Law Commons^™

Mandatory Arbitration Stymies Progress Towards Justice In Employment Law: Where To, #Metoo?, Jean R. Sternlight

Scholarly Works

Today our employment law provides workers with far more protection than once existed with respect to hiring, firing, salary, and workplace conditions. Despite these gains, continued progress towards justice is currently in jeopardy due to companies’ imposition of mandatory arbitration on their employees. By denying their employees access to court, companies are causing employment law to stultify. This impacts all employees, but particularly harms the most vulnerable and oppressed members of our society for whom legal evolution is most important. If companies can continue to use mandatory arbitration to eradicate access to court, where judges are potentially influenced by social …

Bridging The Gap Between Intent And Status: A New Framework For Modern Parentage, Yehezkel Margalit

Hezi Margalit

The last few decades have witnessed dramatic changes in the conceptualization and methodologies of determining legal parentage in the U.S. and other countries in the western world. Through various sociological shifts, growing social openness and bio-medical innovations, the traditional definitions of family and parenthood have been dramatically transformed. This transformation has led to an acute and urgent need for legal and social frameworks to regulate the process of determining legal parentage. Moreover, instead of progressing in a piecemeal, ad-hoc manner, the framework for determining legal parentage should be comprehensive. Only a comprehensive solution will address the differing needs of today’s …

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) …

The 2012 Saudi Arbitration Law: A Comparative Examination Of The Law And Its Effect On Arbitration In Saudi Arabia, Faris K. Nesheiwat, Ali Khasawneh

Ferris K Nesheiwat

A major concern for any outside investor in the Middle East's largest economy is that arbitration in Saudi Arabia is notoriously complicated, time-consuming, and prone to interference by the local courts, while arbitral awards have often faced difficulties in being enforced. A new Saudi Arbitration Law was issued by Royal Decree No. M/34 on April 16th, 20124 (the “New Law”), which came into force on 9 July 2012. The New Law, which is covered in 58 Articles, is intended to alleviate many of the shortcomings of the Saudi Arbitration Law of 1983 (the “Old Law”) and strengthen investors' confidence in …

The Power Of The Body: Analyzing The Corporeal Logic Of Law And Social Change In The Arab Spring, Zeina Jallad, Zeina Jallad

Zeina Jallad

The Power of the Body:

Analyzing the Logic of Law and Social Change in the Arab Spring

Abstract:

Under conditions of extreme social and political injustice - when human rights are under the most threat - rational arguments rooted in the language of human rights are often unlikely to spur reform or to ensure government adherence to citizens’ rights. When those entrusted with securing human dignity, rights, and freedoms fail to do so, and when other actors—such as human rights activists, international institutions, and social movements—fail to engage the levers of power to eliminate injustice, then oppressed and even quotidian …

State Legislative Update, Morgan L. Maples, Timothy Mcaleenan, Julia Neidhardt, Spring E. Taylor

Journal of Dispute Resolution

Effective July 1, 1995, as part of the nursing facility enforcement regulations, the Centers for Medicare & Medicaid Services required states to provide nursing facilities with the opportunity for informal dispute reolution reviews. This dispute resolution system was set up in order to avoid the potentially prolonged resolution process associated with more formal appeals. These regulations do not prevent a nursing facility from pursuing a former appeal of the disputed deficiency, but the regulations do give an expedited alternative to the formal process.

Normalizing Disability In Families, Mary Crossley

Articles

In “Selection against Disability: Abortion, ART, and Access,” Alicia Ouellette probes a particularly vexing point of intersection between ART (assisted reproductive technology) and abortion: how negative assumptions about the capacities of disabled persons and the value of life with disability infect both prospective parents’ prenatal decisions about what pregnancies to pursue and fertility doctors’ decisions about providing services to disabled adults. This commentary on Ouellette’s contribution to the symposium titled “Intersections in Reproduction: Perspectives on Abortion and Assisted Reproductive Technologies" first briefly describes Ouellette’s key points and her article’s most valuable contributions. It then suggests further expanding the frame of …

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.

