Law Commons^™

The Obvious Violation Exception To Qualified Immunity: An Empirical Study, Bailey D. Barnes

Faculty Publications

Qualified immunity shields government officials from civil suits for discretionary actions, as long as the violated right is not clearly established. A right is deemed established when every reasonable official would understand it based on precedent, placing it beyond debate, such that only the plainly incompetent may be held liable. Consequently, even when an act infringes on one's civil rights, a court may deny relief owing to a lack of factually comparable precedent. However, in 2020, the Supreme Court indicated its distrust for overreliance on precedent in certain contexts. In Taylor v. Riojas, the Court held that prison officials violated …

Intimate Partner Violence: Access To Protection Beyond The Pandemic, Rachel J. Wechsler

Faculty Publications

Civil protection orders are the most common legal remedy victims pursue in response to intimate partner violence (IPV). They are more empowering for victims than the criminal legal system because victims themselves drive the process, instead of prosecutors, and they offer more flexible and tailored relief. This Article argues that victims should be able to choose how they file petitions and participate in civil protection order hearings, and that judges should be required to honor those preferences absent good cause. This conclusion is driven by two new, original sets of empirical data collected from IPV survivors who have sought civil …

Law Schools Should Substantially Increase Instruction In Mediation Representation, John Lande

Faculty Publications

American law schools generally focus 10% or less of their mediation curriculum on mediation representation. As shown in a survey of faculty teaching mediation and an analysis of course syllabi in this article, most of the instruction focuses on the role of a mediator.

This is a problem for several reasons. New graduates represent clients in mediation much more frequently than they mediate. Clients usually need professional advice to evaluate their cases and develop strategies, which mediators cannot provide. This is precisely the important service that attorneys can provide, but we teach students very little about what to do when …

Toward A Better Understanding Of Mail Balloting: The Case Of U.S. Labor Union-Representation Elections, Rafael Gely, Leonard Bierman, Timothy Chandler

Faculty Publications

The issue of how people vote in elections is important and timely. This Article examines this issue from the perspective of whether people vote by mail - i.e., mail balloting - or in person on a designated election day i.e., in-person voting. It explores the pros and cons of mail balloting versus in-person voting from a general political perspective and in the context of elections for labor union representation in the United States. It presents heretofore unreported data on the use of mail balloting in union-representation elections. It then draws lessons from these data concerning how mail balloting-which has increased …

Table Of Contents

The Business, Entrepreneurship & Tax Law Review

No abstract provided.

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The Business, Entrepreneurship & Tax Law Review

No abstract provided.

“Hey Girlie, Want To Sell Your Soul?” How The U.S. Can Counteract Predatory Cult Activities Through The Lens Of Fraudulent Business Schemes, Georgia Bronson

The Business, Entrepreneurship & Tax Law Review

This paper investigates the parallels between predatory New Religious Movements (NRMs) and fraudulent business schemes such as pyramid and Ponzi schemes. By examining their recruitment tactics, psychological manipulation, and exploitation of economic vulnerabilities, this paper reveals how these organizations target socially and economically unstable populations for financial gain. The study proposes two strategic interventions: first, using the Social Vulnerability Index to develop proactive government responses, including targeted public service announcements and law enforcement education; and second, creating an IRS database requiring detailed financial reporting from tax-exempt organizations. The goal is to address systemic vulnerabilities through data-driven policy, increased transparency, and …

What’S The “Gig” Idea?: The Importance Of Understanding Who Employees Are Under The Flsa, Gracie Williams Clevenger

The Business, Entrepreneurship & Tax Law Review

The United States Department of Labor (“the Department”) is modifying Wage and Hour Division regulations to replace its analysis for determining employee or independent contractor classification under the Fair Labor Standards Act. This paper delves into the dynamic landscape of workers' rights, tracing the historical development of labor regulations and the intricate classifications of employees and individual contractors. The paper navigates key milestones in the evolution of workers' rights, from the early labor movements to the present-day legal frameworks. By examining landmark legislation, judicial decisions, and societal shifts, the paper illuminates what has shaped the rights and protections afforded to …

Unraveling The Puzzle Of High Drug Prices In The United States: A Systemic Analysis And Policy Implications Of March-In Rights, Mariana Larson

The Business, Entrepreneurship & Tax Law Review

The United States, often perceived as a global beacon of power and prosperity, grapples with a paradoxical reality concerning its healthcare system and drug prices. Despite its stature, the nation’s healthcare landscape is marred by exorbitant pharmaceutical costs, raising concerns among policymakers and families alike. This paper delves into the complex web of factors contributing to the abundance of high drug prices in the United States, shedding light on the role of pharmaceutical companies and the dynamics of patent protection, and analysis the newly released March-in Rights framework created by the Biden-Harris Administration. But is the framework enough to truly …

