Law Commons^™

The Four Ways To Assure Mediator Quality (And Why None Of Them Work), Michael L. Moffitt

Michael L. Moffitt

Mediation is at a crossroads. Virtually every court system in the United States today promotes mediation in formal and informal ways. Mediation clauses are now considered utterly routine in most contracts. When disputes arise between sophisticated parties, the question is no longer whether to mediate, but rather how, when, and with whom. And yet, mediation has expanded with no systematic consideration of mechanisms for assuring the quality of the services mediators provide. This article outlines the framework that has been missing from public conversations about mediation. Over time, members of every practice or profession (whether doctors, lawyers, plumbers, or tattoo …

International Commercial Arbitration In Cuba, Kevin S. Tuininga

Kevin S Tuininga

This article discusses the prospect of international commercial arbitration in Cuba.

Are Contingent-Fee Attorneys Deterred?: How Courts Can More Effectively Police Adhesive Arbitration Agreements, Kenyon Harbison

Kenyon D Harbison

If you’re like me, you become bound by a new arbitration agreement almost every day, sometimes without even knowing it. They are included with banking and credit card statements, in most employment contracts, and in most purchase agreements. When we make purchases online we ‘click’ our assent to them without reading them. When we receive them in the mail we signal our assent by failing to opt out. But what happens when we are injured, defrauded, or cheated, try to sue, and find we are instead subject to arbitration? What standards can we expect courts to apply if we challenge …

The Law Firm Caste System, Tiffani N. Darden

Tiffani N. Darden

Diversity eludes the most prestigious legal employers—the federal judiciary, academia, and elite law firms—despite enlightened scholarship diagnosing the quandaries of workplace equity in professional settings. While recruitment efforts stream attorneys of color into the lower ranks of corporate law firms, management and the profession still grapple with retention challenges. How can the legal profession, including law firms, resolve this problem? In addressing this question, I examine the uncharted intersection between two bodies of legal scholarship: workplace equity theory and the institutional analyses of law firm diversity. The primary data collection method for this study consists of personal interviews with diversity …

Sticks, Stones, And Schoolyard Bullies: Restorative Justice, Mediation And A New Approach To Conflict Resolution In Our Schools, Leah M. Christensen

Leah M Christensen

Abstract: One of the most damaging and increasing problems in our schools today is student teasing and bullying. The research is clear: victims and bystanders of bullying will experience emotional scars with long-term effects. This Article discusses the failure of the traditional legal system to prevent bullying and to provide appropriate compensation for its victims. In addition, the Article introduces a new approach to conflict resolution in our schools called the Social Inclusion Approach. Based upon principles of Restorative Justice, the Social Inclusion Approach seeks to change the climate of the school and give the bystanders the power to say, …

Res Judicata In The Icj’S Genocide Case: Implications For Other Courts And Tribunals?, Peter S. Prows, Michael Ottolenghi

Peter S Prows

The International Court of Justice’s (“ICJ”) 2007 Judgment in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (“Genocide case”) has, perhaps predictably, already attracted significant attention from the academic community. Much of this attention has focused on the merits of the judgment, but one commentator has suggested that the Genocide case will be remembered mostly “for the wider impact it will have on issues of res judicata and evidence.” While the important evidentiary issues in the Genocide case have started to generate their own commentary, the issue of res judicata has received …

Holistic Approaches To Classroom Instruction, A Precursor To More Collaborative Lawyers: Reflections Of A Professor And Collaborative Lawyer, Kathy-Ann K. Hart

Kathy-Ann K Hart

Coupling of academia and practice in legal curricula can make programs of law study more holistic than many of them currently are. Encouraging law students to learn in more than one way in the classroom engages them as multi-dimensional learners or beings. As a collaborative lawyer I have a vested interest in increasing the numbers of lawyers who choose collaborative practice and I believe that peaceful, more co-operative ways of practicing law (like employing collaborative principles) can create future lawyers and a legal profession that’s healthier and happier. In this article, I reflect on my application of holistic approaches in …

The World Bank's Inspection Panel: Promoting True Accountability Through Arbitration, Enrique Carrasco

Enrique R Carrasco

In September 1993, the World Bank created the Inspection Panel. At the time, it was hailed as an unprecedented effort to increase the Bank’s accountability. Prior to the establishment of the Panel, the Bank had engaged in a number of projects that devastated local populations and caused significant environmental damage. After unrelenting pressure from environmental and human rights non-governmental organizations (“NGOs”), the World Bank established the Inspection Panel with hopes of bringing transparency to the Bank’s project lending. Generally, the Panel is charged with investigating complaints filed by parties in borrower countries who believe that the Bank is violating its …