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 …

In Defense Of Idea Due Process, Mark C. Weber

Mark C. Weber

Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker. This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and …

State Legislative Update, Molly Karcher, Alexandra Klaus, Ryan J. Nichols, Stanley A. Prenger

Journal of Dispute Resolution

As the use of collaborative law increases, the need for uniform laws to help facilitate this process across state lines grew. In February 2007, the Uniform Law Commission (ULC) began drafting an act to address this need. At the July 2009 meeting, the Uniform Collaborative Law Act (UCLA) was unanimously approved by the Commission and was subsequently submitted to the American Bar Association (ABA) House of Delegates for approval. In March 2010, the house approved the amended act after the ULC made a few small changes per the house's recommendation. Since receiving ABA approval, the UCLA has been passed in …

Much Ado About Nothing?: What The Numbers Tell Us About How State Courts Apply The Unconscionability Doctrine, Susan D. Landrum

Susan Landrum

No abstract provided.

Investment Dispute Resolution Under The Transpacific Partnership Agreement: Prelude To A Slippery Slope?, Leon E. Trakman Professor

Leon E Trakman Dean

Intense debate is currently brewing over the multistate negotiation of the Transpacific Partnership Agreement [TPPA], led by the United States. The TPPA will be the largest trade and investment agreement after the European Union, with trillions of investment dollars at stake. However, there is little understanding of the complex issues involved in regulating inbound and outbound investment. The negotiating of the TPPA is shrouded in both mystery and dissension among negotiating countries. NGOs, investor and legal interest groups heatedly debate how the TPPA ought to regulate international investment. However this dissension is resolved, it will have enormous economic, political and …

Institutionalization Of Alternative Dispute Resolution By The State Of California , Bruce Monroe

Pepperdine Law Review

No abstract provided.

Recent Developments In Alternative Dispute Resolution , Lee R. Petillon

Pepperdine Law Review

No abstract provided.

Ending Judgment Arbitrage: Jurisdictional Competition And The Enforcement Of Foreign Money Judgments In The United States, Gregory Shill

Gregory Shill

Recent multi-billion-dollar damage awards issued by foreign courts against large American companies have focused attention on the once-obscure, patchwork system of enforcing foreign-country judgments in the United States. That system’s structural problems are even more serious than its critics have charged. However, the leading proposals for reform overlook the positive potential embedded in its design.

In the United States, no treaty or federal law controls the domestication of foreign judgments; the process is instead governed by state law. Although they are often conflated in practice, the procedure consists of two formally and conceptually distinct stages: foreign judgments must first be …

State Legislative Update , Lacy Cansler, Daniel Levy, Kelisen Molloy, Henry Tanner

Journal of Dispute Resolution

While on the surface it seems like any legislation helping Americans keep their homes is a good idea, some critics question the effectiveness of these laws. They cite evidence (to be discussed below) showing foreclosure rates do not improve in states with foreclosure mediation laws. Others argue that while it may only be a short-term fix towards the larger problems that ail our economy, foreclosure mediation has shown to be a positive measure that helps many Americans, especially when the law is properly written. This paper will analyze the recent foreclosure mediation laws, and will explore the effectiveness of this …

Eliminating The Mandatory Trade-Off: Should Employees Have The Right To Choose Arbitration ?, Michael Peabody

Pepperdine Dispute Resolution Law Journal

As more employers include mandatory arbitration provisions in their employment contracts, policy-makers are becoming concerned that employees are being forced to trade their civil and statutory rights for their jobs. The California Legislature is considering legislation designed to combat this tendency and to provide legal protection for employees who might otherwise be forced to waive the right for redress of grievances, legal protections against discrimination, and other rights. Although the legislation was designed to protect the constitutional rights of employees, there are legal considerations and policy concerns that challenge the viability of this type of legislation. The primary question is …

Why The States Should Enact The Revised Uniform Arbitration Act, Francis J. Pavetti

Pepperdine Dispute Resolution Law Journal

This article responds to concerns raised regarding the Revised Uniform Arbitration Act (RUAA), noting that such concerns appear to be based on misplaced assumptions and misconceptions.

The 2000 Revision To The Uniform Arbitration Act: A Harbinger?, Timothy J. Heinsz

Pepperdine Dispute Resolution Law Journal

On August 3, 2000, the National Conference of Commissioners on Uniform State Laws (NCCUSL) unanimously passed major revisions to the Uniform Arbitration Act (UAA). These revisions are the first substantive changes in 55 years to the UAA, which in some form is the basis of arbitration law in 49 jurisdictions. The federal counterpart to the UAA, the Federal Arbitration Act (FAA), has not been amended in any substantial fashion for nearly 75 years. Between Congress's passage of the FAA in 1925 and NCCUSL's approval of the UAA in 1955 and the NCCUSL's approval of the Revised Uniform Arbitration Act (RUAA) …

The September 11th Victim Compensation Fund: The Answer To Victim Relief?, Joe Ward

