Law Commons^™

After Gardner-Denver, Gilmer And Wright: The Supreme Court’S Next Arbitration Decision, Susan A. Fitzgibbon

Saint Louis University Law Journal

No abstract provided.

Does The Battle Over Mandatory Arbitration Jeopardize The Eeoc’S War In Fighting Workplace Discrimination?, Julie L. Waters

Saint Louis University Law Journal

No abstract provided.

Developing Construction Claims For Arbitration: Two Arbitrators' Viewpoint, Douglas D. Gransberg, Charles A. Joplin

Douglas D. Gransberg

Two arbitrators' viewpoints of construction claims development are provided in the hope that the information will be useful to those needing to resolve construction claims by arbitration. It also may help to reduce the volume of costly and unnecessary documentation. Because of arbitration's relative formality, attorneys representing construction contractors and owners tend to prepare their cases in the same way as they would for litigation. This leads to potential information overkill, which threatens the arbitration panel's ability to easily sort through and understand the issues in its quest for a fair and equitable decision.

Negligent Retention And Arbitration: The Effect Of A Developing Tort On Traditional Labor Law, Terry A. Bethel

Journal of Dispute Resolution

As negligent retention theories continue to grow, courts will inevitably address these questions. This article will offer a brief introduction to the tort of negligent retention and related doctrines and will discuss how courts will accommodate them within traditional labor law principles. Despite my impulsive reaction that negligent retention poses a threat to arbitration, I conclude that, for the most part, negligent retention and labor arbitration can coexist peacefully.

Arbitration And Its Collateral Estoppel Effect On Third Parties - Vandenberg V. Superior Court, Thurston K. Cromwell

Journal of Dispute Resolution

This Note examines why California's supreme court chose not to allow judicially confirmed arbitration awards to apply to third parties. The court based its decision on the contract model of arbitration and determined that an agreement to arbitrate was not necessarily an agreement binding third parties. However, this decision undermines the credibility of the arbitration process and fails to consider the negative impact relitigation of issues will have on the California courts.

Recent Developments: The Uniform Arbitration Act, S. Owen Griffin, Kelli Hopkins, Scot L. Wiggins, Emily Woodward

Journal of Dispute Resolution

This Article is an overview of recent court decisions that interpret state versions of the Uniform Arbitration Act ("U.A.A.").' Arbitration statutes patterned after the U.A.A. have been adopted by thirty-four states and the District of Columbia. The goal of this project is to promote uniformity in the interpretation of the U.A.A. by articulating the underlying policies and rationales of recent court decisions interpreting the U.A.A?

Establishing A Securities Arbitration Clinic: The Experience At Pace, Barbara Black

Faculty Articles and Other Publications

In the fall of1997 Pace University School of Law established one of the first law school clinics to provide student assistance to small investors who have disputes with their broker-dealers. What follows is a brief account of the clinic's educational objectives, an analysis of the initial organizational issues, and a report on the clinic's operation during its first two years. I am writing this in the hope that it will provide guidance and assistance to other law schools that contemplate establishing a securities arbitration clinic.

This is a nuts-and-bolts article written from the perspective of an experienced law professor who …

Where On Earth Does Cyber-Arbitration Occur?: International Review Of Arbitral Awards Rendered Online, Tiffany J. Lanier Esq.

ILSA Journal of International & Comparative Law

As international commerce continues to increase in online volume, so to will disputes arising out of that online commerce.

A Critical Approach To The Kuwaiti Law Of Judicial Arbitration No. 11 Of 1995: With Reference To The Uncitral Model Law On International Commercial Arbitration, Mashael Alhajeri

Mashael Alhajeri

No abstract provided.

Adr, The Judiciary, & Justice: Coming To Terms With The Alternatives, Erin Ryan

Erin Ryan

[This student note is the closing chapter of the Harvard Law Review “Developments in the Law” issue for the year 2000, devoted to developments in civil litigation.] Any discussion of recent developments in civil litigation must address the virtual revolution that has taken place regarding alternative dispute resolution (ADR). Attorneys have witnessed a steady growth in their clients' recourse to ADR in place of lawsuits, and ADR is increasingly incorporated into the litigation process by the judiciary itself—in the form of court-annexed arbitration, mediation, summary jury trials, early neutral evaluation, and judicial settlement conferences. “Alternative” models of dispute resolution have …

Setting Arbitrators' Fees: An International Survey, John Y. Gotanda

Vanderbilt Journal of Transnational Law

This Article examines the compensation policies of international arbitrators. Specifically, the Article details the results of a survey of individuals who practice in the area of international arbitration.

