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Articles 31 - 49 of 49
Full-Text Articles in Law
Constitutional Gravity: A Unitary Theory Of Alternative Dispute Resolution And Public Civil Justice, Richard C. Reuben
Constitutional Gravity: A Unitary Theory Of Alternative Dispute Resolution And Public Civil Justice, Richard C. Reuben
Faculty Publications
Under the traditional bipolar model, civil dispute resolution is generally divided into two spheres: trial, which is public in nature and therefore subject to constitutional due process, and alternative dispute resolution (ADR), which is private in nature and therefore not subject to such constraints. In this article, Professor Richard Reuben proposes a unitary understanding of public civil dispute resolution, one that recognizes that ADR is often energized by state action and thus is constitutionally required to comply with minimal but meaningful due process standards. Depending upon the process, such standards might include the right to an impartial forum, the right …
Transforming Cultural Conflict In An Age Of Complexity, Michelle Lebaron
Transforming Cultural Conflict In An Age Of Complexity, Michelle Lebaron
All Faculty Publications
This article will survey several definitions of culture, arguing that the most useful approach is to define culture broadly and to recognize its significance to most or all conflicts. Some of the ways that culture affects conflicts will be outlined, accompanied by examples. These include: culture as a lens that both facilitates and blocks effective communication; culture and world view differences as the subject of conflicts; and conflicts related to identity and recognition as facets of cultural differences. Further discussed are Western models of third party intervention, inviting readers to examine the values and assumptions underlying them. Challenges inherent in …
Presidential Address: Contract Reading Revisited, Theodore J. St. Antoine
Presidential Address: Contract Reading Revisited, Theodore J. St. Antoine
Book Chapters
A quarter century ago, in a presentation at the Academy’s annual meeting, I used the phrase “contract reader” to characterize the role an arbitrator plays in construing a collective bargaining agreement. That two-word phrase may be the only thing I ever said before this body which has been remembered. Unfortunately, it is almost invariably misunderstood. Time and again members have reproached me: “What’s the big deal about contract reading, anyway? Isn’t it just the same as contract interpretation?” Or, more substantively scathing: “Do you really think, Ted, that all you have to do to interpret a labor agreement is to …
Public Policy Defense In International Commercial Arbitration, Mingqiang Qian
Public Policy Defense In International Commercial Arbitration, Mingqiang Qian
LLM Theses and Essays
The purpose of this thesis is to examine how public policy defense functions in international commercial arbitration and whether it will block the development of international commercial arbitration. Chapter II deals with the role of public policy in international private law. This chapter examines the origins of public policy in common law countries and its functions in international private law. It is difficult to evaluate public policy as a precise concept because of its relative nature. Nevertheless, to limit its application in international private law, legal scholars have tried to clarify differences between domestic public policy, international public policy, and …
Remarks, John H. Jackson
Remarks, John H. Jackson
Georgetown Law Faculty Publications and Other Works
The limits of international trade must be understood within the context of the institutional framework of the WTO, in particular, the decision-making and dispute settlement processes. The WTO dispute settlement rules are contained in the Dispute Settlement Understanding (DSU), which is Annex 2 to the WTO agreement. The DSU includes some comments on the philosophy, the direction and the purposes of the dispute settlement procedures. Article 3.2 of the DSU has some very interesting phrases. One of those phrases (roughly paraphrased) says, ''None of the reports of the dispute settlement procedure should result in a change, addition, or subtraction from …
Mothers And Fathers Of Invention: The Intellectual Founders Of Adr, Carrie Menkel-Meadow
Mothers And Fathers Of Invention: The Intellectual Founders Of Adr, Carrie Menkel-Meadow
Georgetown Law Faculty Publications and Other Works
When we think of the "founding" of the ADR movement (particularly, but not exclusively, in law), from when do we date it? Whom do we think of as our leaders? Many of us think of Frank Sander and the "multi-door courthouse" suggested by his famous paper, delivered at the Pound Conference on the Causes of Popular Dissatisfaction with the Administration of Justice in 1976. For others, the publication of Roger Fisher and William Ury's "Getting to Yes," signaled an interest in a changed paradigm for engaging in legal negotiations. Some may associate ADR's nascency with early practical efforts to institutionalize …
When Winning Isn’T Everything: The Lawyer As Problem Solver, Carrie Menkel-Meadow
When Winning Isn’T Everything: The Lawyer As Problem Solver, Carrie Menkel-Meadow
Georgetown Law Faculty Publications and Other Works