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

Jacqueline D Lipton

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 …

Do Courts Create Moral Hazard? When Judges Nullify Employer Liability In Arbitrations: An Empirical Analysis, Michael H. Leroy

Michael H LeRoy

State courts are creating conditions for moral hazard in the arbitration of employment disputes. The problem begins when employers compel individuals to arbitrate their legal claims, denying them access to juries and other benefits of a trial. This empirical study identifies a disturbing trend. State courts vacated many arbitration wins for employees, but not for employers. My database has 443 federal and state court rulings from 1975-2007. Remarkably, state appellate courts confirmed only 56.4% of employee wins in arbitration. But when the same courts ruled on employer victories, they confirmed 86.7% of awards. The difference in rates was statistically significant. …

Hedonic Adaptation And The Settlement Of Civil Lawsuits, Jonathan S. Masur, John Bronsteen, Christopher Buccafusco

Jonathan S. Masur

This paper examines the burgeoning psychological literature on happiness and hedonic adaptation (a person’s capacity to preserve or recapture her level of happiness by adjusting to changed circumstances), bringing this literature to bear on a previously overlooked aspect of the civil litigation process: the probability of pre-trial settlement. The glacial pace of civil litigation is commonly thought of as a regrettable source of costs to the relevant parties. Even relatively straightforward personal injury lawsuits can last for as long as two years, delaying the arrival of necessary redress to the tort victim and forcing the litigants to expend ever greater …

Remedies For Wrong Preliminary Injunctions: The Case For Disgorgement Of Profits And Only Partial Liability For Harms, Barak Medina, Ofer Grosskopf

Barak Medina

A party who applies for a preliminary injunction is required to post a bond that would cover the harms inflicted on any party who is found to have been wrongfully enjoined or restrained. Yet, the moving-party’s liability frequently covers only a fraction of the actual costs and harms inflicted by the injunction. In addition, courts reject most claims for restitution of benefits gained by the plaintiff on the basis of the wrong preliminary injunction. This Article demonstrates that these practices are only partially justified. It supports the practice of requiring the moving-party to compensate the defendant for only part of …

Stalking The Walking Wounded: An Empirical Study Of Lawyer Distress, Work Satisfaction, And Decisionmaking Preferences, Susan Daicoff

Susan Daicoff

Abstract: Attorney distress is an empirically-documented phenomenon. Depression and alcoholism, for example, occur among attorneys at about twice the rate found in the general population. Empirical research also suggests that certain personality attributes and decisionmaking preferences distinguish attorneys from the general population. Previous research had investigated the relationship of lawyer dissatisfaction to certain personality attributes and decisionmaking preferences, as well as the relationship of law student distress to values. Focusing on practicing lawyers, this empirical study investigated the relationship between attorney distress, work dissatisfaction, and two decisionmaking preferences. This study found no relationship between the two decisionmaking preferences and attorney …

Beyond The Four Corners Of A Written Contract: A Global Challenge To U.S. Contract Law, Chunlin Leonhard

Chunlin Leonhard

U.S. contract law has developed on the basis of certain essential assumptions such as freedom of contract, autonomy and liberal individualism. Because of those basic assumptions, U.S. contract law primarily concerns itself with only protecting the resulting bargain reached by the parties. Relying on a set of well entrenched contract interpretation and construction principles, U.S. courts will generally refuse to look beyond the four corners of the written contract. Hence, in a U.S. court, a party is entitled to enforce terms of a written contact to the letter. U.S. contract law’s underlying assumptions, however, reflect the core values of the …

The Boundaries Of Contact Law In Cyberspace, Leon E. Trakman

Leon E Trakman Dean

Cyberspace has introduced novel ways in which to conclude, perform and terminate agreements. It has also raised doubts about whether traditional principles of contract law can adequately regulate new categories of contracts like click-wrap and browse-wrap agreements that were unheard of a few decades ago. This article explores these exciting new developments. Starting with an examination of late Nineteenth and early Twentieth adhesion contracts and the law of unconscionability, it evaluates innovations in contracting that have evolved since then. Uncovering the complexities associated with “wrap” contracts and End User Licensing Agreements [EULAs], it scrutinizes how legislatures and courts have responded …

Bundles Of Hope: Putting Aspirations In Order, Marc A. Morgan

Marc A. Morgan

The primary purpose of this paper is to discuss cardinal utility theories of how aspiration affects negotiation and to propose an alternative ordinal utility theory of how aspiration affects negotiation. In the cardinal utility theories, used by some legal scholars, aspiration in negotiation is a utility maximizing point after which negotiators become increasingly loss averse. While in the ordinal utility theory this paper proposes, aspiration in negotiation is a goal that maximizes utility subject to constraints and subjective preferences.