Initially, the Article describes the different methods of calculating the fees of the arbitral tribunal, discussing the relative advantages and disadvantages of each method. The study concludes that most arbitrators calculate their fees using a time-based method, except when the arbitral institution requires that their fees be determined under the ad valorem method.

Next, the Article examines arbitrators' policies regarding cancellation and commitment fees. Survey results highlighted confusion about whether arbitrators were …

The Settlement Of Investment Disputes Between States And Private Parties - An Overview From The Perspective Of The Icc, Horacio A. Grigera Naón

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Adr, The Judiciary, And Justice: Coming To Terms With The Alternatives, Erin Ryan

Scholarly Publications

Any discussion of recent developments in civil litigation must address the virtual revolution that has taken place regarding alternative dispute resolution (ADR). Attorneys have witnessed a steady growth in their clients' recourse to ADR in place of lawsuits, and ADR is increasingly incorporated into the litigation process by the judiciary itself--in the form of court-annexed arbitration, mediation, summary jury trials, early neutral evaluation, and judicial settlement conferences. "Alternative" models of dispute resolution have inarguably penetrated the mainstream; the relevant question now is how they will change it. The judicial embrace of ADR presents opportunities and concerns that distinguish court-annexed programs …

Union-Negotiated Waivers Of An Employee's Federal Forum Rights To Statutory Claims: Are They An Effective Means To Exclusivity, Robert M. Smith

Missouri Law Review

Virtually every collective bargaining agreement provides for the use of labor arbitration in the event that the employer, and the union representing the employee, are unable to reach a mutually agreeable result.' However, even after Wright v. Universal Maritime Service Corp.,3 it remains unclear whether an agreement to arbitrate can require arbitration to be an individual employee's exclusive forum for federal statutory claims. This Note analyzes the United States Supreme Court holding in Wright, and also analyzes both the case law leading up to the Court's decision, and the existing split among the federal circuits as to whether union-negotiated waivers …

Arbitration: Arbitration In The 21st Century: Where We've Been, Where We're Going, Todd Baker

Oklahoma Law Review

No abstract provided.

Sexual Harassment In The Workplace: How Arbitrators Decide , Mollie H. Bowers, E. Patrick Mcdermott

Cleveland State Law Review

For thirty years courts and labor arbitrators have grappled with what constitutes sexual harassment and how to remedy such behavior. The Federal judiciary has developed case law on sexual harassment under Title VII of the Civil Rights Act of 1964. However, arbitrators addressing this issue under collective bargaining agreements have often treated similar fact patterns differently than jurists. In contrast, labor arbitrators decide culpability first, and then consider the appropriate remedy. In reconciling these separate paths for establishing standards of workplace conduct, the authors will provide a model that explains how arbitrators decide sexual harassment cases and how this model …

Mandatory Arbitration: Bane Or Boon?, Theodore St. Antoine

Other Publications

Buy a new car that turns out to be a lemon and you may find you can't sue. Fine print in the sales contract often restricts you to arbitration. That means presenting your case before a private person instead of a judge and jury. And the arbitrator may be someone drawn from a panel compiled by the car seller.

Negligent Retention And Arbitration: The Effect Of A Developing Tort On Traditional Labor Law, Terry A. Bethel

Articles by Maurer Faculty

No abstract provided.

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance Law in the years 1999 and 2000.

Fighting Arbitration Clauses In Franchisor Contracts, Jean R. Sternlight

Scholarly Works

Purporting to serve justice, efficiency, and freedom of contract, business interests are increasingly attempting to use binding arbitration clauses to secure unfair advantages over unknowing parties. Courts seemingly have been eager to enforce arbitration clauses that appear in franchise agreements. This article discusses courts’ enforcement of arbitration clauses, undermining protections to the franchisee, and how franchisees can create a more level playing field.

