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2005

Dispute Resolution and Arbitration

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Articles 121 - 143 of 143

Full-Text Articles in Law

Dispute Resolution, Access To Civil Justice And Legal Education, Trevor C. W. Farrow Jan 2005

Dispute Resolution, Access To Civil Justice And Legal Education, Trevor C. W. Farrow

Articles & Book Chapters

This article examines current dispute resolution teaching and research programs in the context of improving access to justice through recent civil justice reform initiatives. Animated by extensive domestic and international literature, online and survey-based research, the article explores the landscape of alternative dispute resolution education (primarily at law schools), comments on the need for continued thinking and reform and acts as a leading resource to assist in the ongoing, collaborative development of dispute resolution initiatives in legal education in Canada and abroad.

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The Culture Of Legal Denial, Jonathan R. Cohen Jan 2005

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 …

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Tribute To Dean Timothy J. Heinsz, A, Robert G. Bailey Jan 2005

Tribute To Dean Timothy J. Heinsz, A, Robert G. Bailey

Journal of Dispute Resolution

Timothy J. Heinsz, Earl F. Nelson Professor of Law, and Director for the Center for the Study of Dispute Resolution, received his undergraduate degree from St. Louis University and his law degree from Cornell University. He came to the University of Missouri-Columbia School of Law as an associate professor in 1979, and became a full professor in 1981. Between 1988 and 2001, he was dean of the law school. He became Director of the Center for the Study of Dispute Resolution in 2002. On July 2, 2004, Dean Heinsz had a heart attack while jogging on the MKT Trail near …

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Discord Behind The Table: The Internal Conflict Among Israeli Jews Concerning The Future Of Settlements In The West Bank And Gaza, Robert H. Mnookin, Ehud Eiran Jan 2005

Discord Behind The Table: The Internal Conflict Among Israeli Jews Concerning The Future Of Settlements In The West Bank And Gaza, Robert H. Mnookin, Ehud Eiran

Journal of Dispute Resolution

Our exclusive focus is on one of these conflicts-the profound internal rift among Israeli Jews over the Jewish settlements in the West Bank and Gaza. We are especially interested in the role of the national religious settlers and the Israeli government's response to them. These settlers lead the movement and are dominant actors in the internal conflict. The current controversies within Israel regarding Prime Minister Ariel Sharon's "unilateral initiative," which was not the product of a negotiation with Palestinians, demonstrate the importance of understanding the internal conflict within Israel and the dominant role of the leaders of the settlement movement

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Influence Of Procedural And Distributive Variables On Settlement Rates In Employment Discrimination Mediation, The, E. Patrick Mcdermott, Danny Ervin Jan 2005

Influence Of Procedural And Distributive Variables On Settlement Rates In Employment Discrimination Mediation, The, E. Patrick Mcdermott, Danny Ervin

Journal of Dispute Resolution

Mediators and scholars are interested in factors that contribute to a successful mediation. The settlement of the dispute is one measure of success. If one could identify certain key process or outcome variables that caused more disputes to be settled in mediation, a mediator could use this information to maximize settlement potential. We seek to add to this search for the "holy grail" of mediation settlement.' Using an extensive database from the evaluation of the Equal Employment Opportunity Commission (EEOC) we attempt to determine whether certain procedural and distributive factors are significant predictors of case resolution. We also examine whether …

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California's Unique Approach To Arbitration: Why This Road Less Traveled Will Make All The Difference On The Issue Of Preemption Under The Federal Arbitration Act, Michael G. Mcguiness, Adam J. Karr Jan 2005

California's Unique Approach To Arbitration: Why This Road Less Traveled Will Make All The Difference On The Issue Of Preemption Under The Federal Arbitration Act, Michael G. Mcguiness, Adam J. Karr

Journal of Dispute Resolution

We begin this article by framing the issue in simple terms. The statute itself is clear. The FAA contains a "savings clause" that provides that arbitration agreements shall be "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.", By its terms, the FAA permits courts to refuse to enforce arbitration agreements if the agreement is invalid under state laws that "arose to govern issues concerning the validity, revocability, and enforceability of contracts generally."

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If You Lose, It Is Binding, But If You Win - They Get A New Trial: Illinois Uninsured Motorist Arbitration, Michael J. Hanagan Jan 2005

If You Lose, It Is Binding, But If You Win - They Get A New Trial: Illinois Uninsured Motorist Arbitration, Michael J. Hanagan

Journal of Dispute Resolution

In Reed v. Farmers Insurance Group the Illinois Supreme Court-by a 4-3 vote-upheld an arbitration system in which injury victims are bound by awards below $20,000, but in which insurance companies can insist on a trial de novo for awards over that amount.' A recent legislative enactment has complicated the threshold at which awards change from binding to non-binding, by increasing it to $50,000. However, even in cases where a higher threshold applies, those injury victims receiving awards below the threshold (or losing on the issue of liability) are bound by the arbitration, while injury victims receiving awards higher than …