Peer Pressure: Correlations Between Membership In Regional And Regional Economic Organizations And Wto Dispute Resolution Claims And Their Implications, Alexandra R. Harrington

Alexandra R. Harrington

Abstract: Peer Pressure: Correlations Between Membership in Regional and Regional Economic Organizations and WTO Dispute Resolution Claims and Their Implications. Alexandra R. Harrington, Esq. Peer pressure is a well-known phenomenon, believed responsible for everything from teenage experimentation and angst to the cliff-diving habits of lemmings. But peer pressure is less commonly thought of as a motivation for a state to act – or fail to act – in the international trade arena. The goal of this article is to explore the relationship between a state’s membership in a variety of regional and regional economic organizations and its history of bringing …

Compelling Mediation In The Context Of Med-Arb Agreements, Sean-Patrick Wilson, David J. Mclean

Sean-Patrick Wilson

The recent case of Advanced Bodycare v. Thione, 07-12309, 2008 U.S. App. LEXIS 8584 (11th Cir. Apr. 21, 2008) invited the Eleventh Circuit to explore which types of ADR are considered “arbitration” for purpose of the Federal Arbitration Act, 9 U.S.C. § 1 (“FAA”). According to the Eleventh Circuit, an agreement to mediate, as well as an agreement to either mediate or arbitrate, falls outside of the FAA’s scope, making the FAA’s remedies unavailing to parties wishing to use its provisions to stay litigation or to compel a single agreement which requires the parties to either mediate or arbitrate. The …

Sovereign Rivalry Between Korea And Japan Fermented By A Distorting Fisheries Agreement, Young K. Kim

Young K Kim

The 1998 Fishery Agreement between Korea and Japan has been reviewed in view of the law of treaty, in this article. In concluding the 1998 Fishery Agreement, the contracting parties failed to reach even the preliminary point of mutual consent and evaded the differences of stance in delineating the provisionally arranged zone in the East China Sea, by concealing them with intended ambiguous terms, simply for the purpose of maintaining superficial contractual relations. In delineating another provisionally arranged zone in East Sea/the Sea of Japan, a legal confusion in the part of Korea and Japanese side’s persistent intention to earn …

Capital In Chaos: The Subprime Mortgage Crisis And The Social Capital Response, Raymond H. Brescia

Raymond H Brescia

“Capital in Chaos: The Subprime Mortgage Crisis and the Social Capital Response,” examines the role of trust and the absence of social capital in the subprime mortgage crisis, with a particular focus on the impact of the subprime crisis on communities of color.

Bargaining In The Shadow Of Violence: The Npt, Iaea, And Nuclear Non-Proliferation Negotiations, Arsalan M. Suleman

Arsalan Suleman

The NPT non-proliferation regime is both a multilateral treaty of international law and a dispute system designed to manage conflict over the use of nuclear technology. The system seeks to balance the competing desires of member-states to have access to peaceful nuclear technology and to provide national security. In the course of implementation, the system must handle disputes over alleged violations of the NPT and IAEA safeguards agreements. Negotiations, crucial to the functioning of the NPT dispute system, are undertaken in the shadow of the law and the shadow of violence. The NPT and any relevant agreement signed with the …

Collaborative Governance: Emerging Practices And The Incomplete Legal Framework For Citizen And Stakeholder Voice, Lisa Blomgren Bingham

Lisa Blomgren Bingham

I argue here that we need a comprehensive model to understand emerging uses of collaboration across the policy continuum, and that we need to re-examine our legal framework for policy making, implementation, and enforcement to encompass this new collaborative governance. I take as my starting point the normative assumption that collaboration exists, and that it is useful and desirable in certain contexts if designed and implemented well. This article describes the broad range of processes through which citizens and stakeholders collaborate to make, implement, and enforce public policy, and then describes the incomplete legal framework for these processes. First, it …

Two Crises Of Confidence: Securing Non-Proliferation And The Rule Of Law Through Security Council Resolutions, Vik Kanwar

Vik Kanwar

This timely article describes the powers of the United Nations Security Council as they have developed in the field of non-proliferation, and demonstrated in recent resolutions, and goes on to propose a normative framework based on the model of reciprocal “confidence-building” measures to ensure the legality and legitimacy of these resolutions.

