Open Access. Powered by Scholars. Published by Universities.®
- Institution
- Publication Year
- Publication
- Publication Type
- File Type
Articles 1 - 30 of 38
Full-Text Articles in Law
When Less Is More: The Limitless Potential Of Limited Scope Representation To Increase Access To Justice For Low- To Moderate-Income Individuals, Kristy D'Angelo-Corker
When Less Is More: The Limitless Potential Of Limited Scope Representation To Increase Access To Justice For Low- To Moderate-Income Individuals, Kristy D'Angelo-Corker
Faculty Scholarship
No abstract provided.
Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel
Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel
Nehal A. Patel
AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …
L'Avvocato-Arbitro Nell'art. 61 Del Nuovo Codice Deontologico Forense, Valerio Sangiovanni
L'Avvocato-Arbitro Nell'art. 61 Del Nuovo Codice Deontologico Forense, Valerio Sangiovanni
Valerio Sangiovanni
No abstract provided.
Crowdsourcing (Bankruptcy) Fee Control, Matthew Bruckner
Crowdsourcing (Bankruptcy) Fee Control, Matthew Bruckner
Matthew Adam Bruckner
In this article, I explore how crowdsourcing can help reduce the cost of professional representation in corporate bankruptcy cases. The cost of professional representation in bankruptcy cases is currently a hot topic, with oral argument haven taken place before the U.S. Supreme Court in Baker Botts L.L.P. v. Asarco, L.L.C. in February 2015, which case addressed various issues raised in my article. In brief, the fees of lawyers, investment bankers, and other bankruptcy professionals has been spiraling out of control because chapter 11’s existing fee control system is broken. That system can neither identify nor control professional overcharging, which empirical …
When Peace Is Not The Goal Of A Class Action Settlement, D. Theodore Rave
When Peace Is Not The Goal Of A Class Action Settlement, D. Theodore Rave
D. Theodore Rave
On the conventional account, a class action settlement is a vehicle through which the defendant buys peace from the class action lawyer. That single transaction will preclude future litigation by all class members. But peace, at least through preclusion, may not always be the goal. In a recent Fair Credit Reporting Action (FCRA) case, In re Trans Union Privacy Litigation, the parties agreed to a class action settlement that did not preclude individual claims. The 190 million class members surrendered only their rights to participate in a future class or aggregate action; they remained free to march right back into …
The Moral Lawyer And The Machiavellian Nature Of Law Practice, David Barnhizer
The Moral Lawyer And The Machiavellian Nature Of Law Practice, David Barnhizer
David Barnhizer
In Western culture the name Niccolo Machiavelli has become Machiavellianism, a pejorative signifying the willingness to do anything to achieve desired ends. American lawyers do have limits, however, and are expected to operate according to an ethical code that is at least intended to prevent the worst abuses. The effectiveness of this ethical code has often been questioned, as have the questionable efforts of the organized bar to enforce its rules, but on the surface it differentiates law practice from hand-to-hand combat and military struggles. Even though I have sometimes used the concepts of the warrior lawyer, the general and …
Negotiator's Nook: The Ins And Outs Of Effective Negotiation, David Spratt
Negotiator's Nook: The Ins And Outs Of Effective Negotiation, David Spratt
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Lawyer, Form Thyself: Professional Identity Formation Strategies In Legal Education, Professional Responsibility, And Experiential Courses, Susan S. Daicoff
Lawyer, Form Thyself: Professional Identity Formation Strategies In Legal Education, Professional Responsibility, And Experiential Courses, Susan S. Daicoff
Susan Daicoff
Professional identity formation as a learning objective in law school may appear to be nontraditional and perhaps even innovative. While perhaps not a new concept, it is not typically an explicit goal of legal education. Empirical data finds that law school has demonstrable effects upon law students’ professional development; it also finds that certain nontraditional skills and competencies (or “soft skills”) make lawyers most effective. This article argues for explicit planning for and inclusion of professional identity development, including training in these nontraditional skills, in legal education. Professional identity encompasses one’s values, preferences, passions, intrinsic satisfactions, emotional intelligence, as well …
"What Did You Say?": Semantic Polysemy In California Juvenile Dependency Dispute Resolution, Kelly X. Ranasinghe
"What Did You Say?": Semantic Polysemy In California Juvenile Dependency Dispute Resolution, Kelly X. Ranasinghe
Kelly X Ranasinghe
Non-adversarial resolution of dependency cases is a statutorily mandated practice in California. Practitioners in California Juvenile Dependency courts attempt to settle cases without litigation, relying instead on negotiation between the various parties using informal discourse. This discourse utilizes polysemous dependency terms affecting the contextual understanding of statements by creating underlying ambiguity. The ambiguity of these terms creates communicative interference by engendering misunderstanding, lack of specificity and other communication problems. By recognizing polysemous qualities of core terms used in dependency discourse, practitioners can communicate more effectively and efficiently when resolving cases.
