Law Commons^™

Technology Mediated Dispute Resolution Can Improve The Registry Of Interpreters For The Deaf Ethical Practices System: The Deaf Community Is Well Prepared And Can Lead By Example, David Allen Larson, Paula Gajewski Mickelson

Faculty Scholarship

The work of American Sign Language (ASL)/English interpreters is filled with complex interpersonal, linguistic and cultural challenges. The decisions and ethical dilemmas interpreters face on a daily basis are countless and the potential for disagreement regarding those decisions is great. Technology Mediated Dispute Resolution (TMDR) processes can be particularly helpful when misunderstandings and conflicts arise. Technology Mediated Dispute Resolution is a more inclusive phrase than Online Dispute Resolution (ODR) and includes cellular telephones, radio frequency devices, and satellite communication systems. The Deaf Community has learned to adapt and rely upon a variety of technologies and, because many Deaf individuals already …

Contracting Out Of The Ucc, Sarah Howard Jenkins

Faculty Scholarship

No abstract provided.

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble:" A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N. C. Smalkin

Faculty Scholarship

Recently, a respected jurist has lamented the declining number of federal jury trials. Chief Judge William Young of the United States District Court for the District of Massachusetts, writing in the Federal Lawyer, pointed out that jury trials in federal civil cases declined 26% in the decade between 1989 and 1999, which he attributed to four factors: the district court judiciary’s “loss of focus” on the core function of trying jury cases; the business community’s loss of interest in jury adjudication (“opting out of the legal system altogether” in favor of arbitration); Congress’s “marginalizing the district court judiciary”; and …

The Nature Of Arbitral Authority: A Comment On Lesotho Highlands, William W. Park

Faculty Scholarship

Arbitration unfolds within an enclosure created by the contract terms and the applicable arbitration law. Some measure of judicial scrutiny must be imposed to ensure that an award does not fall beyond an arbitrator’s authority. But how should one identify excess of authority? The House of Lords decision in Lesotho Highlands v. Impreglio serves as a prism through which to separate several themes that inhere in the nature of arbitral authority. In rejecting arguments that an error about the currency of an award represented an excess of jurisdiction, their Lordships confirmed a healthy appreciation that arbitrators do not exceed their …

An Essay Challenging The Racially Biased Selection Of Arbitrators For Employment Discrimination Suits, Michael Z. Green

Faculty Scholarship

Since 1991, employers have increasingly decided to require that employees agree to arbitrate statutory employment discrimination claims as a condition of employment. This Essay seeks to expose some of the potential discriminatory components that may arise in the arbitrator selection process while highlighting the lack of legal remedy for those who believe that employers, in conjunction with neutral service provders, have stacked the pool in favor of having arbitrators who tend to be older, white and male. The Essay suggests the use of 42 U.S.C. Section 1981 as a potential remedy and challenge to the dearth of arbitrators of color …

Arbitration: Governance Benefits And Enforcement Costs, Keith N. Hylton

Faculty Scholarship

These remarks, presented at the 2004 AALS Annual Meeting panel on civil procedure, review the economic theory of arbitration and related empirical evidence. For parties who can choose between alternative legal regimes, the key determinants of that choice are the governance benefits and enforcement costs connected to the rules under each regime. The choice between arbitration and litigation should be made on the same basis. The empirical literature, though sparse, suggests that superior governance benefits provide a significant reason for arbitration agreements.

Between Dialogue And Decree: International Review Of National Courts, Robert B. Ahdieh

Faculty Scholarship

Recent years have seen dramatic growth in the number of international tribunals at work across the globe, from the Appellate Body of the World Trade Organization and the International Tribunal for the Law of the Sea, to the Claims Resolution Tribunal for Dormant Claims in Switzerland and the International Criminal Court. With this development has come both increased opportunity for interaction between national and international courts and increased occasion for conflict. Such friction was evident in the recent decision in Loewen Group, Inc. v. United States, in which an arbitral panel constituted under the North American Free Trade Agreement found …

The Place Of Court-Connected Mediation In A Democratic Justice System, Nancy A. Welsh

Faculty Scholarship

A justice system, and the processes located within it, ought to deliver justice. That seems simple enough. But, of course, delivering justice is never so simple. Justice and the systems that serve it are the creatures of context.

This Article considers mediation as just one innovation within the much larger evolution of the judicial system of the United States. First, this Article outlines how the values of democratic governance undergird our traditional picture of the American justice system, presumably because the invocation of such values helps the system to deliver something that will be respected by the nation’s citizens as …

Developments In International Commercial Dispute Resolution In 2003, William W. Park

Faculty Scholarship

The past year was another active one for international commercial disputes, with significant although not revolutionary developments in U.S. arbitration law, and considerable growth in investor-State disputes under investment treaties.

The Specificity Of International Arbitration: The Case For Faa Reform, William W. Park

Faculty Scholarship

If a pollster asked a random selection of Americans for a one-line verbal portrait of arbitration, common responses might include the following: (i) private litigation arising for construction and business disputes; (ii) a mechanism to resolve workplace tensions between management and labor; (iii) a process by which finance companies and stock brokers shield themselves from customer complaints; (iv) a way to level the playing field in deciding commercial controversies among companies from different parts of the world; (v) the way big corporations use NAFTA to escape regulation. To some extent all would be correct.'

