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Articles 61 - 88 of 88
Full-Text Articles in Law
Choice Of Law In Trusts: Uniform Trust Code, Sections 107 And 403, Eugene F. Scoles
Choice Of Law In Trusts: Uniform Trust Code, Sections 107 And 403, Eugene F. Scoles
Missouri Law Review
No abstract provided.
Finding Out If It Is True: Comparing Mediation And Negotiation Through Research, Craig A. Mcewen, Roselle L. Wissler
Finding Out If It Is True: Comparing Mediation And Negotiation Through Research, Craig A. Mcewen, Roselle L. Wissler
Journal of Dispute Resolution
In this article, we first use existing research evidence to contextualize more clearly the place of civil case mediation in the litigation process. When we understand civil mediation as part of adversarial litigation - rather than as distinct from it - we see the importance of comparing mediation and unassisted negotiation. Next, we discuss research and commentary on the barriers to negotiation and the ways in which mediation might help overcome them. This work provides a more pragmatic and empirically grounded perspective on the potential value of mediation than does "mediation ideology" and suggests a wide range of "hypotheses" to …
Procedural Justice Research And The Paucity Of Trials, Chris Guthrie
Procedural Justice Research And The Paucity Of Trials, Chris Guthrie
Journal of Dispute Resolution
Likewise, I do not mean to criticize Hensler's contribution to this volume. Although she is a prominent procedural justice researcher herself, she is certainly not responsible for the inattention given to the questions I have identified, and her measured conclusions about what might be inferred from the existing research are certainly appropriate. Indeed, I take Hensler' s broader point to be that courts should not mandate mediation simply because they believe as a matter of faith that mediation is a "better" process than others." Rather, courts should base their decisions, to the extent possible, on empirical evidence about the relative …
Mediating Preferences: Litigant Preferences For Process And Judicial Preferences For Settlement, Judith Resnik
Mediating Preferences: Litigant Preferences For Process And Judicial Preferences For Settlement, Judith Resnik
Journal of Dispute Resolution
In the 1980s, as a consultant to RAND's Institute for Civil Justice, I joined Deborah Hensler, Allan Lind, Robert MacCoun, William Felstiner, Tom Tyler, and Patricia Ebener in seeking to learn how litigants viewed their experiences with courtbased processes. We surveyed litigants whose cases had been resolved through trials, court-annexed arbitrations, judge-run settlement conferences, and bi-lateral negotiations between lawyers.' We found that litigants cared about process: they reported less satisfaction with processes in which they took no part and more satisfaction with processes in which they could participate. Contrary to some lore that litigants were alienated by trial-like procedures, the …
Emperor's New Clothes: Mediation Mythology And Markets, The, Susan S. Silbey
Emperor's New Clothes: Mediation Mythology And Markets, The, Susan S. Silbey
Journal of Dispute Resolution
The Emperor's New Clothes is a very modem tale about carving out market niches, about generating and feeding unreasonable desires, and about the power of conformity within emergent occupations and powerful professions.
Disputants' Decision Control In Court-Connected Mediation: A Hollow Promise Without Procedural Justice, Nancy A. Welsh
Disputants' Decision Control In Court-Connected Mediation: A Hollow Promise Without Procedural Justice, Nancy A. Welsh
Journal of Dispute Resolution
Such a uniform commitment to procedural justice might seem natural for the courts. However, the procedural due process jurisprudence indicates that the courts' appreciation of procedural justice is unlikely to translate easily to processes in which the disputants, not the courts, are deemed to exercise control over outcomes. Given the current state of procedural due process jurisprudence, courts may lack both the desire and the ability to demand procedural justice in third party processes that are classified as "consensual." Ironically then, disputants' decision control, which is meaningful to mediation advocates and the courts but a rather hollow promise for disputants, …
Arbitration Agreements In Labor And Employment Contracts: Well Within The Reach Of The Faa - Circuit City Stores, Inc. V. Adams, Lisa M. Eaton
Arbitration Agreements In Labor And Employment Contracts: Well Within The Reach Of The Faa - Circuit City Stores, Inc. V. Adams, Lisa M. Eaton
Journal of Dispute Resolution
Despite a series of decisions where the Supreme Court has upheld the use of arbitration in the employment context, the Court has never clearly stated that arbitration agreements contained in employment contracts fall under the Federal Arbitration Act (FAA). This omission has led to a split in the Circuits as to the scope of the FAA coverage ad exemption provisions. The controversy centers on whether the FAA covers all employment contracts except those of employees who transport people or goods in interstate commerce or whether the FAA exempts all employment contracts.