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Confidentiality In Mediation: Is It Encouraging Good Mediation Or Bad Conduct, Sarah Williams Jan 2005

Confidentiality In Mediation: Is It Encouraging Good Mediation Or Bad Conduct, Sarah Williams

Journal of Dispute Resolution

Mediation has long been used in the judicial system of the United States to offer an alternative to litigation which can save time and money. Not only have its cost-effective and time efficient attributes contributed to its use, but the judiciary and legislature have often encouraged its use in order to mitigate the number of cases in the court system. In some states, the legislature has enacted statutes to make mediation mandatory before certain adjudications will even take place. Furthermore, to encourage these mediations to settle, many legislatures and jurisdictions have enacted statutes to protect the confidentiality of the mediation. …

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Summary Of Jordan V. State, Dep’T Of Motor Vehicles, 121 Nev. Adv. Op. 7, Daria Snadowsky Jan 2005

Summary Of Jordan V. State, Dep’T Of Motor Vehicles, 121 Nev. Adv. Op. 7, Daria Snadowsky

Nevada Supreme Court Summaries

Jordan v. State rules on two separate appeals that address the same issue of first impression regarding guidelines Nevada state courts must follow in order to restrict court access to in proper person litigants with in forma pauperis status. This case also reconfirms the process by which in forma applications are reviewed. In the first case, respondent Officer Jimmie W. Jones arrested proper person appellant James Jacob Jordan for trespassing on state property2 after Jordan did not heed Officer Jones’s warning to leave the premises. After the trespass charge was dropped the following day, Jordan sued Officer Jones along with …

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Title Page Jan 2005

Title Page

Journal of Dispute Resolution

No abstract provided.

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Table Of Contents - Issue 2 Jan 2005

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.

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Horizontal Uniformity And Vertical Chaos: State Choice Of Law Clauses And Preemption Under The Federal Arbitration Act, Jennifer Trieshmann Jan 2005

Horizontal Uniformity And Vertical Chaos: State Choice Of Law Clauses And Preemption Under The Federal Arbitration Act, Jennifer Trieshmann

Journal of Dispute Resolution

Although the goal of arbitration is speedy and efficient resolution of disputes, these goals may be frustrated by judicial interpretation of choice of law provisions in commercial agreements. There is uncertainty as to the law that a court will apply in deciding a motion to stay or otherwise interfere with an arbitration. There is further uncertainty surrounding whether the law governing arbitration is the Federal Arbitration Act (FAA), the arbitration law of the state where the arbitration is taking place, or that of the state mentioned in a choice of law clause. The federal courts have adopted conflicting standards so …

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Resolving A Split: May Courts Order Consolidation Of Arbitration Proceedings Absent Express Agreement By The Parties, Jonathan R. Waldron Jan 2005

Resolving A Split: May Courts Order Consolidation Of Arbitration Proceedings Absent Express Agreement By The Parties, Jonathan R. Waldron

Journal of Dispute Resolution

In Illinois Farmers Insurance Co. v. Glass Service Co., 8 the Minnesota Supreme Court had the opportunity to revisit its 1973 decision in Grover-Dimond Associates v. American Arbitration Ass'n 9 in light of conflicting case law developed since that time.' 0 This Note will address the current split in state and federal courts, and suggest that the best way to resolve this issue is through state adoption of the RUAA.

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No Notice Is Good News: Notice Under The New Ombuds Standards For The Establishment And Operation Of Ombuds Offices , Katherine A. Welch Jan 2005

No Notice Is Good News: Notice Under The New Ombuds Standards For The Establishment And Operation Of Ombuds Offices , Katherine A. Welch

Journal of Dispute Resolution

The American Bar Association (ABA) recently announced its decision to endorse the revised Standards for the Establishment and Operation of Ombuds Offices, dated February 2004.1 A modification to the 2001 Standards for the Establishment and Operation of Ombuds Offices, 2 the new Standards are responsible for certain clarifications of the role of an ombuds. One such clarification is that of notice in the employment context. Under the new Standards, communications made to an ombuds regarding complaints of violations or unlawful practices within the workplace do not constitute notice to the employer, provided that the ombud's practices are consistent with the …

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Where Can Unconscionability Take Arbitration - Why The Fifth Circuit's Conscience Was Only Partially Shocked, Mary Jane Groff Jan 2005

Where Can Unconscionability Take Arbitration - Why The Fifth Circuit's Conscience Was Only Partially Shocked, Mary Jane Groff

Journal of Dispute Resolution

As a means of countering the pro-arbitration stance taken by the Supreme Court, a number of lower courts have chosen to police the fairness of arbitration clauses in contracts by using the doctrine of unconscionability. The Supreme Court has authorized the use of generally applicable contract law principles including unconscionability-to invalidate arbitration agreements. Unconscionability provides courts with a flexible tool for coming to the rescue of parties who, if the court is sufficiently shocked, find themselves entangled in unfair arbitration clauses. This Note addresses the Fifth Circuit's use of unconscionability in respect to a particularly one-sided arbitration clause, and examines …

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Dispute Resolution And Legal Education: A Bibliography, Trevor C. W. Farrow Jan 2005

Dispute Resolution And Legal Education: A Bibliography, Trevor C. W. Farrow

Articles & Book Chapters

No abstract provided.