Unfortunately, these different varieties of arbitration …

The Economics Of Litigation And Arbitration: An Application To Franchise Contracts, Keith N. Hylton, Christopher R. Drahozal

Faculty Scholarship

If we define the deterrence benefits from contract enforcement as avoided harms net of avoidance costs, we should expect contracting parties to choose the dispute resolution forum that provides the greatest difference between deterrence benefits and dispute resolution costs for every type of dispute. We apply this general framework to franchise contracts and conduct an empirical analysis of the determinants of arbitration agreements among franchising parties. Although it is obvious that contracting parties have an incentive to choose arbitration in order to reduce dispute-resolution costs, there have been no studies of the importance of deterrence concerns. We examine the deterrence …

International Commercial Dispute Resolution, William W. Park, Andrea K. Bjorklund, Jack J. Coe

Faculty Scholarship

A recent Court of Appeals decision has made it more difficult for judges in the United States to second-guess arbitrators in international cases. To understand the significance of the recent decision, one must remember that the Federal Arbitration Act (FAA) has been interpreted to permit vacatur of awards in an international arbitration on the same grounds available in domestic cases. Thus, a litigant who is unhappy with an arbitrator's decision gets a chance to re-argue the case by alleging "manifest disregard of the law," a ground for judicial review created fifty years ago by Supreme Court dictum.

The New Face Of Investment Arbitration: Nafta Chapter 11, William W. Park

Faculty Scholarship

To protect American investment abroad, the United States traditionally endorsed arbitration as a preferred means to resolve disputes between investors and host countries. Yet a growing awareness of the down-side of arbitration, at least from the perspective of the party seeking the home-town justice of its own courts, has led to media attacks and legislative initiatives intended to hobble neutral international adjudication. This article suggests that assaults on investment arbitration are misguided, and may end up doing more harm than good. On balance, NAFTA arbitration serves as a positive force in the protection of legitimate economic expectations, enhancing the type …

Introduction To The Decennial Volume, George A. Bermann

Faculty Scholarship

Ten years ago, when the Columbia Journal of European Law began, the European Union was, as we tend to say, "in a different place" than it is today. The "internal market" or, as it was called, the "1992" program had very largely been achieved, validating the institutional changes wrought by the Single European Act and boosting incalculably the Community's credibility as a regional economic entity and potential international political force. The Member States had just successfully orchestrated what may fairly be regarded as their most ambitious Intergovernmental Conference to date, culminating in the Treaty of Maastricht. While the referendum road …

Arbitration And The Fisc: Nafta's Tax Veto, William W. Park

Faculty Scholarship

Taxes, said Franklin Roosevelt, "are the dues that we pay for the privileges of membership in an organized society." Harsher tongues describe tax as a form of property seizure. Somewhere between these competing characterizations of revenue raising-club dues and forced takings-lies a clue to why the North American Free Trade Agreement ("NAFTA") reserves special treatment for investment disputes implicating fiscal matters. NAFTA gives foreign investors a right to settle investment disputes by arbitration, a process more politically and procedurally neutral than either host state courts or foreign gunboats. Without the option to arbitrate, the specter of unfair expropriation might chill …

Civil Justice Reform Symposium: Introduction, James F. Hogg

Faculty Scholarship

Many people in the United States are not happy about the way in which litigation proceeds. In a country sometimes thought to be overpopulated with lawyers, either one party or both parties in a significant percentage of civil cases apparently cannot afford, or decline to retain, legal counsel. Financing for legal aid seems to be less than adequate, pro bono services are helping to some extent, but the administration of civil justice is in danger of sinking in the swamp of pro se ("do-it-yourself') litigation. The articles in this symposium discuss ideas for reform, such as introductory resources directed at …

Arbitration In Banking And Finance, William W. Park

Faculty Scholarship

The world's bifurcation into debtors and creditors has created yet another class of people: those involved in resolving disputes between lenders and borrowers. To promote reliability in financial dispute resolution, credit agreements have generally provided that potential controversies will be submitted either to courts in the bank's home jurisdiction, or to courts of a major money center such as London or New York.

Bridging The Gap In Forum Selection: Harmonizing Arbitration And Court Selection, William W. Park

Faculty Scholarship

More than one thoughtful international business manager has been haunted by the fear that foreign judges might not always respect Moses' admonition to impartiality., Concern that the other side will have an unfair advantage in its home court has often driven lawyers to include in international contracts one of two forum selection devices:2 an arbitration agreement entrusting the controversy to a private decision-maker or a courtselection clause granting adjudicatory power to courts at a designated location.3 Both mechanisms can enhance political and procedural neutrality, thereby facilitating business ventures when parties have a mutual mistrust of each other's courts and a …

Illusion And Reality In International Forum Selection, William W. Park

Faculty Scholarship

The text of a legal rule is often less important than the context of its interpretation and application. If a dispute between an American buyer and a French seller were to come before a French court, the buyer might be apprehensive not so much from any fearful oddity of French law, but because the adjudicatory procedure arguably gave the French side a "home court advantage." In some other countries, the integrity or independence of the judiciary may also be a matter of concern. In an international transaction, the absence of any reasonably neutral forum with compulsory jurisdiction makes the consequences …

From Star To Supernova To Dark, Cold Neutron Star: The Early Life, The Explosion And The Collapse Of Arbitration, Michael Hunter Schwartz

Faculty Scholarship

No abstract provided.

