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Full-Text Articles in Law

Crystals, Mud, Bapcpa, And The Structure Of Bankruptcy Decisionmaking, R. Wilson Freyermuth Oct 2006

Crystals, Mud, Bapcpa, And The Structure Of Bankruptcy Decisionmaking, R. Wilson Freyermuth

Faculty Publications

A critical feature of any legal system is its formal dispute resolution mechanism. From the perspective of a transactions lawyer, the dispute resolution process should be structured to accomplish (or at least contribute positively toward) doctrinal clarity.


Adding Judicial Mediation To The Debate About Judges Attempting To Settle Cases Assigned To Them For Trial, Peter Robinson Jul 2006

Adding Judicial Mediation To The Debate About Judges Attempting To Settle Cases Assigned To Them For Trial, Peter Robinson

Journal of Dispute Resolution

The article then explores the ramifications of the Uniform Mediation Act's express inapplicability of its confidentiality provisions to a mediation "conducted by a judge who might make a ruling on the case." Finally, the article suggests how the advent of judicial mediation might lead to standards of practice that would clarify the law and resolve the debate about judges conducting either settlement conferences or mediations for cases assigned to them for trial.


How Can A Mediator Be Both Impartial And Fair: Why Ethical Standards Of Conduct Create Chaos For Mediators, Susan Nauss Exon Jul 2006

How Can A Mediator Be Both Impartial And Fair: Why Ethical Standards Of Conduct Create Chaos For Mediators, Susan Nauss Exon

Journal of Dispute Resolution

This article focuses on newly developing Standards designed to regulate the mediation industry with respect to civil disputes. The particular focus is on the mediator's requirements of neutrality and impartiality and whether these requirements are impacted by assurances of a fair result and other fairness concepts such as a balanced process and informed decision making. The basic problem is that mediators are guided by Standards and stand-alone definitions of mediation, yet many Standards contain contradictory or vague provisions. Furthermore, the mediator's actual role may be dictated by her own personal style, values, and commercial needs in conjunction with the parties' …


Thou Shalt Love Thy Neighbor: Rluipa And The Mediation Of Religious Land Use Disputes, Jeffrey H. Goldfien Jul 2006

Thou Shalt Love Thy Neighbor: Rluipa And The Mediation Of Religious Land Use Disputes, Jeffrey H. Goldfien

Journal of Dispute Resolution

The question addressed in this article is whether existing systems for processing religious land use claims are well-suited to the task. The conclusion is that they are not, and that local officials and others involved in religious land use disputes ought to consider employing mediation at an early stage. The main virtue of mediation in this context is the opportunity it provides for disputants to meet face-to-face in an effort to understand the views of others, even if they do not agree with them. Facilitated dialogues among persons with differing perspectives is precisely what is missing from the traditional systems …


New Judicial Hostility To Arbitration: Federal Preemption, Contract Unconscionability, And Agreements To Arbitrate, The, Steven J. Burton Jul 2006

New Judicial Hostility To Arbitration: Federal Preemption, Contract Unconscionability, And Agreements To Arbitrate, The, Steven J. Burton

Journal of Dispute Resolution

Part I of this Article sketches the basics of arbitration law and practice, and traces the development of the federal policy favoring arbitration, to establish a basis for evaluating contemporary judicial decisions. Part II examines the justification for the policy favoring arbitration and the reasons contracting parties may prefer arbitration. Part III evaluates the reasons courts give for finding arbitration agreements in employment and consumer contexts unconscionable, and therefore, unenforceable. The conclusion is that many courts make many clearly erroneous decisions, including decisions that are unconstitutional because they are preempted.


Working With Len, James E. Westbrook Jul 2006

Working With Len, James E. Westbrook

Journal of Dispute Resolution

Len Riskin joined the MU faculty in 1984. Our faculty had voted in response to a recommendation of Dean Dale Whitman to begin a new emphasis on alternative dispute resolution. My recollection is that we had a group of very capable teachers with a traditional bent. On the other hand, they had an open mind about trying something new and they got along with each other very well. The kind of faculty we had and the leadership provided by Len, Dale Whitman and a few faculty members such as Tim Heinsz enabled us to do something that surprised a lot …


Reflections On A Mindful Giant: A Tribute To Len Riskin, Margaret Shaw Jul 2006

Reflections On A Mindful Giant: A Tribute To Len Riskin, Margaret Shaw

Journal of Dispute Resolution

Len Riskin is a man who is usually associated with raisins. This is because he is known for getting you to close your eyes and picture grapes growing on a vine somewhere in South America and after a really, really long time and a really, really long trip for those grapes, you get to take a miniscule bite out of the raisin you have been holding that gradually has become the focus of all of your attention.


