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Articles 1 - 30 of 34
Full-Text Articles in Law
Refreshing Contractual Analysis Of Adr Agreements By Curing Bipolar Avoidance Of Modern Common Law, Amy J. Schmitz
Refreshing Contractual Analysis Of Adr Agreements By Curing Bipolar Avoidance Of Modern Common Law, Amy J. Schmitz
Faculty Publications
Law governing enforcement of ADR agreement not governed by the Federal Arbitration Act (FAA) has been uncertain, and often aimless. This Article therefore calls for clarification of this law, through development of a modern contractual approach for enforcing these non-FAA ADR procedures. Although courts may look to the FAA as a resource for evaluating and developing an enforcement approach, they also should employ modern contract and remedy tools that are more adaptive than the Act's summary enforcement because it allow courts to consider contextual, relational, and equitable factors when determining application of specific enforcement remedies. This allows courts to apply …
The Law In Action At The Wto, Spencer Weber Waller
The Law In Action At The Wto, Spencer Weber Waller
ExpressO
This review of Gregory Shaffer's new book "Defending Interests: Private-Public Partnerships in WTO Litigation" argues that Shaffer has made an important contribution to the field of international economic law. Shaffer does this by using the insights of legal realism and strong empirical work to illustrate "the law in action" rather than "the law on the books" in terms of how international trade cases in the WTO are actually generated and resolved.
Stepping Back Through The Looking Glass: Real Conversations With Real Disputants About Institutionalized Mediation And Its Value, Nancy A. Welsh
Stepping Back Through The Looking Glass: Real Conversations With Real Disputants About Institutionalized Mediation And Its Value, Nancy A. Welsh
Faculty Scholarship
This Article describes what a group of real disputants perceives as most valuable about agency-connected mediation before, soon after, and eighteen months after they participated in the process. The Article is based primarily upon qualitative data from in-depth interviews with parents and school officials who participated in special education mediation sessions. Though the specific context of these interviews is obviously important, these disputants and their disputes share many commonalities with disputants and disputes in other contexts and, as a result, these disputants' views have relevance for the broader field of mediation.
These interviews suggest that both before and after disputants …
Mindfulness: Foundational Training For Dispute Resolution, Leonard L. Riskin
Mindfulness: Foundational Training For Dispute Resolution, Leonard L. Riskin
UF Law Faculty Publications
This Article addresses the problem of mindlessness in counseling, negotiating, and mediating, and offers potential solutions and recommendations for developing foundational capacities through training in mindfulness meditation.
Procedural Justice, Lawrence B. Solum
Procedural Justice, Lawrence B. Solum
ExpressO
The real work of procedure is to guide conduct. It is sometimes said that the regulation of primary conduct is the work of the general and abstract norms of substantive law—clauses of the constitution, statutes, regulations, and common law rules of tort, property, and contract. But substance cannot effectively guide primary conduct without the aid of procedure. This is true because of three problems: (1) the problem of imperfect knowledge of law and fact, (2) the problem of incomplete specification of legal norms, and (3) the problem of partiality. The solution to these problems is particularization by a system of …
Problem-Solving Advocacy In Mediations, Harold I. Abramson
Problem-Solving Advocacy In Mediations, Harold I. Abramson
Scholarly Works
No abstract provided.
Private Lands Conservation In St. Vincent And The Grenadines, Julie Truelsen, University Of Colorado Boulder. Natural Resources Law Center
Private Lands Conservation In St. Vincent And The Grenadines, Julie Truelsen, University Of Colorado Boulder. Natural Resources Law Center
Books, Reports, and Studies
56 p. ; 28 cm
Arbitral Law-Making, Thomas E. Carbonneau
Arbitral Law-Making, Thomas E. Carbonneau
Journal Articles
Diversity--of a cultural, economic, religious, and political kind—exists not only among nation-states and in the sources and interpretation of international law, but also among the group of commentators who study the interactions of transborder actors and institutions. For example, sociologists interested in the global community seek to identify emerging entities and activities and to elaborate conceptual models that explain the new differentiations within the traditional pattern. Some of them have a mounting interest in the fashioning of transborder commercial justice by international arbitrators and private arbitral institutions. Who are these new players? How did they acquire their mandate? Further, how …
The Pervasiveness Of Culture In Conflict, Pat K. Chew
The Pervasiveness Of Culture In Conflict, Pat K. Chew
Articles
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.
New Strategies For Prisoner Rehabilitation In The American Criminal Justice System: Prisoner Facilitated Mediation, Jeremy Coylewright
New Strategies For Prisoner Rehabilitation In The American Criminal Justice System: Prisoner Facilitated Mediation, Jeremy Coylewright
Journal of Health Care Law and Policy
No abstract provided.
Copyright Nonconsequentialism, David Mcgowan
Copyright Nonconsequentialism, David Mcgowan
Missouri Law Review
This Article explores the foundations of copyright law. It tries to explain why those who debate copyright often seem to talk past each other. I contend the problem is that copyright scholars pay too much attention to instrumental arguments, which are often indeterminate, and too little to the first principles that affect how one approaches copyright law.