Recent proliferation crises (concerning Iran, North Korea, and non-state proliferation networks) have led the Council draw upon various sources-- express and implied powers under the UN Charter, powers granted by specific treaties, and an unusual degree of international consensus-- to expand its powers. This paper attempts to transcend false …

The Paradox Of Social Instability In China And The Role Of The Xinfang System, Matthew Adam Bruckner

Matthew Adam Bruckner

No abstract provided.

The Holocaust, Museum Ethics, And Legalism, Jennifer Kreder

Jennifer Kreder

The attached article is a provocative analysis of the “Holocaust art movement.” The movement has led to significant and controversial restitutions from museums. This article focuses on two emotionally driven claims refused by the Auschwitz-Birkenau State Museum: One to recover a suitcase stolen from a murdered man, and the other to recover watercolors a woman was forced to paint for Josef Mengele to document his pseudo-scientific theories of racial inferiority and his cruel medical experiments. These claims provide insightful case studies to examine the emotional and ethical aspects of such disputes uncomplicated by the monetary issues in many of the …

The Movement Toward Early Case Handling In Courts And Private Dispute Resolution, John Lande

John Lande

This article identifies early case handling (ECH) as an important general phenomenon in dispute system design theory and practice, catalogs the major ECH processes, and urges practitioners and policymakers to encourage use of and experimentation with ECH processes when appropriate. The key element of ECH is that people intentionally exercise responsibility for handling the case from the outset. ECH processes in courts include early case management procedures, differentiated case management systems, early neutral evaluation, and other early alternative dispute resolution (ADR) processes. ECH in the private sector includes ADR pledges and contract clauses, early case assessment and ADR screening protocols, …

The Curious Appellate Judge: Ethical Limits On Independent Research, Beth Thornburg

Beth Thornburg

Appellate judges in the twenty-first century find themselves in a world in which litigation – both civil and criminal -- involves a vast array of complex and technical factual disputes. These lawsuits, in turn, may cause judges to seek a greater level of expertise in order to deal competently with the evidence that will be relevant to the disputes. At the same time, advances in communication technology have brought the world’s library to the courthouse, requiring no onerous trips across town or index searches but only the click of a mouse. When judges feel the need for additional information, the …

Toward A Vibrant Peruvian Middle Class: Effects Of The Peru-United States Free Trade Agreement On Labor Rights, Biodiversity, And Indigenous Populations, Stephen J. Powell, Paola A. Chavarro

Stephen Joseph Powell

Past research confirms that trade and human rights are inextricably linked by trade's effects on poverty, labor, women, indigenous populations, health, and the environment. We identified surprisingly direct linkages between these two vital policies in WTO agreements as well as that regional trade agreements add positive indirect contributions by to rules-based governance through their emphasis on transparency, accountability, and due process by governments, as well as timeliness, inclusive record keeping, and impartiality in the administrative decisional process. The present research examines a particular country and a single trade agreement, Peru and the trade agreement between Peru and the United States. …

Do Cognitive Biases Affect Adjudication?: A Study Of Labor Arbitrators (With Monica Biernat), Martin H. Malin, Monica Biernat

Martin H. Malin

Labor arbitrators were presented with four cases to decide, each involving a challenge to discipline or discharge of an employee resulting from a work-family conflict. Arbitrators were randomly given versions of the cases in which the gender and one other characteristivc of the employee were varied. The results showed little evidence of direct gender bias in decision-making but did reflect bias against single parents and employees with eldercare, as opposed to childcare, responsibilities. Implications for other adjudicators, including judges, jurors and administrative agency officials are discussed.

The Fantasy Of Athlete Publicity Rights: Public Fascination And Fantasy Sports' Assertion Of Free Use Place Athlete Publicity Rights On An Uncertain Playing Field, Maureen A. Weston Prof.

Maureen A Weston

This Comment examines the treatment of athlete publicity rights in the context of fantasy sports as well as new media uses. Part I examines cases where athlete publicity rights have been recognized and rejected. Part II focuses upon fantasy sports' challenge to player publicity rights in C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P. In C.B.C, both the federal district court and Eighth Circuit Court of Appeals upheld, albeit for different reasons, the unlicensed use of player names and statistics by a fantasy sports provider in the online games that C.B.C. sells to the public. Part …