Today I want to address the question of what the modern lawyer needs to know and what the modern lawyer must know how to do to be good at what he or she does, to be helpful to clients, to lead a fulfilling life, and hopefully, to leave the world a better place than he or she first found it. I went to law school to work on that illusive jurisprudential concept - justice. On the outside walls of the Edward Bennett Williams Library where I work in Washington, DC, is a quote, which we attribute to a former Georgetown …
Fighting Arbitration Clauses In Franchisor Contracts, Jean R. Sternlight
Fighting Arbitration Clauses In Franchisor Contracts, Jean R. Sternlight
Scholarly Works
Purporting to serve justice, efficiency, and freedom of contract, business interests are increasingly attempting to use binding arbitration clauses to secure unfair advantages over unknowing parties. Courts seemingly have been eager to enforce arbitration clauses that appear in franchise agreements. This article discusses courts’ enforcement of arbitration clauses, undermining protections to the franchisee, and how franchisees can create a more level playing field.
Is Binding Arbitration A Form Of Adr?: An Argument That The Term "Adr" Has Begun To Outlive Its Usefulness, Jean R. Sternlight
Is Binding Arbitration A Form Of Adr?: An Argument That The Term "Adr" Has Begun To Outlive Its Usefulness, Jean R. Sternlight
Scholarly Works
Professor Frank Sander has, for many years, been one of the most prescient commentators on the alternative dispute resolution ("ADR") movement. His 1976 Pound Conference speech has been identified by many as marking the birth of the modern ADR phenomena. That speech, which compared some of the pros and cons of litigation and an array of other dispute resolution processes, has been summarized as proposing the concept of the "multi-door courthouse." In contrast, Professor Sander's more recent and very interesting review of the present and future of ADR makes little attempt to distinguish between mediation and binding arbitration, the two …
Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stempel
Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stempel
Scholarly Works
Some people (lawyers, scholars, judges, dispute resolvers, policymakers) are more concerned about fidelity to procedural protocols while others are more concerned with the substantive rules governing disputes and substantive outcomes. Those in the dispute resolution community preferring facilitation tend to be proceduralists. For them, the observance of proper procedure is a high goal, perhaps the dominant goal. They reason, often implicitly, that adherence to the rules of procedure is the essence of neutrality, fairness, and the proper role of a dispute resolving apparatus. At some level, usually subconscious, there is a post-modern philosophical aspect of this preference. Because humans cannot …
The Inevitability Of The Eclectic: Liberating Adr From Ideology, Jeffrey W. Stempel
The Inevitability Of The Eclectic: Liberating Adr From Ideology, Jeffrey W. Stempel
Scholarly Works
The problem with viewing facilitation as the only legitimate form of mediation, of course, is that it borders on tautology: mediation is nonevaluative, therefore any evaluation in mediation must be impermissible. Although this view remains strongly held in many quarters, it appears to be in retreat, both within the mediation community and in the legal community at large. Courts and commentators have shown increasing favor toward some evaluative or advising component of mediation. More important, the eclectic style appears to be what takes place in the metaphorical trenches of mediation practice (although sound empirical data is necessarily hard to obtain …
Protecting Franchisees From Abusive Arbitration Clauses, Jean R. Sternlight
Protecting Franchisees From Abusive Arbitration Clauses, Jean R. Sternlight
Scholarly Works
This article sets out a number of legal arguments that franchisees can potentially use to defeat arbitration clauses that seek to accomplish ends that would not be permissible in litigation. Drawing from decisions protecting consumers and employees from unfair arbitration clauses, as well as from opinions in the franchise context, this article analyzes arguments that can be based on the U.S. Constitution, federal statutes, state statutes, and common law. By way of this analysis, it suggests that some courts are misapplying arbitration precedents and preemption arguments to support decisions that allow franchisors to effectively exempt themselves from legislation and even …
As Mandatory Binding Arbitration Meets The Class Action, Will The Class Action Survive?, Jean R. Sternlight
As Mandatory Binding Arbitration Meets The Class Action, Will The Class Action Survive?, Jean R. Sternlight
Scholarly Works
Assuming that the traditional prerequisites for a class action have been met, courts have four choices: (1) order the dispute to be resolved in an individualized arbitration, thereby denying plaintiffs either a litigation or arbitration venue for their class claims; (2) refuse to mandate arbitration, and instead allow plaintiffs to litigate their class claims; (3) order that the dispute be resolved through an arbitral class action, also known as classwide arbitration; or (4) order the dispute to arbitration but allow the arbitrators to make the determination as to whether the dispute should be resolved individually or on a class basis. …
The Annihilation Of Sea Turtles: Wto Intransigence And U.S. Equivocation, Lakshman Guruswamy
The Annihilation Of Sea Turtles: Wto Intransigence And U.S. Equivocation, Lakshman Guruswamy
Publications
No abstract provided.
