's precedent concerning preemption, as it relates to class actions and public policy. This note argues that California's public injunction exception does prohibit outright the arbitration of a particular type of claim and is, thus, preempted by the FAA. The Supreme Court will likely see this rule as being at odds with the FAA and as another repudiation from the California courts of their long-standing FAA jurisprudence. Finally, this note argues that, despite the likely preemption of California's rule, there are strong policy arguments …
Case Study In Patent Litigation Transparency, A, Bernard Chao, Derigan Silver
Case Study In Patent Litigation Transparency, A, Bernard Chao, Derigan Silver
Journal of Dispute Resolution
By focusing on a single high profile patent case, Monsanto v. DuPont, this article explores the problem of transparency in patent litigation from two perspectives. First, this article provides metrics for understanding the nature and quantity of documents that were filed under seal in the Monsanto case. Second, this article scrutinizes particular aspects of the case to provide a more nuanced understanding of what the public cannot see. Although primarily descriptive, this article critically analyzes the sealing of so many documents by questioning the level of judicial oversight applied in decisions to seal court filings. It then goes on to …
Future Of Mandatory Employee Arbitration Agreements, The, Marcy Greenwade
Future Of Mandatory Employee Arbitration Agreements, The, Marcy Greenwade
Journal of Dispute Resolution
First, this note examines the historical interpretations of arbitration agreements under the FAA and the NLRA. Next, it explores the reasoning behind the discrepancies that exist between the judicial and administrative arbitration decisions. Additionally, this note assesses the lack of a uniform standard and its effect on decision makers, employers, and employees. Lastly, this note evaluates the potential implications of a liberal policy favoring arbitration in the context of mandatory employee arbitration agreements.
Pressure To Plead: How Case-Management Mediation Will Alter Criminal Plea-Bargaining, Taylor C. Leonard
Pressure To Plead: How Case-Management Mediation Will Alter Criminal Plea-Bargaining, Taylor C. Leonard
Journal of Dispute Resolution
This note first discusses the facts and proceedings in Milligan. Next, it explores the history and importance of plea-bargaining in the United States and how mediation has slowly become a part of criminal proceedings. Next, this note examines the Milligan court's reasoning for upholding the mediation plea bargain at issue in that case, in light of the legal landscape concerning ADR and the criminal justice system. Finally, this note argues in favor of using case-management mediation in criminal plea negotiations, and explores the proper methods and procedures to make these mediations successful.