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Journal of Dispute Resolution

No abstract provided.

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.

Introduction To Vanishing Trial Symposium, John Lande

Journal of Dispute Resolution

This symposium in the Journal of Dispute Resolution takes the next step. It includes some analysis of trial court phenomena in the U.S. and expands the focus with greater emphasis on (1) investigation of trial trends outside U.S. courts, (2) explanations of the causes of changing trial patterns, (3) speculations about possible effects of changing litigation patterns, and (4) recommendations to improve the operation of the legal system.

Vanishing Trials: An English Perspective, Robert Dingwall, Emilie Cloatre

Journal of Dispute Resolution

This paper reviews the recent history of civil litigation in England and Wales. While previous work by Professor Kritzer has shown an absolute decline in trials over the last fifty years, with some fluctuation around this trend, this comment suggests that this may now have bottomed out. Given the evidence of a simultaneous, and continuing, decline in the number of claims filed, it may even be the case that trials are, at least temporarily, playing a larger part in the civil justice system than they have for many years. In contrast to the experience in the U.S., these changes seem …

Not Quite A World Without Trials: Why International Dispute Resolution Is Increasingly Judicialized, Andrea Kupfer Schneider

Journal of Dispute Resolution

The focus of this brief essay is to first outline some of the factors leading to increasing judicialization on the international level where public disputes (disputes between countries) are increasingly resolved by a neutral third party. In some cases, this increased judicialization includes arbitration (which we might put under the category of ADR in the U.S.). However, the use of arbitration at the international level is not ADR as we would define it in the U.S., since the important element at the international level is that the decision-making power is handed over to a third party-whether we call that a …

Designer Trials, Elizabeth Thornburg

Journal of Dispute Resolution

This article is a thought experiment, or maybe a nightmare, about the intersection of freedom of contract and the trials that have not vanished. Could contracting parties effectively agree in advance of a dispute that any litigation of the case will comply with certain rules? Would such an agreement be enforced even in a contract of adhesion? If so, parties with sufficient bargaining leverage could design away many of the characteristics of litigation that they find unappealing without the need to resort to private processes. The result: a designer trial with the procedural deck stacked in favor of the party …

Reconciling Professional Legal Education With The Evolving (Trial-Less) Reality Of Legal Practice, Julie Macfarlane, John Manwaring

Journal of Dispute Resolution

Our focus in this paper is the impact of these trends on legal education, especially professional legal education. What is undeniable is that lawyers (and judges) are more and more involved in legal tasks which are not related to trials. This does not necessarily mean that the practice of law is focused exclusively on settlement activities, although such activities are increasingly important. Pre-trial processes and procedures including motions, discovery and mandatory settlement conferences take up more time than ever before. Lawyers are playing a different role, offering different kinds of service to their clients, and performing different tasks

Parties To International Commercial Arbitration Agreements Beware: Bankruptcy Trumps Supreme Court Precedent Favoring Arbitration Of International Disputes, Lindsay Biesterfeld

Journal of Dispute Resolution

Phillips v. Congelton (In re White Mountain Mining Co.), presents a heightened version of the conflict between the general policy favoring enforcement of arbitration agreements and the policy favoring resolution of bankruptcy-related claims in the bankruptcy court proceedings as the case involves a dispute over the enforcement of an international agreement to arbitrate a claim that is a "core" bankruptcy proceeding. In Phillips, the Fourth Circuit analyzed the underlying purposes of both the bankruptcy code and the federal arbitration statutes, and resolved the conflicting purposes of the two by giving greater deference to the policy favoring resolution of bankruptcy-related claims …

Aggregation On The Couch: The Strategic Uses Of Ambiguity And Hypocrisy, Stephen B. Burbank

All Faculty Scholarship

In this Essay, Professor Burbank comments on the essays by Professors Nagareda and Issacharoff. Welcoming the opportunity to revisit the interplay between procedure and substantive law and the question of democratic accountability that Professor Nagareda’s essay presents, Professor Burbank concludes that the parts of that essay are greater than the whole. He finds that Professor Nagareda’s pursuit of unifying themes and a general normative theory leads to inconsistencies in classification between procedure and substance and to an impoverished vision of institutional legitimacy. Professor Burbank voices concern that this quest, which is also evident in the current draft of the American …