The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson
The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson
Hillary A Henderson
Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …
Commercial Arbitration And Settlement: Empirical Insights Into The Roles Arbitrators Play, Thomas Stipanowich, Zachary Ulrich
Commercial Arbitration And Settlement: Empirical Insights Into The Roles Arbitrators Play, Thomas Stipanowich, Zachary Ulrich
Thomas J. Stipanowich
A wide-ranging new Straus Institute for Dispute Resolution Survey of experienced arbitrators, conducted with the cooperation of the College of Commercial Arbitrators, reflects the growing professionalization of commercial arbitration, increasing competition for cases, and many other trends in arbitration practice. It also shows that a grower percentage of arbitrated cases are being settled prior to award or to the start of hearings, and offers a strong rationale for greater emphasis on the role of arbitrators in setting the stage for or facilitating settlement. Early settlement of a dispute can be a uniquely effective way of minimizing cost and cycle time …
Managing Construction Conflict: Unfinished Revolution, Continuing Evolution, Thomas Stipanowich
Managing Construction Conflict: Unfinished Revolution, Continuing Evolution, Thomas Stipanowich
Thomas J. Stipanowich
Two decades ago many believed we were experiencing a “Quiet Revolution” in the way conflict was managed, and nowhere was this more true than in the construction sector. Frustration with the costs, delays, risks and limitations of lawyer-driven adjudication prompted growing attention to informal methods aimed at early resolution of disputes, with those who “owned” the dispute back in the driver’s seat. A smorgasbord of options for preventing, managing and resolving conflict was suddenly on the table. There were strategies aimed at the very roots of conflict, including contractual terms aimed at promoting collaboration and reducing the chance of serious …
Living With Adr: Evolving Perceptions And Use Of Mediation, Arbitration And Conflict Management In Fortune 1,000 Corporations, Thomas Stipanowich, Ryan Lamare
Living With Adr: Evolving Perceptions And Use Of Mediation, Arbitration And Conflict Management In Fortune 1,000 Corporations, Thomas Stipanowich, Ryan Lamare
Thomas J. Stipanowich
As attorneys for the world’s most visible clients, corporate counsel played a key role in the transformation of American conflict resolution in the late Twentieth Century. In 1997 a survey of Fortune 1,000 corporate counsel provided the first broad-based picture of conflict resolution processes within large companies. In 2011, a second landmark survey of corporate counsel in Fortune 1,000 companies captured a variety of critical changes in the ways large companies handle conflict. Comparing their responses to those of the mid-1990s, clear and significant evolutionary trends are observable, including a further shift in corporate orientation away from litigation and toward …
Lessons From Teaching Students To Negotiate Like A Lawyer, John Lande
Lessons From Teaching Students To Negotiate Like A Lawyer, John Lande
John Lande
The legal education system is in a major crisis now, in part because law schools do not prepare students adequately to practice law. Law schools should do a better job of teaching negotiation, in particular, because it is a significant part of the work of virtually every practicing lawyer. This includes lawyers who handle civil and criminal matters and lawyers who do litigation as well as those who do transactional work. Negotiation is especially important because most litigated cases are settled and virtually all unstandardized transactions are negotiated. Most law school negotiation courses rely primarily or exclusively on simulations in …
Law And Negotiation: Necessary Partners Or Strange Bedfellows?, Nancy Schultz
Law And Negotiation: Necessary Partners Or Strange Bedfellows?, Nancy Schultz
Nancy Schultz
To what degree does legal authority dictate the outcomes of negotiations? Scholars have discussed the issue, and law students argue about it in their negotiation classes. A survey of practicing lawyers reveals that knowing the law is an important part of the preparation for negotiation, but that legal authority is not the primary determinant of negotiated outcomes in practice. Financial constraints, bargaining power, and negotiating skill are all reported as having a greater effect on negotiated outcomes than the law.