After Basic Mindfulness Mediation: External Mindfulness, Emotional Truthfulness, And Lie Detection In Dispute Resolution, Clark Freshman Jul 2006

After Basic Mindfulness Mediation: External Mindfulness, Emotional Truthfulness, And Lie Detection In Dispute Resolution, Clark Freshman

Journal of Dispute Resolution

Some years ago, our mutual friend, Carrie Menkel-Meadow, suggested Len Riskin and I talk about our shared interest in mindfulness meditation and negotiation. At the time, I had students sit quietly, eyes closed, get in touch with what was going on before a negotiation, write it out, and then crumple up the paper. It was a primitive form of meditation and journaling and, as I look back through research, not a very sound theoretical or empirically-supported way to help.' Eventually, mindfulness meditation and practices helped move me from my very primitive attempts at mindfulness to a very rich practice that …


Resolving Conflict Together: The Understanding-Based Model Of Mediation, Gary Friedman, Jack Himmelstein Jul 2006

Resolving Conflict Together: The Understanding-Based Model Of Mediation, Gary Friedman, Jack Himmelstein

Journal of Dispute Resolution

The following excerpt is from a book in progress-tentatively titled, Resolving Conflict Together: The Understanding-Based Model of Mediation-that is planned to be published in 2007 by the American Bar Association. In this book, we seek to set out the approach to mediation that we have been developing through our work with the Center for Mediation in Law (the Center). We have termed this approach the "Understanding-Based Model" of mediation. The book develops twelve mediation cases, in which Gary served as mediator and which, with commentary, serve to transmit our approach to mediation. Each case focuses on a different aspect of …


State Legislative Update, Melissa Blair, Michael Benton, Jessica Gunder, David Lefevre Jul 2006

State Legislative Update, Melissa Blair, Michael Benton, Jessica Gunder, David Lefevre

Journal of Dispute Resolution

As of December 1, 2006, twenty-eight states have enacted some type of right to cure legislation. On April, 28, 2006, Georgia, one of the twenty-eight, amended its construction defect dispute resolution procedures to clarify the responsibilities of the parties. Pennsylvania attempted to become the twenty-ninth, the bill having passed both houses of the legislature, but the Governor vetoed the bill on March 17. Right to cure legislation was considered in South Dakota, but it was deferred to the 36th Legislative Day on February 8, 2006.


Mediator As Peacemaker: The Case For Activist Transformative-Narrative Mediation, Christopher Harper Jul 2006

Mediator As Peacemaker: The Case For Activist Transformative-Narrative Mediation, Christopher Harper

Journal of Dispute Resolution

This article proposes an approach to mediation encompassing aspects of both of these takes on mediation, something one might loosely think of as "activist transformative-narrative mediation." Essentially, this approach assumes the aspirations and ideology of Professor Gunning's "activist" take on transformative mediation and achieves those aspirations using techniques from narrative mediation. By employing this approach, mediators can actively assist parties to identify and achieve reconciliation, peace, and justice.


Faa Preemption By Choice-Of-Law Provisions: Enforceable Or Unenforceable, Ross Ball Jul 2006

Faa Preemption By Choice-Of-Law Provisions: Enforceable Or Unenforceable, Ross Ball

Journal of Dispute Resolution

Generally, choice-of-law provisions allow corporations that do business in several states or countries to draft their agreements and conduct their business in accordance with the law they choose. When the choice-of-law provision is contained in a contract that does not have an agreement to arbitrate, courts generally have no qualms about enforcing them. However, when the contract does contain an agreement to arbitrate, courts are reluctant to enforce the choice-of-law provision as to the arbitration agreement because the Federal Arbitration Act (FAA) governs arbitration agreements. This issue has been the source of much confusion and litigation in the field of …


Courts Have The Final Say: Does The Doctrine Of Manifest Disregard Promote Lawful Arbitral Awards Or Disguise Unlawful Judicial Review, Lindsay Biesterfeld Jul 2006

Courts Have The Final Say: Does The Doctrine Of Manifest Disregard Promote Lawful Arbitral Awards Or Disguise Unlawful Judicial Review, Lindsay Biesterfeld

Journal of Dispute Resolution

In exchange for a speedy, economical dispute resolution process, parties that submit to binding arbitration assume the risk that an arbitrator might misapply the law. United States Supreme Court precedent and federal law favor agreements to arbitrate by limiting judicial review of arbitral awards and requiring courts to "rigorously enforce arbitration agreements." These judicial constraints support the arbitral goals of efficiency and finality by reducing the risk that arbitral awards will be vacated on appeal. To balance the risk that arbitrators may abuse this standard of review, courts have supplemented restricted judicial review with a doctrine that allows an arbitral …


No Do-Overs For Parties Who Agree To Limit Review Of An Arbitrator's Decision, Patrick Gill Jul 2006

No Do-Overs For Parties Who Agree To Limit Review Of An Arbitrator's Decision, Patrick Gill

Journal of Dispute Resolution

Under the FAA, review of arbitration awards is limited to specific circumstances. However, in many instances, these default rules can be modified by contractual provisions including increasing or decreasing the level of review of arbitration awards. Although a broader scope of review is contrary to the main purposes of arbitration, courts have held that a contractual provision expanding judicial review is permissible. Furthermore, in some limited circumstances, courts have held that a contractual limitation on judicial review is permitted by the FAA where the restriction is clearly manifested in the contract and the process will not become unfair as a …