No Longer Just Company Men: The Flexible Workforce And Employment Discrimination, Review Essay On 'From Widgets To Digits Employment Regulation For The Changing Workplace', By Katherine V.W. Stone (2004), Miriam A. Cherry

All Faculty Scholarship

In her new book, From Widgets to Digits, Professor Katherine V.W. Stone reviews and analyzes the dramatic changes, both technological and demographic, that have transformed work in America during the last thirty years. The book broadly documents the shift from an economy that primarily relies on the production and consumption of goods to one in which learning and the transmittal of knowledge is central to the creation of wealth. Professor Stone describes how in the past, workers may have expected job security and long-term employment, but that recent economic, social, and technological change have led to a more temporary and …

Improving The Construction And Litigation Resolution Process: The 2005 Amendments To The Washington Condominium Act Are A Win-Win For Homeowners And Developers, Mark F. O'Donnell, David E. Chawes

Seattle University Law Review

On August 1, 2005, significant amendments to the Washington Condominium Act (WCA) became effective. These amendments were intended to substantially reduce water infiltration in multiunit residential buildings and to simplify the condominium construction dispute resolution process. The heart of the amendments is the implementation of alternative dispute resolution (ADR) procedures, as well as fee-shiftingprovisions which require the non-prevailing party to pay the attorney fees and costs of the prevailing party. A decade of lawsuits brought under the WCA by condominium owners associations against builders and developers, and in turn by builders against subcontractors, alleging defects in the ability of the …

World Without Trials, A, Marc Galanter

Journal of Dispute Resolution

Imagine some friendly visitors to America-from Europe or Asia or even from Mars-who are seeking to comprehend the American legal system. Our Martian visitors would have seen A Civil Action and The Runaway Jury at the Red Canal multiplex and surely they have seen syndicated episodes of the ubiquitous Law and Order. Upon arrival they turn on the TV news in their hotel room and scan the newspaper slipped under the door and find both saturated with accounts of square-jawed wife murderers, egomaniacal corporate executives, and freakish entertainers on trial. Unsurprisingly, our visitors readily conclude that the trial is the …

Vanishing Or Increasing Trials In The Netherlands, Carolien Klein Haarhuis, Bert Niemeijer

Journal of Dispute Resolution

In this article, we will address the question of whether something like vanishing trials exists in the Netherlands. This could be the case, as some of the causes of the decline in the number of trials advanced by Galanter are also observed in the Netherlands. ADR is gaining popularity, the costs of court procedures are on the rise, and there clearly exists a development toward "managerial justice."

Worlds In A Small Room, Christopher Honeyman

Journal of Dispute Resolution

In the lead article of this symposium, Marc Galanter points out that steeply declining trial rates hold true across a variety of trial genres, including state and federal courts, criminal and civil matters, and even federal administrative agencies' own trial equivalents. This brief essay will explore a new setting in which to examine Galanter's thesis.

Public Access To Information In Civil Litigation Vs. Litigant's Demand For Privacy: Is The Vanishing Trial An Avoidable Consequence, Dennis J. Drasco

Journal of Dispute Resolution

Recently, the legal and academic communities have been studying the phenomenon of the "vanishing trial." The phenomenon is an observation of the fact that the American court system is experiencing a trend of shrinking trial dockets. At least one scholar has partially attributed the decline in trials to the value placed upon settlement rather than adjudication within our justice system. Those competing values have spawned a debate regarding the secrecy and confidentiality characteristic of settlements versus public access to information in civil litigation. Jurisdictions that have addressed the issue have noted the complexities involved in regard to the factors to …

Vanishing Trial, Vanishing Community - The Potential Effect Of The Vanishing Trial On America's Social Capital, Robert M. Ackerman