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Look Before You Leap And Keep On Looking: Lessons From The Institutionalization Of Court-Connected Mediation, Bobbi Mcadoo, Nancy A. Welsh Jan 2005

Look Before You Leap And Keep On Looking: Lessons From The Institutionalization Of Court-Connected Mediation, Bobbi Mcadoo, Nancy A. Welsh

Faculty Scholarship

This article will use the institutionalization of general civil mediation into the courts as a case study, with both hopeful and cautionary lessons for policy makers. This article will (1) examine the goals created for court-connected ADR; (2) assess to what extent court-connected mediation has achieved these goals, from the perspective of judges, lawyers, and parties; and (3) and propose reforms of court-connected mediation to better ensure the achievement of justice.

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Let's Stick Together (And Break With The Past): The Use Of Economic Analysis In Wto Dispute Litigation, Petros C. Mavroidis Jan 2005

Let's Stick Together (And Break With The Past): The Use Of Economic Analysis In Wto Dispute Litigation, Petros C. Mavroidis

Faculty Scholarship

The treatment of a number of issues that are being routinely discussed in WTO dispute settlement practice could benefit substantially, were economists to be institutionally implicated in the process. As things stand, the participation of economists in dispute settlement proceedings is infrequent and erratic: for all practical purposes, it depends on the discretion of WTO adjudicating bodies. There is indirect evidence that recourse to such expertise has been made, albeit on very few occasions. Institutional reforms are necessary; otherwise, it seems unlikely that the existing picture will change in the near future. A look into ongoing negotiations on the DSU …

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The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble": A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N.C. Smalkin Jan 2005

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble": A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N.C. Smalkin

All Faculty Scholarship

Recently, a respected jurist has lamented the declining number of federal jury trials. Chief Judge William Young of the United States District Court for the District of Massachusetts, writing in the Federal Lawyer, pointed out that jury trials in federal civil cases declined 26% in the decade between 1989 and 1999, which he attributed to four factors: the district court judiciary's loss of focus on the core function of trying jury cases; the business community's loss of interest in jury adjudication (opting out of the legal system altogether in favor of arbitration); Congress's marginalizing the district court judiciary; and the …

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Restitution, Tiong Min Yeo Jan 2005

Restitution, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

Little of significance was decided on the law of restitution in 2004. There was nevertheless a smattering of cases dealing with points relevant to the principles of the law of restitution, sometimes directly, and sometimes indirectly.

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Regional Economic Arrangements And The Rule Of Law In The Americas: The Human Rights Face Of Free Trade Agreements, Stephen Powell Dec 2004

Regional Economic Arrangements And The Rule Of Law In The Americas: The Human Rights Face Of Free Trade Agreements, Stephen Powell

Stephen Joseph Powell

In past studies, we explored the more visible and controversial linkages between international trade law and non-trade issues that span a broad range of vital interests we may collectively describe as human rights law. We have addressed the widespread criticism that international trade rules are insensitive to basic human rights and that globalization has done little with its enormous power to preserve exhaustible natural resources and otherwise promote sustainable development, to alleviate the gap between rich and poor, to encourage states to grant their citizens basic human rights contained in U.N. treaties, to resolve the often conflicting policies underlying essential …

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Svensk Domstols Behörighet Vid Gränsöverskridande Varumärkestvister – Särskilt Om Internetrelaterade Intrång [Jurisdiction In Cases Of Cross-Border Trademark Infringements], Ulf Maunsbach Dec 2004

Svensk Domstols Behörighet Vid Gränsöverskridande Varumärkestvister – Särskilt Om Internetrelaterade Intrång [Jurisdiction In Cases Of Cross-Border Trademark Infringements], Ulf Maunsbach

Ulf Maunsbach

No abstract provided.

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The Discourse Beneath: Emotional Epistemology In Legal Deliberation And Negotiation, Erin Ryan Dec 2004

The Discourse Beneath: Emotional Epistemology In Legal Deliberation And Negotiation, Erin Ryan

Erin Ryan

All lawyers negotiate, and all negotiators deliberate. This article addresses the pervasive but unrefined use of emotional insight by deliberating and negotiating lawyers, and suggests that legal education could improve lawyering by adopting a fuller model of legal thinking that takes account of this “epistemological emotionality.” In forming the beliefs that underlie choices made during deliberation and negotiation, people rely on insights informed by past and present emotional experience. Such epistemological emotional input fuels a pre-linguistic, quasi-inductive reasoning process that enables us to draw on stored information about emotional phenomena to hypothesize about motives, behavior, and potential consequences. As deliberation …

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