Law Commons^™

Shifting The Focus From The Myth Of "The Vanishing Trial" To Complex Conflict Management Systems, Or I Learned Almost Everything I Need To Know About Conflict Resolution From Marc Galanter, John M. Lande

Faculty Publications

To say that The Vanishing Trial is a myth is not to suggest that the facts or analysis in Professor Marc Galanter's seminal report on the vanishing trial are fictional or inaccurate. Indeed, he marshals a massive amount of data to show that the number of trials and the trial rates have been declining for the past four decades, particularly in the federal courts. The report documents an apparent paradox: the proportion of cases going to trial has dropped sharply during the past forty years despite substantial increases in many other legal indicators including the number of lawyers, the number …

Democracy And Dispute Resolution: Systems Design And The New Workplace, Richard C. Reuben

Faculty Publications

There has been growing discussion in law reviews and business journals about the so-called new workplace, which is distinguished from the old, in part, by greater employee mobility and job flexibility. This article extends that discussion by exploring the implications of the new workplace for the design of dispute resolution systems. In particular, it argues that the structure and values of the new workplace correspond to the essential values of democratic governance, and that dispute resolution should be integrated into the new workplace in a way that enhances rather than diminishes these core democratic values. As I have articulated in …

Democracy And Dispute Resolution: The Problem Of Arbitration, Richard C. Reuben

Faculty Publications

Scholars have approached arbitration, especially under the Federal Arbitration Act, from a variety of perspectives, including doctrinal, historical, empirical, and practical. One aspect that has not yet been fully considered, however, is the relationship between arbitration and constitutional democracy. Yet, as a dispute-resolution process that is often sanctioned by the government, that sometimes inextricably intertwines governmental and private conduct, and that derives its legitimacy from the government, it is appropriate--indeed, our responsibility--to ask whether arbitration furthers the goals of democratic governance. It is only sensible that state-supported dispute resolution in a democracy should strengthen, rather than diminish, democratic governance and …

The Immorality Of Denial, Jonathan R. Cohen

UF Law Faculty Publications

This article is the first of a two-part series critically examining the role of lawyers in assisting clients in denying responsibility for harms they have caused. If a person injures another, the moral response is for the injurer actively to take responsibility for what he has done. In contrast, the common practice within our legal culture is for injurers to deny responsibility for harms they commit. The immoral, in other words, has become the legally normal. In this Article, Professor Cohen analyzes the moral foundations of responsibility-taking. He also explores the moral, psychological, and spiritual risks to injurers who knowingly …

Objecting To Court Ordered Mediation, Jane C. Murphy

All Faculty Scholarship

Maryland judges have wide discretion to refer parties to mediate a variety of civil matters. Title 17 of the Maryland Rules, enacted in 1998, governs mediation of civil cases in the circuit courts. These rules are supplemented by Maryland Rule 9-205, which addresses mediation of child custody and visitation disputes. Although these rules define mediation and address mediator qualifications in some detail, they say very little about either a party's right to object to mediation or the court's authority to compel participation in mediation.

Given that the mediation rules are relatively new and mediation orders would generally be considered interlocutory, …

Mobile Home Mania? Protecting Procedurally Fair Arbitration In A Consumer Microcosm, Amy J. Schmitz

Faculty Publications

Consumers' lack of warranty remedies prompted Congress to enact the 2000 Manufactured Housing Improvement Act (MHIA). Under the Act, the Office of Housing and Urban Development (HUD) must develop a program for resolving MH warranty disputes by the end of 2005. This article provides input regarding that program. It also calls for broader protection of procedural fairness in arbitration of disputes regarding warranties for mobile or manufactured homes (referred to in the article as MHs for ease of reference). Although HUD's program aims to create a process for resolving warranty disputes among manufacturers, dealers and installers, this article proposes that …

The Vocation Of International Arbitrators, Catherine A. Rogers

Journal Articles

This Essay examines the vocation of the international arbitrator. I begin by evaluating, under sociological frameworks developed in literature on Weberian theories of the professions, how the arbitration community is organized and regulated. Arbitrators operate in a largely private and unregulated market for services, access to which is essentially controlled by what might be considered a governing cartel of the most elite arbitrators. I conclude my description with an account of how recently international arbitrators have begun to display a professional impulse, meaning efforts to present themselves as a profession to obtain the benefits of professionalization. Professional status is often …

Regulating International Arbitrators: A Functional Approach To Developing Standards Of Conduct, Catherine A. Rogers

Journal Articles

Some scholars have protested that arbitrators are subject to less exacting regulation than barbers and taxidermists. The real problem with international arbitrators, however, is not that they are subject to less regulation, but that no one agrees about how they should be regulated. The primary reason for judicial and scholarly disagreement is that, instead of a coherent theory, analysis of arbitrator conduct erroneously relies on a misleading judicial referent and a methodologic failure to separate conduct standards (meaning those norms or rules that guide arbitrators' professional conduct) from enforcement standards (meaning those narrow grounds under which an arbitral award can …

Law And Atrocity: Settling Accounts In Rwanda, Mark A. Drumbl

Scholarly Articles

Ten years ago, genocide ravaged the tiny African nation of Rwanda. In the wake of this violence, Rwanda has struggled to reconstruct, rebuild, and reconcile. Law-in particular, criminal trials for alleged perpetrators of genocide- has figured prominently among various policy mechanisms in postgenocide Rwanda. Criminal trials for Rwandan genocidaires' aspire to achieve several goals. These include exacting retribution, promoting reconciliation, deterring future violence, expressing victims' outrage, maintaining peace, and cultivating a culture of human rights.2 In this Lecture, I examine the extent to which these trials attain these multiple, often competing, and largely overwhelming goals. Part I begins by setting …

Foreward: Competing And Complementary Rule Systems: Civil Procedure And Adr, Jean R. Sternlight

Scholarly Works

This is a foreword to articles submitted as part of the Association of American Law School’s Symposium during at the January 2004 AALS’s Annual Meeting in Atlanta, Georgia entitled "Competing or Complementary Rule Systems? Adjudication, Arbitration and the Procedural World of the Future." The session brought together panelists whose expertises ranged across the academy. The legal academics were joined by the federal district judge now chairing the committee charged by the Judicial Conference of the United States to draft federal civil procedural rules. The stimulating session reflected on the relationship between litigation and non-litigation approaches to dispute resolution. Participants explored …

Lawyers, Democracy, And Dispute Resolution: The Declining Influence Of Lawyer-Statesmen Politicians And Lawyerly Values, Jeffrey W. Stempel

Scholarly Works

This Comment reviews the shrinking presence of lawyers in the arena of macrocosmic public policy. It also discusses the declining statesmanship of lawyer-politicians as part of a general decline of lawyer professionalism in the face of social and economic pressures tending to undermine lawyer professionalism. Furthermore, it addresses how the net impact of these factors undermines the potential of lawyers to act as a positive force for public policy dispute resolution.

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

Articles

No abstract provided.

The Culture Of Legal Denial, Jonathan R. Cohen

UF Law Faculty Publications

The goals of this essay are twofold. The first is to examine critically the practice of lawyers assisting clients in denying harms they commit and suggest some ways of changing that practice. Lawyers commonly presume that their clients' interests are best served by denial. Yet such a presumption is not warranted. Given the moral, psychological, relational, and sometimes even economic risks of denial to the injurer, lawyers should consider discussing responsibility taking more often with clients. The second is to explore several structural or systemic factors that may reinforce the practice of denial seen day in and day out within …