Law Commons^™

Toward Procedural Optionality: Private Ordering Of Public Adjudication, Robert J. Rhee

Robert Rhee

Private resolution and public adjudication of disputes are commonly seen as discrete, antipodal processes. There is a generally held understanding of the dispute resolution processes. The essence of private dispute resolution is that the parties can arrange the disputed rights and entitlements per agreement and without judicial intervention. In public adjudication, however, the sovereign mandates the substantive and procedural laws to be applied, many of which cannot be changed by either a party’s unilateral decision or both parties’ mutual consent. Neither approach allows a party an option to unilaterally alter important aspects of the process, such as the standards of …

The Death Of The American Trial, Robert Burns

Robert P. Burns

This book analyzes and criticizes the loss of one of the great achievements of our public culture, the American trial.

Arbitration And Choice: Taking Charge Of The 'New Litigation', Thomas J. Stipanowich

Thomas J. Stipanowich

Despite meaningful efforts to promote better practices and ensure quality among arbitrators and advocates, criticism of American arbitration is at a crescendo. Much of this criticism stems from the fact that arbitration under standard procedures has taken on the trappings of litigation - extensive discovery and motion practice, highly contentious advocacy, long cycle time and high cost. Paradoxically, concerns about the absence of appeal on the merits in arbitration have caused some to craft provisions calling for judicial review for errors of law or fact in awards. It is time to return to fundamentals in American arbitration. Those who seek …

Why Barring Settlement Bars Legitimate Suits: A Reply To Rosenberg And Shavell, Ted M. Sichelman

Ted M. Sichelman

Professors David Rosenberg and Steven Shavell recently proposed granting defendants an "option to bar settlement" to discourage frivolous suits filed for a mere "nuisance-value" settlement. By exercising this option, a defendant could prevent judicial enforcement of any ensuing settlement agreement between the parties. Rosenberg and Shavell contend that if courts were to foreclose settlement, a plaintiff would drop its nuisance-value suit, because its costs of litigating to judgment would exceed its expected benefits. They conclude that because defendants would only exercise the option if faced with a nuisance-value suit, adopting it would be socially beneficial. Although an option to bar …

The Dilemma Of The Vengeful Client: A Prescriptive Framework For Cooling The Flames Of Anger, Robin Slocum

Robin Slocum

Lawyers are presented with a challenging dilemma when counseling angry clients who seek to use the legal system as a weapon for vengeance. Legal scholars have argued that lawyers should, where appropriate, dissuade their angry clients from litigation strategies that are immoral or arguably unethical. However, angry clients are remarkably resistant to appeals based on morality and reason. Thus, it is not surprising that lawyers have been largely ineffective in their efforts to dissuade angry clients from using the legal system as a battlefield. Instead, lawyers often reluctantly defer to clients whose judgment is impaired by their emotional reactivity.

This …