Suppose It's Not True: Challenging Mediation Ideology, Deborah R. Hensler
Suppose It's Not True: Challenging Mediation Ideology, Deborah R. Hensler
Journal of Dispute Resolution
Across the country, people who file lawsuits are being diverted from adjudication to mediation. Whereas once mediation was seen as the preferred means of resolving family disputes (especially those involving child custody), now it is mandated for a broad range of civil disputes. Whereas once citizens were called upon to volunteer as mediators in community justice centers outside the courts, now mediation is a line of business for lawyers whose customers are sent to them by the courts. Whereas once dispute resolution theorists called on courts to provide a variety of procedural choices for civil disputants, now courts order litigants …
Lawyer-Negotiator As Mood Scientist: What We Know And Don't Know About How Mood Relates To Successful Negotiation, The, Clark Freshman, Adele Hayes, Greg Feldman
Lawyer-Negotiator As Mood Scientist: What We Know And Don't Know About How Mood Relates To Successful Negotiation, The, Clark Freshman, Adele Hayes, Greg Feldman
Journal of Dispute Resolution
This article explores two related questions: First, does mood7 shape how well lawyers succeed at negotiation?" Second, can lawyers succeed better at negotiation by understanding and managing the role of mood? We begin by exploring what scientific evidence we currently have about how mild changes in mood are associated with significant differences in success at negotiation. Ultimately, we argue that existing scientific evidence shows mood plays a far more complicated role than negotiators and negotiation scholars usually imagine, but that further research needs to address more carefully exactly how mood works and how it affects lawyers and legal negotiation. We …
Why Suppose - Let's Find Out: A Public Policy Research Program On Dispute Resolution, Lisa B. Bingham
Why Suppose - Let's Find Out: A Public Policy Research Program On Dispute Resolution, Lisa B. Bingham
Journal of Dispute Resolution
In this commentary, I suggest that we can get a broader picture of the research agenda to address these policy issues by refining our notions of self-determination. In addition to self-determination over process and outcome in the individual case, we need to start examining who has control over design of the dispute system as a whole. First, this commentary addresses the difference between self-determination at the case level and self-determination in dispute system design and how these two separate dimensions of self-determination can help us distinguish among different uses of mediation and arbitration. Second, using this framework, I attempt to …
Mediation As One Step In Adversarial Litigation: One Country Lawyer's Experience, John R. Phillips
Mediation As One Step In Adversarial Litigation: One Country Lawyer's Experience, John R. Phillips
Journal of Dispute Resolution
This experience stands in stark contrast to the thesis of Professor Deborah Hensler in her article, Suppose It's Not True: Challenging Mediation Ideology. Therein, Professor Hensler attempts to link social psychological research that she interprets as showing dissatisfaction with the use of mediation compared to adjudication, which, in turn, leads her to conclude that clients should prefer counsel who ordinarily can resolve cases successfully without the help of mediation.7 The fallacy of Professor Hensler's argument is evident in several respects. For one, she relies far too heavily on her own intuition and previous empirical research of marginal relevance, and on …
Ability Of Native American Tribes To Waive Their Tribal Sovereign Immunity In Clear And Unequivocal Contracts To Arbitrate - C&(And)L Enterprises, Inc. V. Citizen Band Potawatomie Tribe Of Oklahoma, The, Emily J. Huitsing
Journal of Dispute Resolution
Native American tribes enjoy immunity from suits on contracts made on or off a reservation.2 A tribe is subject to suit only if it has clearly waived its immunity or Congress has expressly authorized the suit.' Tribal immunity was given to the tribes on the principle that tribes are sovereigns or quasi sovereigns enjoying immunity from judicial attack absent their consent.4 The purpose of tribal sovereignty, according to the Supreme Court, is to promote tribal economic development and self-sufficiency.5 Though the Court has expressed its dissatisfaction with the doctrine in light of increased tribal economic self-sufficiency through successful business ventures, …
No Out For The Federal Government: Enforcing Contractual Arbitration Clauses In Federal Government False Claims Actions - U. S. V. Bankers Ins. Co., Sarah A. Wight
Journal of Dispute Resolution
As a party to one-fourth of all civil litigation2 the federal government exerts a looming presence in American judicial proceedings. Thus, attempts by the government to elude obligations under arbitration agreements, if successful, would significantly impact the elite status that pre-dispute contractual arbitration clauses currently hold.' This casenote examines how the United States Court of Appeals for the Fourth Circuit recently addressed this issue in the context of a false claims action.