Teaching Corporate Governance Through Shareholder Litigation, Jill E. Fisch
Teaching Corporate Governance Through Shareholder Litigation, Jill E. Fisch
All Faculty Scholarship
No abstract provided.
Incentives To Settle Under Joint And Several Liability: An Empirical Analysis Of Superfund Litigation, Howard F. Chang, Hilary Sigman
Incentives To Settle Under Joint And Several Liability: An Empirical Analysis Of Superfund Litigation, Howard F. Chang, Hilary Sigman
All Faculty Scholarship
Congress may soon restrict joint and several liability for cleanup of contaminated sites under Superfund. We explore whether this change would discourage settlements and is therefore likely to increase the program 's already high litigation costs per site. Recent theoretical research by Kornhauser and Revesz finds that joint and several liability may either encourage or discourage settlement, depending on the correlation of outcomes at trial across defendants. We extend their two-defendant model to a richer framework with N defendants. This extension allows us to test the theoretical model empirically using data on Superfund litigation. We find that joint and several …
Reasons Within Passions: Emotions And Intentions In Property Rights Bargaining, Peter H. Huang
Reasons Within Passions: Emotions And Intentions In Property Rights Bargaining, Peter H. Huang
Publications
This article discusses the role of emotions (or feelings or affects) in property rights bargaining. Real world people choose bargaining strategies based upon not only rational calculations, but also their gut feelings. This article considers the impact of anger and shame on bargaining over property rights and the Coase theorem. Such emotions may depend on beliefs (expectations or assessments) about whether particular strategic decisions should or will occur. Such beliefs can be viewed as attributions over the intentions of others.
Should An Attorney Be Required To Advise Client Of Adr Options?, Marshall J. Breger
Should An Attorney Be Required To Advise Client Of Adr Options?, Marshall J. Breger
Scholarly Articles
In recent years alternative dispute resolution (ADR) has moved from the margins of legal practice into the mainstream. It is no longer the exception for attorneys to employ or clients to request ADR services in almost every aspect of legal representation. This shift to the legal mainstream raises the question whether attorneys, as part of their general obligation to keep clients informed of their legal alternatives, should be required to advise their clients regarding ADR options. This paper will consider this question. In doing so, it will consider, at least inferentially, the character and purpose of ethics "rules."
Arbitration And Judicial Review, Theodore J. St. Antoine
Arbitration And Judicial Review, Theodore J. St. Antoine
Other Publications
A quarter century ago, in a presentation at the Academy's annual meeting, I used the phrase "contract reader" to characterize the role an arbitrator plays in construing a collective bargaining agreement. That two-word phrase may be the only thing I ever said before this body that has been remembered. Unfortunately, it is almost invariably misunderstood. Time and again members have reproached me: "What's the big deal about contract reading, anyway? Isn't it just the same as contract interpretation?" Or, more substantively scathing: "Do you really think, Ted, that all you have to do to interpret a labor agreement is to …