In Quest Of The Arbitration Trifecta, Or Closed Door Litigation?: The Delaware Arbitration Program, Thomas Stipanowich
In Quest Of The Arbitration Trifecta, Or Closed Door Litigation?: The Delaware Arbitration Program, Thomas Stipanowich
Thomas J. Stipanowich
The Delaware Arbitration Program established a procedure by which businesses can agree to have their disputes heard in an arbitration proceeding before a sitting judge of the state’s highly regarded Chancery Court. The Program arguably offers a veritable trifecta of procedural advantages for commercial parties, including expert adjudication, efficient case management and short cycle time and, above all, a proceeding cloaked in secrecy. It also may enhance the reputation of Delaware as the forum of choice for businesses. But the Program’s ambitious intermingling of public and private forums brings into play the longstanding tug-of-war between the traditional view of court …
Teaching Students To Negotiate Like A Lawyer, John Lande
Teaching Students To Negotiate Like A Lawyer, John Lande
John Lande
Teaching students to negotiate effectively is central to their thinking, acting, and being like good lawyers. Virtually all lawyers spend much of their time negotiating, whether they deal with disputes or transactions. So law school negotiation courses should provide the most realistic possible portrayal of legal negotiation. This essay is intended to help instructors plan and teach negotiation courses, recognizing that every course should be tailored to fit the interests, capabilities, resources, and constraints of the instructors and students. This essay argues that many lawyers engage in “ordinary legal negotiation” (OLN), which is distinct from “romantic” theories of positional and …
Getting Good Results For Clients By Building Good Working Relationships With "Opposing Counsel", John Lande
Getting Good Results For Clients By Building Good Working Relationships With "Opposing Counsel", John Lande
John Lande
Lawyers’ relationships with their “opposing counsel” make a big difference in how well they handle their cases. “Opposing counsel” often do oppose each other, sometimes quite vigorously, though they also regularly cooperate with each other. In the normal course of litigation, lawyers need to cooperate on many procedural matters. In some cases, they also cooperate to achieve their respective clients’ substantive interests. If the lawyers have a bad relationship, the case is likely to be miserable for everyone involved. If they have a good relationship, they are more likely to agree on procedural matters, exchange information informally, take reasonable negotiation …
The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students For Real World Lawyering, John Lande, Jean R. Sternlight
The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students For Real World Lawyering, John Lande, Jean R. Sternlight
John Lande
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. Recognizing these substantial barriers, it proposes a modest and feasible menu of reforms that interested faculty and law schools can achieve without investing substantial additional resources. The proposals are not intended as a comprehensive package to be implemented on an all-or-nothing basis but as a set of options to be selected by individual faculty …
Collaborative Lawyers’ Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients’ Informed Consent To Use Collaborative Law, John Lande, Forrest S. Mosten
Collaborative Lawyers’ Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients’ Informed Consent To Use Collaborative Law, John Lande, Forrest S. Mosten
John Lande
Collaborative Law (CL) is an innovative dispute resolution process that offers significant benefits but also poses significant non-obvious risks. 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,” which provides that both CL lawyers would be disqualified from representing the clients if the case is litigated. CL is designed to encourage parties to stay in the process which can be good, though sometimes parties feel stuck there, having invested thousands of dollars and at risk of …
The Movement Toward Early Case Handling In Courts And Private Dispute Resolution, John Lande
The Movement Toward Early Case Handling In Courts And Private Dispute Resolution, John Lande
John Lande
This article identifies early case handling (ECH) as an important general phenomenon in dispute system design theory and practice, catalogs the major ECH processes, and urges practitioners and policymakers to encourage use of and experimentation with ECH processes when appropriate. The key element of ECH is that people intentionally exercise responsibility for handling the case from the outset. ECH processes in courts include early case management procedures, differentiated case management systems, early neutral evaluation, and other early alternative dispute resolution (ADR) processes. ECH in the private sector includes ADR pledges and contract clauses, early case assessment and ADR screening protocols, …
Empirically Evaluating Claims About Investment Treaty Arbitration, Susan Franck
Empirically Evaluating Claims About Investment Treaty Arbitration, Susan Franck
Articles in Law Reviews & Other Academic Journals
With the blossoming of empirical legal scholarship, there is an increased appreciation for the insights it offers issues of international importance. One area that can benefit from such inquiry is the resolution of disputes from investment treaties, which affects international relations, implicates international legality of domestic government conduct, and puts millions of taxpayer dollars at risk. While suggesting there has been a "litigation explosion", commentators make untested assertions about investment treaty disputes. Little empirical work transparently explores this area, however. As the first research that explains its methodology and results, this article is a modest attempt to evaluate claims about …
