Law Commons^™

Celebrity In Cyberspace: A Personality Rights Paradigm For Personal Domain Name Disputes, Jacqueline D. Lipton

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When the Oscar-winning actress, Julia Roberts, fought for control of the domain name, what was her aim? Did she want to reap economic benefits from the name? Probably not, as she has not used the name since it was transferred to her. Or did she want to prevent others from using it on either an unjust enrichment or a privacy basis? Was she, in fact, protecting a trademark interest in her name? Personal domain name disputes, particularly those in the space, implicate unique aspects of an individual's persona in cyberspace. Nevertheless, most of the legal rules developed for these disputes …

Mandatory Arbitration: Why It's Better Than It Looks, Theodore J. St. Antoine

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"Mandatory arbitration" as used here means that employees must agree as a condition of employment to arbitrate all legal disputes with their employer, including statutory claims, rather than take them to court. The Supreme Court has upheld the validity of such agreements on the grounds that they merely provide for a change of forum and not a loss of substantive rights. Opponents contend this wrongfully deprives employees of the right to a jury trial and other statutory procedural benefits. Various empirical studies indicate, however, that employees similarly situated do about as well in arbitration as in court actions, or even …

A Tribute To Louis Sohn - Is The Dispute Settlement System Under The Law Of The Sea Convention Working?, Bernard H. Oxman

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No abstract provided.

Parallel Courts In Post-Conflict Kosovo, Elena Baylis

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Even as American attention is focused on Iraq's struggle to rebuild its political and legal systems in the face of violent sectarian divisions, another fractured society - Kosovo - has begun negotiations to resolve the question of its political independence. Kosovo's efforts to establish multi-ethnic rule of law in the context of persistent ethnic divisions offer lessons in transitional justice and in managing legal pluralism for Iraq and other states.

In Kosovo today, two parallel judicial systems each claim sole jurisdiction over the province. One system was established by the United Nations administration in Kosovo, while the other system is …

The Curious Complications With Back-End Opt-Out Rights, Rhonda Wasserman

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Class action litigation seeks to mediate pressing conflicts between individual autonomy and collective justice; federal supervision and local control; self-interested class counsel and the represented class. These conflicts are exacerbated when a federal court that approves a class action settlement later seeks to enjoin state court litigants from violating its terms. Yet the demand for such injunctions has increased in light of the advent of back-end opt-out rights. In recent years, class members have been afforded back-end, or delayed, opportunities to opt out of a class action once the terms of the settlement are disclosed. These back-end opt-out rights may …

Teaching Adr In The Labor Field In China, Theodore J. St. Antoine

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My first visit to China, in 1994, was purely as a tourist, and came about almost by accident. In late September of that year I attended the XIV World Congress of the International Society for Labor Law and Social Security in Seoul, South Korea. In the second week of October I was scheduled to begin teaching a one-term course in American law as a visiting professor at Cambridge University in England. Despite my hazy notions of geography, I realized it made no sense to return to the United States for the intervening week. The obvious solution was to continue flying …

Solving The Digital Piracy Puzzle: Disaggregating Fair Use From The Dmca's Anti-Device Provisions, Jacqueline D. Lipton

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Copyright law has always involved balancing creative pursuits against innovations in copying, distribution and, more recently, encryption technologies. A significant problem for copyright law is that many such technologies can be utilized for both socially useful and socially harmful purposes. It is difficult to regulate such technologies in a way that prevents social harms while at the same time facilitating social benefits. The most recent example of this dynamic is evident in the 2005 United States Supreme Court decision in MGM v Grokster - dealing with digital file-sharing technologies. This article draws from the file sharing debate in considering another …

European Union's New Role In International Private Litigation, Ronald A. Brand

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No abstract provided.

The Pervasiveness Of Culture In Conflict, Pat K. Chew

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Law faculty and scholars are increasingly cognizant of the role of culture in dispute resolution. This essay offers a beginning roadmap for exploring the cultural context of conflict. It begins by considering how to assess our own cultural profiles, highlighting some useful social science constructs for this purpose. It then discusses how our interactive perception of others' cultural profiles makes a difference. The essay also explores the tensions between, on one hand, the pervasiveness of culture in conflict and, on the other hand, American legal traditions that appear contrary to the incorporation of culture into dispute resolution processes.

University Of Idaho College Of Law's 8th Annual Northwest Institute For Dispute Resolution, May 17-21, 2004, Maureen Laflin

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Case-Management Criminal Mediation Offers Promise But Requires Caution, Maureen Laflin

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Beyond Rights: Legal Process And Ethnic Conflicts, Elena Baylis

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Unresolved ethnic conflicts threaten the stability and the very existence of multi-ethnic states. Ethnically divided states have struggled to build safeguards against such disputes into their political and legal systems by establishing federal political structures, designing elections to encourage participation, and entering complex power-sharing arrangements, but such measures cannot be expected to prevent all conflict. Human rights and minority rights guarantees likewise have proven unable to accommodate all relevant groups and interests. Accordingly, multi-ethnic states facing persistent ethnic conflicts need to develop effective dispute resolution systems for resolving those conflicts as they arise. This presents an important question: what kinds …

A Global Convention On Choice Of Court Agreements, Ronald A. Brand

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This article reviews the work of the Special Commission of the Hague Conference on Private International Law, which meet during the first nine days of December 2003 to consider a Draft Text on Choice of Court Agreements. Negotiations originally sought a rather comprehensive convention on jurisdiction and the recognition and enforcement of judgments, with a preliminary draft convention being prepared in October 1999, and further revised at the first part of a Diplomatic Conference in June 2001. When it became clear that some countries, particularly the United States, could not agree to the convention being considered, negotiations were redirected at …

Courts As Forums For Protest, Jules Lobel

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For almost half a century, scholars, judges and politicians have debated two competing models of the judiciary's role in a democratic society. The mainstream model views courts as arbiters of disputes between private individuals asserting particular rights. The reform upsurge of the 1960s and 1970s led many to argue that courts are not merely forums to settle private disputes, but can also be used as instruments of societal change. Academics termed the emerging model the hein"public law" or "institutional reform" model.