Closing The Door, But Opening A Window: The Supreme Court's Reaffirmation Of Applying The Federal Arbitration Act To The States, Caroline Kornelis Jul 2006

Closing The Door, But Opening A Window: The Supreme Court's Reaffirmation Of Applying The Federal Arbitration Act To The States, Caroline Kornelis

Journal of Dispute Resolution

The instant case reinforces two key Supreme Court cases regarding the enforcement of arbitration agreements, and the requirement that when parties disagree about the validity of a contract which contains an arbitration clause, the dispute should go directly to an arbitrator, and not be determined by a court. While this case adds no new law to the arbitration landscape per se, it does reaffirm the Supreme Court's, as well as Congress's, firm stance on promoting arbitration. At first glance, the opinion seems to be a cut and dry reaffirmation of principles that have been present in Unites States Supreme Court …


Modernizing Security In Rents: The New Uniform Assignment Of Rents Act, R. Wilson Freyermuth Jan 2006

Modernizing Security In Rents: The New Uniform Assignment Of Rents Act, R. Wilson Freyermuth

Faculty Publications

This article explains the provisions of the UARA and encourages its prompt adoption in states that presently lack comprehensive statutes governing security interests in rents.


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 Jan 2006

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.


The Democratic Legitimacy Of Government-Related Dispute Resolution, Richard C. Reuben Jan 2006

The Democratic Legitimacy Of Government-Related Dispute Resolution, Richard C. Reuben

Faculty Publications

The elective branches get most of the attention when we think about democracy. But it's important to remember that one of the things that a democratic government provides is a number of structures by which disputes may be resolved peacefully. Indeed, voting itself is one way of resolving conflict at a societal level. In the United States, courts historically have been the starting point for the resolution of individual, and sometimes social, disputes. Courts would seem to exude a great deal of democratic legitimacy, but why, and under what conditions? And what about other methods of dispute resolution: How do …


Untangling The Privacy Paradox In Arbitration, Amy J. Schmitz Jan 2006

Untangling The Privacy Paradox In Arbitration, Amy J. Schmitz

Faculty Publications

Arbitration is private but not secret. This truism regarding arbitration seems contradictory and nonsensical. However, common understandings of privacy in arbitration often lull individuals into assuming personal information revealed in arbitration may not become public. They assume privacy and confidentiality are synonymous. The reality is that arbitration is private but not necessarily confidential, or secret. This is the privacy paradox: it defies common conceptions of arbitration's secrecy, but is nonetheless true. This paradox is problematic because it leads to shortsighted contracting and simplistic assumptions about arbitral justice. Moreover, it may foster injustice when repeat players unduly benefit from unpublished awards …


Title Page Jan 2006

Title Page

Journal of Dispute Resolution

No abstract provided.


Table Of Contents - Issue 1 Jan 2006

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.


Table Of Contents - Issue 2 Jan 2006

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.


Introduction To Vanishing Trial Symposium, John Lande Jan 2006

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.


World Without Trials, A, Marc Galanter Jan 2006

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 …


What We Know And What We Should Know About American Trial Trends, Margo Schlanger Jan 2006

What We Know And What We Should Know About American Trial Trends, Margo Schlanger

Journal of Dispute Resolution

This brief essay first summarizes some of that knowledge-in particular, the chief features we know about the shrinking civil trial docket in federal district courts. Next, it proposes four areas of future investigation necessary to understand the contours of the trend and to assess its causes. Then, I bring together the causal hypotheses that have already been proposed, none of which has yet been securely tested. Finally, in an appended bibliography, I list data sources, reports, and scholarly analyses that will be useful to those doing future work.


Vanishing Trials: An English Perspective, Robert Dingwall, Emilie Cloatre Jan 2006

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 …


Vanishing Or Increasing Trials In The Netherlands, Carolien Klein Haarhuis, Bert Niemeijer Jan 2006

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 Jan 2006

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.


Not Quite A World Without Trials: Why International Dispute Resolution Is Increasingly Judicialized, Andrea Kupfer Schneider Jan 2006

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 …


When We Hold No Truths To Be Self-Evident: Truth, Belief, Trust, And The Decline In Trials, Lisa Blomgren Bingham Jan 2006

When We Hold No Truths To Be Self-Evident: Truth, Belief, Trust, And The Decline In Trials, Lisa Blomgren Bingham

Journal of Dispute Resolution

This article will explore the relationship between the "vanishing trial" and the changing ways in which we think about truth. First, it briefly overviews how we think about knowing what is true: epistemology and this history of philosophy. Second, it looks to the philosophy of science and history of social science for new theories and methods about how we ascertain and construct meaning and what we believe to be real and true. Third, it examines our changing relation to information in the face of the "information explosion": information is the evidence upon which we reach a conclusion about what is …