Law Commons^™

Remembrance Of Things Past? The Relationship Of Past To Future In Pursuing Justice In Mediation, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

In this Article I seek to explore, not resolve, some of the issues and tensions in the role of temporality in achieving justice through mediative processes and to suggest some correctives at the practice level, as well as encourage some deeper thinking at the theoretical level. I focus here on issues of expression of temporality ("the past") in the "justice and mediation" question, not on issues of how the past should be judged - by the rule of law, culture, or universal human rights principles, or even how it can be "managed" when understandings of the past conflict or cannot …

External Law In Arbitration Hard-Boiled, Soft-Boiled, And Sunny-Side Up, Theodore J. St. Antoine

Book Chapters

Thirty-seven years ago Bernie Meltzer and the late Bob Howlett squared off at our annual meeting in a classic confrontation on an issue that refuses to die. What should an arbitrator do when there is a seemingly irreconcilable conflict between a provision of a collective bargaining agreement and the dictates of external law? Professor Meltzer was the hard-boiled logician. Arbitrators' proper domain is the parties' contract, said he, and we "should respect the agreement and ignore the law" when the two diverge. Howlett took the softer, more accomodating approach. He reasoned that "every agreement incorporates all applicable law" and so …

The State Of External Law's Effect On The Arbitration Process. Iii. A Commentary On The External Law Papers And Iv. Panel Discussion, Theodore J. St. Antoine, Marilyn S. Teitelbaum, Robert Vercruysse

Book Chapters

Marilyn Teitelbaum: I think I have the best of all worlds because I can read these great papers, without having to prepare one of my own, and like all lawyers I like to talk. So, I can share my views, that sometimes diverge from both of the views just presented, particularly the view from the management perspective.

In one part of Ted St. Antoine’s paper that was not discussed with you today, he says that the external law question may be a “tempest in a tea pot.” My words would be similar—“much ado about nothing.” I think there is a …

A Mirage In The Sand? Distinguishing Binding And Non-Binding Relations Between States, Christine M. Chinkin

Book Chapters

The article discusses the two decisions (thus far) of the International Court of Justice in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, especially its consideration of when an internationally binding agreement has come into existence. The Court's willingness to infer a legally binding agreement, regardless of the intentions of at least one of the parties, appears to displace the primacy of consent it has emphasized in its earlier jurisprudence. The decision seems to hold states bound by informal commitments, an approach that might inhibit open negotiations between states and undermine genuine attempts to pre-empt disputes …

Summary Of Rickard V. Montgomery Ward & Co., 120 Nev. Ad. Op. 54, Amanda Yen

Nevada Supreme Court Summaries

On January 23, 1993, appellant David Rickard was involved in an incident at the Montgomery Ward store. On April 20, 1993, he filed a complaint in the Clark County District Court alleging various claims against the store. Approximately four years after the complaint was filed in court, Ward filed a chapter 11 bankruptcy proceeding with the United States Bankruptcy Court in the District of Delaware. In accordance with federal bankruptcy law, Rickard’s action in the Nevada district court was stayed. On August 25, 1998, Rickard filed a motion for relief from stay in order to further his action against Ward. …

From Legal Disputes To Conflict Resolution And Human Problem Solving: Legal Dispute Resolution In A Multidisciplinary Context, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Although this essay traces my own intellectual journey as a teacher and scholar of "alternative dispute resolution," it describes as well the evolution of the field of dispute resolution (rooted in legal studies) to the now broader field of conflict resolution that encompasses the study of disputes and conflicts, not only when they "come to law" in legal disputes, but in all forms of human conflict, including the interpersonal, domestic, and international. While my work began in legal disputing, it quickly moved to the more interdisciplinary study of conflict resolution when I sought better solutions to human problems than those …

Washington, D.C. Movable Feast: The Odds On Leviathan - Dispute Resolution And Washington D.C.'S Culture, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The field of dispute resolution has benefited enormously from a great wave of enthusiasm during its first two decades. But "youth's a stuff will not endure," and the first flush of ardor is an uncertain basis for confidence in the long term. Now, there is reason to believe that our field, like its predecessor professional fields, is vulnerable to the incentive structures built in to both academic and practice careers. At the same time, what we think of as a national (or larger) movement may be increasingly affected by local cultures.