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The Business, Entrepreneurship & Tax Law Review

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Mattress Money: How Civil Forfeiture Leaves Taxpayers With Few Options, Aubrey Manculich

The Business, Entrepreneurship & Tax Law Review

Civil forfeiture is a legal practice that allows law enforcement agencies to seize property without a criminal conviction, or even charges. This article examines the tax consequences of civil asset forfeiture, particularly the near-impossibility of individuals or businesses to claim a deduction for forfeited property. By analyzing the treatment of seized and forfeited property by the Internal Revenue Code and related I.R.S. regulations and publications, this study exposes critical gaps in the current system that prevent taxpayers from recognizing losses from civil forfeiture. The article further explores the interaction of tax law and civil forfeiture proceedings, demonstrating how innocent property …

Merchants In Shakespeare’S The Merchant Of Venice: A Transactional Analysis, Raj Bhala

The Business, Entrepreneurship & Tax Law Review

Shakespeare’s The Merchant of Venice is a play with multiple merchants engaged in multiple transactions with multiple motives. The key characters – Shylock, Antonio, Bassanio, Portia, Jessica, Lorenzo, Nerissa, Graziano, and the Duke – are involved in one sort of business dealing or another. Indeed, there are 10 specific transactions: one finance transaction; one international trade transaction; one gastronomic transaction; two inheritance transactions; three marriage transactions; and two legal entrepreneurship transactions. In these deals, commerce and love are almost indistinguishable, and justice and mercy clash. Thus, lawyers can analyze the drama from a transactional perspective, and spot issues they encounter, …

Virtual Reality: Communication Channels, Trust, And Board Oversight, Nicola Faith Sharpe

The Business, Entrepreneurship & Tax Law Review

Post-pandemic, corporate directors, executives, and other employees are frequently found working from home as part of the modern global remote workforce. Since 2020’s pandemic necessitated mass exodus from the in-person workplace, working remotely has become the default for many. Quite the opposite of a transient phenomenon or a global pandemic stopgap measure, remote work is here to stay. It has changed more than the location of where business is conducted. It shifted the primary professional communication medium from face to face communications to virtual, computer mediated communications.

Insurance Law And Religious Belief, Chad Marzen

The Business, Entrepreneurship & Tax Law Review

This Article adds to the corpus of academic scholarship in insurance law with an analysis of jurisprudence involving insurance law and religious belief. Outside of the issue of contraception, health insurance and religious exemptions, there are a number of areas where insurance law intersects with religious belief. These areas, examined in this Article, include the admissibility of testimony regarding religious beliefs in liability cases, unemployment compensation and religious belief, the relationship between worker's compensation and religious belief, and whether motor vehicle financial responsibility laws violate the First Amendment.

Theory And Practice Of Mediation Representation, John Lande

Faculty Publications

These days, American attorneys regularly represent clients in mediation. This representation is a complex process, and attorneys and law students need guidance about how to serve clients well in this context. This article offers a theoretical framework for analyzing mediation representation based on Real Practice System Theory. It reviews books that outline elements of mediation representation and identify practical techniques that attorneys can use when representing clients in mediation. It supplies several suggestions for faculty who teach mediation, including teaching courses combining the perspectives of both mediators and mediation representatives.

Real Practice Systems Project Menu Of Checklists For Attorneys In Mediation, John Lande

Faculty Publications

This is a detailed menu of checklists for attorneys representing clients in mediation, including actions before, during, and after mediation sessions. The checklists include items about information to provide on websites, compliance with ethical requirements, and reflection and improvement of techniques. They are intended to prompt attorneys to become more conscious and intentional in their work, helping them to develop routines and strategies for dealing with recurring problems.

The checklists are extensive but not exhaustive. They are not recipes to follow strictly, thoughtlessly, or completely. Instead, they should help attorneys decide what to do in any specific case or in …

Adr In The Ongoing Experiment Of American Law, Carli N. Conklin

Faculty Publications

To engage in the development of American law— past or present—is to engage in a great and ongoing experiment. It is an exercise of the imagination. And one place where American law has been most imaginative is in the field of alternative dispute resolution. It is an area of law that, in its creativity and emphasis on the person as a whole, is particularly well-suited to respond to the guiding question of our constitutional democracy: how might we live well together?

The Important Role Of Attorneys In Promoting Parties' Self-Determination In Mediation, John Lande

Faculty Publications

This short article analyzes the meaning of self-determination, and it demonstrates that attorneys generally have much greater ability than mediators to promote parties’ self-determination. I argue that “self-determination” is an admirable but unattainable ideal.