Principles For Policymaking About Collaborative Law And Other Adr Processes, John Lande
Principles For Policymaking About Collaborative Law And Other Adr Processes, John Lande
John Lande
This Article articulates a set of principles for policymaking about “alternative dispute resolution” (ADR) to promote values of process pluralism, choice in dispute resolution processes, and sound decisionmaking. It argues that policymakers should use a dispute system design (DSD) framework in analyzing policy options. DSD involves systematically managing a series of disputes rather than handling individual disputes on an ad hoc basis. It generally includes assessing the needs of disputants and other stakeholders, planning to address those needs, providing necessary training and education for disputants and dispute resolution professionals, implementing the system, evaluating it, and making periodic modifications as needed. …
The Effect Of Judicial Expedience On Attorney Fees In Class Actions, Eric Helland, Jonathan Klick
The Effect Of Judicial Expedience On Attorney Fees In Class Actions, Eric Helland, Jonathan Klick
All Faculty Scholarship
Judges facing exogenous constraints on their pecuniary income have an incentive to reduce their workload to increase their private welfare. In the face of an increase in caseload, this incentive will induce judges to attempt to terminate some cases more rapidly. In class action cases, failing to grant an attorney fee request will delay termination. This conflict is likely to lead judges to authorize higher fees as court congestion increases. Using two data sets of class action settlements, we show that attorney fees are significantly and positively related to the congestion level of the court hearing the case.
Conflicts Of Interest And Institutional Litigants, Curtis E.A. Karnow
Conflicts Of Interest And Institutional Litigants, Curtis E.A. Karnow
ExpressO
This paper uses techniques borrowed from the field of game theory to describe rational bargaining among institutional litigants, and explains how the results, while often not leading to the rational outcome in a given case, do rationally serve a more general strategy. The paper then reviews the law on conflicts of interests and concludes that such conflicts—as between attorney and client, and among clients—will often result when institutional litigants bargain. The paper continues with a review on the law of waiver and provides a basis to accommodate the conflicts of interests. That accommodation however will often not be practical, and …
A Complete Property Right Amendment, John H. Ryskamp
A Complete Property Right Amendment, John H. Ryskamp
ExpressO
The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.
Explaining The Value Of Transactional Lawyering, Steven L. Schwarcz
Explaining The Value Of Transactional Lawyering, Steven L. Schwarcz
ExpressO
This article attempts, empirically, to explain the value that lawyers add when acting as counsel to parties in business transactions. Contrary to existing scholarship, which is based mostly on theory, this article shows that transactional lawyers add value primarily by reducing regulatory costs, thereby challenging the reigning models of transactional lawyers as “transaction cost engineers” and “reputational intermediaries.” This new model not only helps inform contract theory but also reveals a profoundly different vision than existing models for the future of legal education and the profession.
In Facetiis Verititas: How Improv Comedy Can Help Lawyers Get Some Chops, Steven Lubet
In Facetiis Verititas: How Improv Comedy Can Help Lawyers Get Some Chops, Steven Lubet
ExpressO
Lawyers can learn a lot from the theory of improvisational comedy, and it isn’t just a matter of thinking on your feet. As we will explain, the key concept in both disciplines is the creation of a new, temporary reality. In improvisation, the cast must draw the audience into sharing the constructed reality of the stage, such that they can actually “see” the objects and characters portrayed, without the use of props or costumes. In trial, the lawyer must draw the jury into sharing the re-constructed reality of past events, such that they “see” what happened, even though they were …
Vengeance, Forgivness, Resentment, Jurisprudence, Dispute Resolution, Theodore Y. Blumoff
Vengeance, Forgivness, Resentment, Jurisprudence, Dispute Resolution, Theodore Y. Blumoff
ExpressO
Vengeance is generally accompanied by the moral emotion of resentment and indignation, which are also natural psychological reactions. We can and do give these emotions cognitive content, inasmuch as they have developed and matured over time with culture, but they are primitive. They arise when an individual suffers a non-trivial injury that was inflicted without excuse or justification. Among other injuries suffered, the harm done discounts the value we hold of ourselves as human beings, so that when this discounting (the crime or a substantial tort) occurs and we react defensively; our worth as an individual feels threatened. We hope …
Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp
Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp
ExpressO
This brief comment suggests where the anti-eminent domain movement might be heading next.