In Search Of The Best Procedure For Enforcing Employment Discrimination Laws: A Comparative Analysis, Jean R. Sternlight
In Search Of The Best Procedure For Enforcing Employment Discrimination Laws: A Comparative Analysis, Jean R. Sternlight
Scholarly Works
As our world effectively shrinks, many countries are beginning to reach a striking substantive consensus regarding the prohibition of employment discrimination. Yet, and in sharp contrast, nothing approaching consensus has yet emerged regarding the best procedural method with which to resolve individual claims of employment discrimination. Instead, while countries have struggled, individually, to devise processes that meet a variety of needs, none seems to be satisfied with its efforts. Litigation is slow, costly, and impersonal. Informal processes such as conciliation, mediation, arbitration, or administrative processes aim to be faster and cheaper, but may not result in adequate enforcement of discrimination …
Insights From Cognitive Psychology, Chris Guthrie
Insights From Cognitive Psychology, Chris Guthrie
Vanderbilt Law School Faculty Publications
My goal in this paper is to explore cognitive psychology's place in the dispute resolution field. To do so, I first look back and then look forward. Looking back, I identify the five insights from cognitive psychology that have had the biggest impact on my own dispute resolution teaching and scholarship. Looking forward, I identify my five hopes for the future of cognitive psychology in the dispute resolution field.
Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Chris Guthrie
Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Chris Guthrie
Vanderbilt Law School Faculty Publications
Seven law school faculty members and one practicing attorney recently developed and taught a wholly new kind of law course based on an already published case study, Damages: One Family's Legal Struggles in the World of Medicine, by Barry Werth, an investigative reporter who spent several years researching to write the book. Damages, an in-depth account of a medical malpractice case, presents the perspectives of the injured family, the defendant physician, the lawyers, and the three mediators. In this Symposium Introduction, the authors provide a summary of Werth's book, explain why they decided to create a course based on his …
Arbitral Law-Making, Thomas E. Carbonneau
Arbitral Law-Making, Thomas E. Carbonneau
Michigan Journal of International Law
Diversity--of a cultural, economic, religious, and political kind—exists not only among nation-states and in the sources and interpretation of international law, but also among the group of commentators who study the interactions of transborder actors and institutions. For example, sociologists interested in the global community seek to identify emerging entities and activities and to elaborate conceptual models that explain the new differentiations within the traditional pattern. Some of them have a mounting interest in the fashioning of transborder commercial justice by international arbitrators and private arbitral institutions. Who are these new players? How did they acquire their mandate? Further, how …
Mediation: Ein Meta Modell, Nadja Alexander
Mediation: Ein Meta Modell, Nadja Alexander
Research Collection Yong Pung How School Of Law
The Mediation Meta-Model introduced in this article provides a framework for understanding a range of mediation practice models and their relationship to each other and to other ADR processes. It extends the work of Riskin in two ways: first by revising the dimensions of his original Grid to form a Mediation Meta-Model and second, by identifying and labeling a range of practice models within this Meta-Model. The practice models draw from Boulle\u27s work and extend Boulle\u27s four primary models to five. This Meta-Model is developmental insofar as it has the ability to accommodate emerging and changing practice models of mediation. …
Expected Value Arbitration, Joshua Davis
Arbitration, Unconscionability, And Equilibrium: The Return Of Unconscionability Analysis As A Counterweight To Arbitration Formalism, Jeffrey W. Stempel
Arbitration, Unconscionability, And Equilibrium: The Return Of Unconscionability Analysis As A Counterweight To Arbitration Formalism, Jeffrey W. Stempel
Scholarly Works
However incomplete, unaggressive, or sub-optimal, unconscionability analysis of arbitration agreements has made something of a comeback in the late twentieth century and early twenty-first century. Just as nature abhors a vacuum, water seeks to be level, and ecosystems work to retain environmental stability, the legal system has witnessed an incremental effort by lower courts to soften the rough edges of the Supreme Court's pro-arbitration jurisprudence through rediscovery of what might be called the “unconscionability norm”--a collective judicial view as to what aspects of an arbitration arrangement are too unfair to merit judicial enforcement. In rediscovering and reinvigorating the unconscionability norm …
Understanding Settlement In Damages (And Beyond), Chris Guthrie
Understanding Settlement In Damages (And Beyond), Chris Guthrie
Vanderbilt Law School Faculty Publications
For all of the ways in which the Sabia case is extraordinary, its outcome--settlement--is decidedly ordinary. In most civil litigation, as in the Sabias' litigation against Dr. Maryellen Humes and Norwalk Hospital, "[s]ettlement is where the action is." Roughly two-thirds of all cases settle (and most of the rest are resolved through motions). Why do most cases settle? Given the costs, delay, and unpleasantness of the litigation process, why do any cases go to trial? To address these questions--that is, to explain why most cases settle as well as why some cases "fail" to settle and result in trial--legal academics …
Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Leonard L. Riskin
Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Leonard L. Riskin
UF Law Faculty Publications
Seven law school faculty members and one practicing attorney recently developed and taught a wholly new kind of law course based on an already published case study, Damages: One Family's Legal Struggles in the World of Medicine, by Barry Werth, an investigative reporter who spent several years researching to write the book. Damages, an in-depth account of a medical malpractice case, presents the perspectives of the injured family, the defendant physician, the lawyers, and the three mediators. In this Symposium Introduction, the authors provide a summary of Werth's book, explain why they decided to create a course based on …
Damages: Using A Case Study To Teach Law, Dispute Resolution, And Lawyering , Melody Richardson Daily, Chris Guthrie, Leonard L. Riskin
Damages: Using A Case Study To Teach Law, Dispute Resolution, And Lawyering , Melody Richardson Daily, Chris Guthrie, Leonard L. Riskin
Faculty Publications
Seven law school faculty members and one practicing attorney recently developed and taught a wholly new kind of law course based on an already published case study, Damages: One Family's Legal Struggles in the World of Medicine, by Barry Werth, an investigative reporter who spent several years researching to write the book. Damages, an in-depth account of a medical malpractice case, presents the perspectives of the injured family, the defendant physician, the lawyers, and the three mediators. In this Symposium Introduction, the authors provide a summary of Werth's book, explain why they decided to create a course based on his …
International Law Status Of Wto Dispute Settlement Reports: Obligation To Comply Or Option To "Buy Out"?, John H. Jackson
International Law Status Of Wto Dispute Settlement Reports: Obligation To Comply Or Option To "Buy Out"?, John H. Jackson
Georgetown Law Faculty Publications and Other Works
In four further parts of this comment, I undertake to fulfill my "obligation" to present a more thorough analysis. In part II, I briefly introduce some of the different elements that would go into normal treaty interpretation related to the issue in question, such as which text should be part of the analysis and whether "preparatory work" or intent of the parties, including statements by some nation-state governmental officials made contemporaneously with the drafting of the treaty, should be considered. Likewise, I mention the importance of the forty seven years of GATT practice to the interpretive process, and I note …
Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Melody Richardson Daily, Chris Guthrie, Leonard L. Riskin
Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Melody Richardson Daily, Chris Guthrie, Leonard L. Riskin
Journal of Dispute Resolution
One of the primary goals of the Center for the Study of Dispute Resolution (CSDR) at the University of Missouri-Columbia School of Law has been to develop innovative and alternative teaching models that prepare law students to be better, more responsive lawyers and to broaden the philosophical maps (or mental models or mind sets) with which they approach their work
Understanding Settlement In Damages (And Beyond), Chris Guthrie
Understanding Settlement In Damages (And Beyond), Chris Guthrie
Journal of Dispute Resolution
The purpose of this article is to introduce these academic accounts of settlement and to consider whether they provide insight into the settlement of the Sabias' litigation against Humes and Norwalk. I believe these accounts are largely complementary rather than competing, so my own view is that each sheds some light on litigation and settlement behavior in most civil cases (including the Sabia case).
From Legal Disputes To Conflict Resolution And Human Problem Solving: Legal Dispute Resolution In A Multidisciplinary Context, Carrie Menkel-Meadow
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 …
Insurance Aspects Of Damages, The, Douglas R. Richmond, Robert H. Jerry Ii
Insurance Aspects Of Damages, The, Douglas R. Richmond, Robert H. Jerry Ii
Journal of Dispute Resolution
"[I]t is difficult ... to imagine an event or transaction that does not involve insurance in some way."' So it is with the most salient event in the lives of Tony and Donna Sabia, whose son Tony John Sabia, or "Little Tony," was born with profound disabilities. In the final analysis, the ability of Tony and Donna to pay for the future medical care and living expenses needed by their son depends on whether they can reach the liability insurance coverage possessed by the health care providers who attended Donna and Little Tony at the time of his birth. It …
The Case For Auctioning Countermeasures In The Wto, Kyle Bagwell, Petros C. Mavroidis, Robert W. Staiger
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 …
Appellate Mediation—A Mediator’S Perspective, L. Wayne Scott
Appellate Mediation—A Mediator’S Perspective, L. Wayne Scott
Faculty Articles
A mediator helps the parties determine whether there is a bargaining zone that will allow a settlement to be reached. Mediation is an alternative form of conflict resolution, which promotes the interests of private and public resources that would otherwise be spent on litigation, while also empowering the parties to seek better justice than they would find in court. Anyone can serve as a mediator, but one should be well-trained in people skills, negotiation techniques, and knowledgeable about trial and appellate procedure and trends.
A mediator’s job includes: (1) helping the parties review and analyze their case; (2) bridging the …
Report To Law Revision Commission Regarding Recommendations For Changes To California Arbitration Law, Roger P. Alford
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 …
Teaching And Learning From The Mediations In Barry Werth's Damages, Leonard L. Riskin
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."