Instead, attorneys and mediators should focus on promoting parties’ best possible decision-making under the circumstances. To optimally promote the quality of parties’ decision-making during mediation sessions, they must be well-prepared before mediation sessions. At that stage, attorneys are in the best position to counsel clients, when they have more time to carefully consider their situation and they are not under pressure to respond to the …

The Case For Mediation Representation Clinics And Externships, John Lande

Faculty Publications

This article recommends that law schools offer mediation representation clinics and externship courses to assist self-represented litigants in cases with legally-represented parties. These courses would prepare law students to practice in the modern world. Students would get experience working with real clients, conduct interviews, help clients assess their goals and interests, analyze claims, perform legal research, prepare documents, coordinate with mediators, and negotiate with counterpart attorneys.

The courses would address the needs of multiple stakeholders including self-represented litigants, law students, law schools, courts, attorneys, mediators, and society in general. Law schools would develop these courses in collaboration with many potential …

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Journal of Dispute Resolution

No abstract provided.

Filling The Enforcement Gap: Alternative Dispute Resolution As An Approach To Solving "Copyright" Disputes For Ai-Generated Content, Aly Rezek

Journal of Dispute Resolution

On August 12, 2019, the United States Copyright Office (“the Copyright Office”) sent Stephen Thaler a rejection letter stating it would not issue him federal copyright protection for artwork generated by a computer program he owned. After countless appeals to the Copyright Office and the Federal District Court under various legal theories, one thing was made clear: The U.S. Copyright system would not protect works created by non-human authors. This principle presents a problem. Artificial intelligence (“AI”) is a rapidly developing tool in business and a rapidly developing issue in the law. Courts have routinely held that to be copyrightable, …

The Case For Strategic Case Evaluation And Management Courses, John Lande

Faculty Publications

This short article argues that law schools should substantially increase instruction in pretrial litigation, teaching students how to strategically evaluate and manage cases. Law school graduates generally are unprepared to work with clients, have difficulty communicating with clients, and don’t understand the “big picture” of client matters. They generally aren’t well trained in negotiation, which is essential in modern legal practice. The problem for law students and law schools is exacerbated by the transition to the NextGen bar exam and a movement in various states to use alternative mechanisms for licensing that would require demonstration of practical skills.

To address …

It's Time To Make Important Upgrades To Our Mediation Curriculum, John Lande

Faculty Publications

In the past five decades, mediation practice and teaching have grown in size and sophistication. Inevitably, some ideas that made sense early in this development need revision and updating to reflect evolving realities and improved understandings. This is a moment deserving reflection about what faculty should teach about mediation, especially in light of the NextGen bar exam and changes in various states’ licensing regimes.

This article suggests various upgrades of our mediation instruction. Change is hard but can be worth the effort. The article includes numerous specific suggestions and links to handy resources that faculty can incorporate in their courses …

Oxymorons R Us, John Lande

Faculty Publications

This short article riffs on comments at a program at the ABA Section of Dispute Resolution’s annual conference to illustrate how oxymoronic the terms “facilitative,” “evaluative,” and “empowerment” have become. It suggests ways that dispute resolution academics and practitioners can avoid speaking oxymoron.

Modern Mediation Practice In American Legal Cases, John Lande

Faculty Publications

This article provides excerpts of It's Time to Make Important Upgrades to Our Mediation Curriculum. It notes significant changes in mediation practice in the past five decades and highlights the nature of modern mediation practice in American legal cases. It suggests that law school faculty upgrade of our mediation instruction to reflect the realities of modern practice.

Mandatory Mediation In England And Wales: A Paradigm Shift In Dispute Resolution, Mckayla Bogda

Journal of Dispute Resolution

In May of 2023, Tribunals in England and Wales had a backlog of nearly 144,000 cases. In a press release issued on July 25, 2023, the Ministry of Justice (MoJ) unveiled a significant policy change to combat this backlog. Under its new directive, individuals or entities wishing to pursue debt recovery claims of £10,000 or less are required to engage in mediation proceedings prior to their case’s adjudication in the small claims courts of England and Wales. This transformative shift signifies a departure from the traditional adversarial litigation model of both of these countries’ judicial systems.

Faculty List

Journal of Dispute Resolution

No abstract provided.

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Journal of Dispute Resolution

No abstract provided.

Masthead

Journal of Dispute Resolution

No abstract provided.

Alternative Dispute Resolution In Agency Administrative Programs, Kristen Blankley, Kathleen Claussen, Judith Starr

Journal of Dispute Resolution

This Article studies how federal agencies use and might better use different types of alternative dispute resolution (ADR)—including mediation, conciliation, facilitation, factfinding, minitrials, arbitration, and the use of ombuds—in the programs Congress has entrusted them to administer. The use of ADR by the executive branch of the federal government to resolve disputes with or among private actors has deep historical roots. ADR related to managerial agency matters such as employment or procurement is well-established across the government and performed under a uniform set of laws. Much less has been known, however, about the scope and reach of ADR in the …