Pepperdine Dispute Resolution Law Journal

The events of September 11, 2001 shook America to its core. The world was forever changed as the horrific tragedy unfolded on live television. Families were destroyed as loved ones were severely injured or killed, leaving spouses and children in need of aid. In response, the United States government established the September 11th Victims' Compensation Fund in an effort to provide the necessary reparations to victims of the terrorist attacks. This article will analyze the September 11th Victims' Compensation Fund (hereafter "Fund") as a way of compensating victims while preserving the financial stability of the United States economy. This Fund …

Do We Have 18th Century Courts For The 21st Century, Michael Buenger

Michael Buenger

State courts continue to face both funding and political challenges. In light of these challenges state court leaders, the bar and legal educators should undertake a serious rethinking of our state courts along three thematic lines: (1) systemic reorganization to reduce fragmentation, simplify access, and provide greater flexibility and specialization in the use of resources; (2) diversification of dispute resolution processes so that cases move in different directions with a range of resolution options pegged to the issues presented; and (3) rationalization of governance, leadership, and accountability systems to enhance effective organizational management of complex institutions.

State Legislative Update , Benjamin Angulo, Daniel J. Romine, Matthew Schacht

Journal of Dispute Resolution

This analysis will examine the sample of bills in four parts. Because some of the proposed state bills are silent on whether their respective bills are reserved for non-commercial matters, Part II examines whether the bills apply to businesses that are parties to business-to-business international commercial contracts. Part III assesses the bills' definition of foreign law to better understand the scope of the anti-foreign law bans. Because each anti-foreign law bill initially defines foreign law as one that is created outside the U.S., Part III analyzes whether the bills' foreign law definitions include international organizations and tribunals. It is important …

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.

State Legislative Update, Ashley Brittain, Sean Dolan, Alicia Hammond, Meghan Prideaux

Journal of Dispute Resolution

The purpose of this Bill is to provide notice to owners of residential real property owners that mediation with the mortgagee is an option at the onset of foreclosure proceedings. The Bill changes the mechanism by which borrowers are notified of foreclosures; instead of receiving a writ and summons, borrowers receive a notice of mediation, a foreclosure mediation certificate, and a blank appearance form. Borrowers still receive the writ, summons, and complaint, however. The lender must appear at the mediation with the authority to approve a proposed settlement in order to receive a remedy, and no attorney's fees will be …

State Legislative Update, Gregory Cassens, Matthew D. Decker, Carly Duvall, Claire Mcguire

Journal of Dispute Resolution

The purpose of this Bill is to provide an alternative approach for individuals with a cause of action against a municipality.' Rather than the costly and time-consuming traditional method of hiring an attorney and filing a lawsuit, House Bill 2631 offers individuals an opportunity for Alternative Dispute Resolution ("ADR") in the form of arbitration. The Bill would allow any individual with a claim in contract or tort against a municipality to require the municipality to submit to the arbitration of the claim. The purpose of House Bill 2631 is to facilitate the resolution of individual claims against a city. However, …

State Legislative Update, J. Matthew Belz, Caleb Lewis, Remington Smith, Peter Wilder

Journal of Dispute Resolution

Collaborative law is a relatively new dispute resolution method by which parties mutually agree to negotiate a settlement in good faith. Either party may terminate the collaborative process at will and present the matter to a court for a decision. Upon termination of the collaborative process, both attorneys must withdraw and cease all participation in the case. The continuing saturation of court dockets and the expense of litigation require the promotion of viable, alternative means to resolve disputes. Collaborative law as authorized under Texas Senate Bill 942 is an especially attractive process because it demands cooperation between the disputing parties …

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.

Jumping On The Bandwagon: How Canadian Lawyers Can & Should Get Involved In The Emerging Trend To Implement Therapeutic Jurisprudence Practices In Canadian Courts, Brooke Bloom

ExpressO

No abstract provided.

State Legislative Update, Melissa Blair, Michael Benton, Jessica Gunder, David Lefevre

Journal of Dispute Resolution

As of December 1, 2006, twenty-eight states have enacted some type of right to cure legislation. On April, 28, 2006, Georgia, one of the twenty-eight, amended its construction defect dispute resolution procedures to clarify the responsibilities of the parties. Pennsylvania attempted to become the twenty-ninth, the bill having passed both houses of the legislature, but the Governor vetoed the bill on March 17. Right to cure legislation was considered in South Dakota, but it was deferred to the 36th Legislative Day on February 8, 2006.