Dear President Bush, Carl Tobias
Dear President Bush, Carl Tobias
Missouri Law Review
Written immediately after the 2000 election, this Article outlines the president's contemporary responsibility in shaping the judiciary through judicial appointment.
Special Masters In Bankruptcy: The Case Against Bankruptcy Rule 9031, Paulette J. Delk
Special Masters In Bankruptcy: The Case Against Bankruptcy Rule 9031, Paulette J. Delk
Missouri Law Review
In this Article, the Author attempts to demonstrate that bankruptcy courts regularly hear cases in which the court and the parties could benefit from the services of a special master and that bankruptcy courts are hampered in their ability to handle cases in the most just and efficient manner possible because of their inability to appoint special master. Part II of this Article examines the role of the special master in the federal courts generally. It examines the scope of tasks traditionally performed by special masters, as well as the expanded role that special masters have played in recent years …
Burning Down The House: Does Limiting The Innocent Spouse's Right To Recovery Make Sense, Ronald S. Ribaudo
Burning Down The House: Does Limiting The Innocent Spouse's Right To Recovery Make Sense, Ronald S. Ribaudo
Missouri Law Review
Homeowners purchase property insurance to protect themselves from fortuitous yet foreseeable risks, such as lightning strikes, poor electrical wiring, and perhaps, even arson by a stranger. One risk not anticipated is that one’s spouse would intentionally damage or destroy the family home. When this happens, is there coverage? This Note argues that the Missouri Court of Appeals for the Western District of Missouri’s decision in DePalma v. Bates County Mutual Insurance Co. establishes a per se rule of recovery that is flawed in two respects. First, it is inconsistent with the court’s claim that the policy language controlled the court’s …
In Search Of A Broader Stream Of Commerce Theory: The Eighth Circuit Streams Past Inconsistencies In Favor Of Equitable Results, Richard M. Elias
In Search Of A Broader Stream Of Commerce Theory: The Eighth Circuit Streams Past Inconsistencies In Favor Of Equitable Results, Richard M. Elias
Missouri Law Review
This Note discusses the evolution of the stream of commerce theory. First, it discusses the origin of the theory and the early split amongst state courts. Next, it discusses the modern Supreme Court jurisprudence on the issue, including the plurality decision on Asahi Metal Industry Co. v. Superior Court of California. Finally, this not discusses the evolution of the theory in the Eighth Circuit and argues that, while the case law is inconsistent, the results are equitable.
Suspending The Pardon Power During The Twilight Of A Presidential Term, Gregory C. Sisk
Suspending The Pardon Power During The Twilight Of A Presidential Term, Gregory C. Sisk
Missouri Law Review
In January 2001, the singular executive power to grant official absolution was back in the public spotlight and on the scholarly roundtable with President Bill Clinton's last-minute pardons of or commutations granted to nearly two hundred people, several of which are difficult or impossible to justify.
Come One, Come All But Watch Your Back - Missouri Sides With Business Owners In Negligent Security Action, Matthew J. Landwehr
Come One, Come All But Watch Your Back - Missouri Sides With Business Owners In Negligent Security Action, Matthew J. Landwehr
Missouri Law Review
In terms of sheer volume, premises-liability cases form one of the largest subcategories within the broad spectrum of tort law. Courts are dealing with this influx of lawsuits in a variety of ways. Some courts act as gatekeepers, devising rigid tests to ensure only the most deserving cases get to a jury. Other courts are more lenient, adopting flexible tests that allow more cases to reach juries. Which approach is better is the subject of much debate. This Note will discuss Missouri’s law governing negligent security actions, its application in Hudson v. Riverport Performance Arts Centre, its policy ramifications, and …
Does The Missouri Safe Schools Act Past The Test - Expelling Disruptive Students To Keep Missouri's Schools Safe, Cathi M. Kraetzer
Does The Missouri Safe Schools Act Past The Test - Expelling Disruptive Students To Keep Missouri's Schools Safe, Cathi M. Kraetzer
Missouri Law Review
The Missouri Court of Appeals for Easter District of Missouri interpreted the Missouri Safe Schools Act of 1996 in Hamrick ex rel. Hamrick v. Affton School District Board of Education to require a public school to admit for enrollment a student who had been expelled from a non-public school. Shortly after the court’s decision, the Missouri General Assembly amended the dispositive language of Section 167.171.4. It is not clear that public school districts in Missouri can deny enrollment to students suspended or expelled from both public and non-public schools. This Law Summary discusses whether the statutory change furthers the goas …