Is Binding Arbitration A Form Of Adr?: An Argument That The Term "Adr" Has Begun To Outlive Its Usefulness, Jean R. Sternlight

Scholarly Works

Professor Frank Sander has, for many years, been one of the most prescient commentators on the alternative dispute resolution ("ADR") movement. His 1976 Pound Conference speech has been identified by many as marking the birth of the modern ADR phenomena. That speech, which compared some of the pros and cons of litigation and an array of other dispute resolution processes, has been summarized as proposing the concept of the "multi-door courthouse." In contrast, Professor Sander's more recent and very interesting review of the present and future of ADR makes little attempt to distinguish between mediation and binding arbitration, the two …

Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stempel

Scholarly Works

Some people (lawyers, scholars, judges, dispute resolvers, policymakers) are more concerned about fidelity to procedural protocols while others are more concerned with the substantive rules governing disputes and substantive outcomes. Those in the dispute resolution community preferring facilitation tend to be proceduralists. For them, the observance of proper procedure is a high goal, perhaps the dominant goal. They reason, often implicitly, that adherence to the rules of procedure is the essence of neutrality, fairness, and the proper role of a dispute resolving apparatus. At some level, usually subconscious, there is a post-modern philosophical aspect of this preference. Because humans cannot …

The Inevitability Of The Eclectic: Liberating Adr From Ideology, Jeffrey W. Stempel

Scholarly Works

The problem with viewing facilitation as the only legitimate form of mediation, of course, is that it borders on tautology: mediation is nonevaluative, therefore any evaluation in mediation must be impermissible. Although this view remains strongly held in many quarters, it appears to be in retreat, both within the mediation community and in the legal community at large. Courts and commentators have shown increasing favor toward some evaluative or advising component of mediation. More important, the eclectic style appears to be what takes place in the metaphorical trenches of mediation practice (although sound empirical data is necessarily hard to obtain …

As Mandatory Binding Arbitration Meets The Class Action, Will The Class Action Survive?, Jean R. Sternlight

Scholarly Works

Assuming that the traditional prerequisites for a class action have been met, courts have four choices: (1) order the dispute to be resolved in an individualized arbitration, thereby denying plaintiffs either a litigation or arbitration venue for their class claims; (2) refuse to mandate arbitration, and instead allow plaintiffs to litigate their class claims; (3) order that the dispute be resolved through an arbitral class action, also known as classwide arbitration; or (4) order the dispute to arbitration but allow the arbitrators to make the determination as to whether the dispute should be resolved individually or on a class basis. …

Arbitration And Judicial Review, Theodore J. St. Antoine

Other Publications

A quarter century ago, in a presentation at the Academy's annual meeting, I used the phrase "contract reader" to characterize the role an arbitrator plays in construing a collective bargaining agreement. That two-word phrase may be the only thing I ever said before this body that has been remembered. Unfortunately, it is almost invariably misunderstood. Time and again members have reproached me: "What's the big deal about contract reading, anyway? Isn't it just the same as contract interpretation?" Or, more substantively scathing: "Do you really think, Ted, that all you have to do to interpret a labor agreement is to …

Mothers And Fathers Of Invention: The Intellectual Founders Of Adr, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

When we think of the "founding" of the ADR movement (particularly, but not exclusively, in law), from when do we date it? Whom do we think of as our leaders? Many of us think of Frank Sander and the "multi-door courthouse" suggested by his famous paper, delivered at the Pound Conference on the Causes of Popular Dissatisfaction with the Administration of Justice in 1976. For others, the publication of Roger Fisher and William Ury's "Getting to Yes," signaled an interest in a changed paradigm for engaging in legal negotiations. Some may associate ADR's nascency with early practical efforts to institutionalize …

Arbitration And Assimilation, Stephen Ware

Stephen Ware

Arbitration is not necessarily antithetical to the assimilation of different groups. While intra-group arbitration allows for various groups to separate into their own cocoons, general arbitration can be the handmaiden of assimilation. Both types of arbitration deserve to flourish.