Procedural Justice, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This article begins in part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits?

The theory of procedural justice is developed in several stages, beginning with some preliminary questions and problems. The first question--what is procedure?--is the most difficult and requires an extensive …

The Case For Tradable Remedies In Wto Dispute Settlement, Kyle Bagwell, Petros C. Mavroidis, Robert W. Staiger

Faculty Scholarship

In response to concerns over the efficacy of the WTO dispute settlement system, especially in regard to its use by developing countries, Mexico has tabled a proposal to introduce tradable remedies within the Dispute Settlement Understanding. The idea is that a country that has won cause before the WTO, and who is facing non-implementation by the author of the illegal act but feels that its own capacity to exercise its right to impose countermeasures is unlikely to lead to compliance, can auction off that right. The attractiveness of this idea is that it offers an additional possibility to injured WTO …

Summary Of Health Plan Of Nev., Inc. V. Rainbow Medical, Llc, Matt Wagner

Nevada Supreme Court Summaries

This case was an appeal and cross-appeal dealing with Nevada’s Uniform Arbitration Act and the scope of judicial review of an arbitration award.

Mining Mediation Rules For Representation Opportunities And Obstacles, Harold I. Abramson

Scholarly Works

No abstract provided.

Teaching And Learning From The Mediations In Barry Werth's Damages, Leonard L. Riskin

UF Law Faculty Publications

This essay is based primarily on materials the author developed for courses taught at the University of Missouri-Columbia, School of Law, in the winter 2002 and 2003 semesters, based on Barry Werth's book, "Damages."

Report To Law Revision Commission Regarding Recommendations For Changes To California Arbitration Law, Roger P. Alford

Journal Articles

In this Article, Professor Alford discusses a report by the Law Revision Commission recommending that certain changes be made to arbitration law in California. It begins by outlining the history of arbitration in California, from its 1961 adoption of the Uniform Arbitration Act, to the 1988 enactment of an international arbitration statute modeled on the UNCITRAL Model Law, to the 1989 enactment of Section 1281.8, which allowed courts to grants provisions remedies to parties involved in arbitration proceedings. It also provides a general overview of the purpose and practice of arbitration law. Then, it provides a chapter-by-chapter analysis the Law …

Creating And Certifying The Professional Mediator -- Education And Credentialing, Joseph B. Stulberg, Donald C. Peters, Tracy L. Allen, Judith P. Meyer

UF Law Faculty Publications

Existing and pending law school mediation programs, post-graduate mediator training programs, mentorship programs, credentialing movements, and continuing mediation education were examined by a panel and speakers directly involved in those fields. Are we effectively training new mediators in law schools and post-graduate programs? Should we, and how can we, "credential" mediators? Do good mediators need to be re-trained? How would continuing mediation educational requirements be implemented?

The Lawyer's Role(S) In Deliberative Democracy, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

In this paper I will explore the idea of a "neutral" lawyer who may have neither "client" (in the conventional sense of client) to represent nor advocacy to perform, yet still be functioning fully as a lawyer or "learned professional" schooled in the law. Indeed, in this paper I will suggest that lawyers may be especially useful in performing a variety of "new" functions that depart from traditional conceptions of the lawyer's role, but which lawyers may be especially well suited to perform. It may be counter-cultural to think of lawyers as "consensus builders," rather than as advocates or makers …

The Case For Auctioning Countermeasures In The Wto, Kyle Bagwell, Petros C. Mavroidis, Robert W. Staiger

Faculty Scholarship

A major accomplishment of the Uruguay Round of GATT negotiations in creating the World Trade Organization (WTO) was the introduction of new dispute settlement procedures. These procedures were intended to provide a significant step forward, relative to GATT, in the settling of trade disputes, in large part by ensuring that violations of WTO commitments would be met with swift retaliation ("suspension of concessions") by the affected trading partners. While the dispute settlement procedures of the WTO indeed represent a considerable improvement over those in GATT, nine years of experience under the new procedures suggests that significant problems of enforcement remain …