Journal of Dispute Resolution

This essay considers the communitarian implications of the vanishing trial phenomenon. Its language is tentative, because while we now have-thanks to Marc Galanter and his associates-a great deal of useful data on the vanishing trial, we have only some hints regarding its causes, and an even less concrete notion of its likely consequences.' The empirical data unearthed by Professor Galanter and others has debunked a number of myths regarding the litigiousness of our society and the extent to which the courts are employed to resolve disputes. Given the care that has been invested in this research, it would be reckless …

How Much Justice Can We Afford: Defining The Courts' Roles And Deciding The Appropriate Number Of Trials, Settlement Signals, And Other Elements Needed To Administer Justice, John Lande

Journal of Dispute Resolution

This article discusses how the court system can function optimally given declining trial rates and the limited resources available. It does not provide a detailed analysis of court financing but rather discusses broad issues relating to the role of trials in the legal system.

Whose Finding Is It Anyway: The Division Of Labor Between Courts And Arbitrators With Respect To Waiver, David Lefevre

Journal of Dispute Resolution

Given the emphasis with which the Supreme Court has made clear its policy favoring arbitration, it is not surprising that some courts may have reacted by divesting themselves of a "gateway issue" long decided by courts. Traditionally, courts have determined whether a party has acted inconsistently with its right to arbitration, thereby waiving it, but a few courts found that the question is properly before an arbitrator. Recently, the First Circuit Court of Appeals in Marie v. Allied Home Mortgage Corporation2 established a framework through which the federal circuits may begin to close the potential split of authority regarding waiver …

Privatizing Our Public Civil Justice System, Trevor C. W. Farrow

Articles & Book Chapters

No abstract provided.

The Procedural Soft Law Of International Arbitration, William W. Park

Faculty Scholarship

The conference organizers set me the daunting task of exploring arbitration's “non-national instruments,” which is to say the guidelines of professional groups and non-governmental organizations related to evidence, conflicts of interest, ethics and the organization of arbitral proceedings. Frequently these procedural standards build on the lore of international dispute resolution as memorialized in articles, treatises and learned symposium papers. These guidelines represent what might be called “soft law,” in distinction to the harder norms imposed by arbitration statutes and treaties, as well as the procedural framework adopted by the parties through choice of pre-established arbitration rules.

The growth of procedural …

Demand For A Jury Trial And The Selection Of Cases For Trial, Joni Hersch

Vanderbilt Law School Faculty Publications

This paper uses a unique data set to examine how parties in civil litigation choose whether to demand a jury trial or to waive this right and whether trial forum influences the probability of trial versus settlement. Plaintiffs are more likely to demand trial by jury when juries are relativety more favorable to plaintiffs in similar cases and jury trials are relatively less costly than bench trials. Cases in which jury trials are demanded are 5.5 percentage points more ikely to settle without a trial than cases in which jury trials are waived. This differential settlement rate by potential trial …

Commercial Arbitration In The Islamic Middle East, Art Gemmell Dr.

art gemmell

As any observer of the international commercial scene will attest, globalization has spawned an untold number of daily international business transactions. From these transactions, disputes arose and states worried that their domestic court system would be unable to deal with foreign commercial disputes expeditiously and equitably. In order to both address these concerns and to promote the use of international arbitration, a host of international and regional conventions was established to deal with the peaceful settlement of disputes. The Islamic Middle East has not fully embraced what might be euphemistically referred to as a“modern” arbitral system.

Internationalization In College Sports: Issues In Recruiting, Amateurism, And Scope, Maureen A. Weston Prof.

Maureen A Weston

This article examines the impact of international student-athletes ("ISAs") participating in intercollegiate athletics in the United States. Particularly in certain collegiate sports, the predominance, and frankly, the competitive success of ISAs-both men and women-is gaining the attention, and, in some cases, the concern, of college coaches, players, parents of junior players, member institutions, fans, and commentators. A primary concern is whether many of the ISAs, coming from varied education and athletic programs, are properly evaluated in meeting the academic and amateur eligibility standards set by the National Collegiate Athletic Association (NCAA). Many ISAs are also on athletic scholarships, and, as …