The ongoing debate between these two views of the judicial role has obscured a third model of the role …

Remarks On Case-Management Criminal Mediation, Maureen Laflin

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Adr Without Borders, Theodore J. St. Antoine

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My task is to assess the ways in which alternative dispute resolution procedures may be adapted to deal with international labor disputes. ADR refers to various methods by which neutral third parties assist persons engaged in a conflict to settle their differences without involving the decision-making power of the state or other sanction-imposing body. Both mediation and arbitration are included. In mediation the neutral seeks to get the parties to agree on a mutually acceptable solution. In arbitration the neutral imposes a solution after presentations by the contending parties. A third term, conciliation, is sometimes used and generally connotes a …

University Of Idaho College Of Law's Seventh Annual Northwest Institute For Dispute Resolution Scheduled For May 19-23, 2003, Maureen Laflin

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No abstract provided.

Gacaca Courts: The Hope For Reconciliation In The Aftermath Of The Rwandan Genocide, Maureen Laflin

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No abstract provided.

Water Dispute Resolution In The West: Process Elements For The Modern Era In Basin-Wide Problem Solving, Barbara Cosens

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Growing urban water demand, recent recognition of tribal water rights, and needs for critical aquatic habitat in the face of the archaic law governing water allocation are driving people in the western United States to seek alternative methods to resolve water allocation disputes. The current ad hoc and locally driven approach to negotiation of basin-wide water issues runs the risk of overlooking broader interests. Whereas water use is local and rives local economies, the continued viability of our water resources and the legacy we leave to future generations in water infrastructure, social stability, an environmental amenities is national in scope. …

Teaching Adr In The Labor Field In China, Theodore J. St. Antoine

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The editors have asked us to be quite personal in our ruminations on the future of comparative labor law and policy. For me, over the past several years, the focus has been on China. My first visit to China in 1994, purely as a tourist, was almost by accident. In late September of that year I attended the XIV World Congress of the International Society for Labor Law and Social Security in Seoul, South Korea. In the second week of October, I was scheduled to begin teaching a oneterm course in American law as a visiting professor at Cambridge University …

David E. Feller: The Happy Warrior, Theodore J. St. Antoine

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Dave Feller and I first became acquainted when we were both union lawyers in Washington, D.C. Dave was the ultimate happy warrior. He went joyous into combat, and years later he could recount, joyously, objectively, and without rancor toward old foes, the exact details of the many triumphs and the few defeats. A favorite story came from his Supreme Court clerkship. Dave was already seven years out of Harvard Law School, with experience in university teaching, Army intelligence, and the Justice Department, and he didn't hesitate to tell Chief Justice Vinson he should vote for certiorari in a case close …

Icann's "Uniform Dispute Resolution Policy"- Causes And (Partial) Cures, A. Michael Froomkin

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No abstract provided.

Behavioral Genetics And The Best Interests Of The Child Decision Rule, David J. Herring

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This article proposes that modern child custody law should be reassessed in light of recent scientific findings. Judicial determinations of custody use the "best interests of the child" rule. The rule is justified to a large extent by the goal of maximizing child developmental outcomes. The assumption is that a child whose "best interests" are protected stands a better chance of becoming a socially well-adjusted, productive and prosperous citizen.

Recent child development studies have shown that so-called "shared environment," or home environment factors have little effect on child development so long as the shared environment is minimally adequate. Genetics and …

Which Means To An End Under The Uniform Mediation Act, Andrea Kupfer Schneider

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No abstract provided.

Unfriendly Actions: The Amicus Brief Battle At The Wto, Andrea Kupfer Schneider

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Troxel And The Rhetoric Of Associational Respect, David J. Herring

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A recent decision by the United States Supreme Court has brought into sharp focus important questions about the nature and extent of parents' prerogatives to dictate how their children are raised. In the case of Troxel v. Granville, the Court addressed a Washington third-party visitation statute that permitted "any person" to petition for visitation with a child. Under the statute, a petitioner had to allege that visitation would serve the child's best interest. A judge hearing such a petition could order visitation whenever he or she found that such visitation may serve the child's best interest.

The United States …

Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine

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Can a privately negotiated arbitration agreement deprive employees of the statutory right to sue in court on claims of discrimination in employment because of race, sex, religion, age, disability, and similar grounds prohibited by federal law? Two leading U.S. Supreme Court decisions, decided almost two decades apart, reached substantially different answers to this questionand arguably stood logic on its head in the process. In the earlier case of Alexander v. Gardner-Denver Co., involving arbitration under a collective bargaining agreement, the Court held an adverse award did not preclude a subsequent federal court action by the black grievant alleging racial discrimination. …

The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine

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A quarter century ago, in a provocative and prophetic article, David E. Feller lamented the imminent close of what he described as labor arbitration's "golden age." I have expressed reservations about that characterization, insofar as it suggested an impending shrinkage in the stature of arbitration. But Professor Feller was right on target in one important respect. Labor arbitration was going to change dramatically from the autonomous institution in the relatively self-contained world of union-management relations which it had been from the end of World War II into the 1970s. When the subject matter was largely confined to union-employer agreements, arbitration …

Preserving The Integrity Of Mediation Through The Adoption Of Ethical Rules For Lawyer-Mediators, Maureen Laflin

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No abstract provided.

Can Informed Consent Preserve The Integrity Of Mediation?, Maureen Laflin

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No abstract provided.