L'Arbitrage Et Le Recouvrement Des Prêts Consentis À Des Débiteurs Étrangers, William W. Park

Faculty Scholarship

L'auteur explore le rile complexe de 'arbitrage dans le rglement des difflrends financiers intemationaux impliquant des dettes privies et publiques. II onus rappelle que le diveloppement 6conomique global bnlficie d'un climat de confiance dons les relations commerciales internationales. Los doctrines juridiques et les procidures qui ajoutent de l'incertitude dans le processus de remboursement des prfts ne peuvent que freiner I'allocation de crdits qui pourraient autrement favoriser le commerce et l'investissement outre-frontikre, particuli~rement dons les pays en vole do diveloppement.

The author explores the complex role of arbitration in the settlement of international financial controversies involving both private and public debt. …

Real Property: 1991 Survey Of Florida Law, Ronald B. Brown

Faculty Scholarship

No abstract provided.

When The Borrower And The Banker Are At Odds: Arbitration And International Finance, William W. Park

Faculty Scholarship

Lenders and borrowers traditionally have gone before judges rather than arbitrators to resolve controversies arising out of international loan agreements. Arbitration has been relatively rare, even ill-favored, in financial dispute resolution. Except with respect to performance guarantees and securities, arbitrators seldom decide controversies arising out of financial transactions. The disfavored status of arbitration in banking contrasts sharply with arbitration's position as the preferred adjudicatory mechanism in trans-border commercial relationships.

Consequential Damages In Contracts For The International Sale Of Goods And The Legacy Of Hadley, Arthur Murphey

Faculty Scholarship

No abstract provided.

Unions And Urinalysis, Deborah A. Schmedemann

Faculty Scholarship

Many private employers seem to be busy deciding whether and how to test employees for drug use. Presumably most of these decisions are made by management acting alone. However, in unionized workplaces—one out of five private sector employees are represented by unions—federal labor law prescribes a different method. That method features collective bargaining by unions and management to set the rules, the use of a private third-party neutral to resolve disputes which arise under those rules (arbitration), and relatively little involvement by the government (the National Labor Relations Board, legislatures, and the courts). This system that labor law prescribes for …

Bandwagon Is Rolling: Adr Demands And Thrives On Lawyers Creative Thinking, Christine D. Ver Ploeg

Faculty Scholarship

The ADR (alternative dispute resolution) bandwagon is rolling. Clients are becoming disenchanted with traditional litigation, and they're hearing about ADR. ADR has three broad categories: mediation, the mini-trial, and arbitration. Attorneys can provide a real service to clients by being familiar with and developing skills in ADR.

Private Adjudicators And The Public Interest: The Expanding Scope Of International Arbitration, William W. Park

Faculty Scholarship

When Solomon arbitrated a child custody dispute, the baby almost perished.' Today's arbitrator probably could not propose such a drastic award. Yet courts may refuse to compel arbitration of some disputes for fear that societal interests may suffer a fate similar to that which would have befallen the baby under Solomon's initial judgment. The parties to the dispute are not free to compromise rights other than their own.

Arbitration Of International Contract Disputes, William W. Park

Faculty Scholarship

International commercial arbitration has been the victim of its own success. Arbitration is often the only dispute resolution process acceptable in business contexts where parties from different countries have rejected recourse to each other's legal system at the outset of the contractual relationship. For example, when a Swedish shipyard contracts to build tankers for an agency of the Libyan government, the Swedes are unlikely to relish the prospect of appearing before Libyan courts, and the Libyans may view submission to the courts of Sweden (or of another industrialized Western nation) as an affront to Libyan national sovereignty. Neither the Swedish …

The Binding Force Of International Arbitral Awards, William W. Park, Jan Paulsson

Faculty Scholarship

A party that submits a controversy to arbitration may later regret having abandoned recourse to the courts. Once the award is rendered, the chosen arbitrator may no longer seem so wise to the losing party, who may refuse to comply with his decision. A legal system must therefore legitimize the arbitrator's authority if the award is to be more than an unenforceable attempt at conciliation.

Predestination And Swiss Arbitration Law: Geneva's Application Of The International Concordat, Philippe Neyroud, William W. Park

Faculty Scholarship

Historically, Geneva has proved an attractive site for international commercial arbitration. Today, however, Geneva's arbitral popularity is threatened by the interventionist practices of Switzerland's cantonal courts, which have liberally interpreted their powers to review and overturn arbitral awards. In an effort to prevent a decline in Switzerland's popularity as an arbitral center, Swiss jurists have recently proposed rules providing for greater arbitral autonomy in the private resolution of international business disputes. The authors analyze Swiss judicial intervention in the arbitral process, the problems inherent in such intervention, and a proposed solution to those problems.