Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 25 of 25

Full-Text Articles in Law

The Flight From Arbitration: An Empirical Study Of Ex Ante Arbitration Clauses In Publicly-Held Companies’ Contracts, Theodore Eisenberg, Geoffrey Miller Oct 2006

The Flight From Arbitration: An Empirical Study Of Ex Ante Arbitration Clauses In Publicly-Held Companies’ Contracts, Theodore Eisenberg, Geoffrey Miller

ExpressO

We study a data set of 2,858 contracts contained as exhibits in Form 8-K filings by reporting corporations over a six month period in 2002 for twelve types of contracts and a seven month period in 2002 for merger contracts. Because 8-K filings are required only for material events, these contracts likely are carefully negotiated by sophisticated parties who are well-informed about the contract terms. These contracts, therefore, provide evidence of efficient ex ante solutions to contracting problems. The vast majority of contracts did not require arbitration. Only about 11 percent of the contracts included binding arbitration clauses. The ...


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.


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 ...


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 ...


Final Offer Arbitration In The New Era Of Major League Baseball, Spencer B. Gordon May 2006

Final Offer Arbitration In The New Era Of Major League Baseball, Spencer B. Gordon

ExpressO

This article provides a comprehensive analysis of the economic, athletic, and social impact of final offer salary arbitration in Major League Baseball (“MLB”). The article delves into the motivations, fluctuations, and evolution of the player-owner relationship and free agency. The commentary then focuses on the distinguishing features and intricacies of final offer arbitration. Although salary arbitration in the context of Major League Baseball is a topic oft discussed in the law review setting, the analysis rarely reaches the level exhibited in this article. Moreover, most articles on the subject were written between 1996 and 2000 when the 1994 players’ strike ...


The Lack Of Dissent In Wto Dispute Settlement: Is There A “Unanimity” Problem?, Meredith Kolsky Lewis Apr 2006

The Lack Of Dissent In Wto Dispute Settlement: Is There A “Unanimity” Problem?, Meredith Kolsky Lewis

ExpressO

This article is the first piece of scholarship to analyze in detail the fact that there has been almost no dissent in World Trade Organization (WTO) dispute settlement reports. The article first examines the empirical data with respect to dissenting and concurring opinions at both the panel and Appellate Body levels. Fewer than five percent of panel reports and two percent of Appellate Body reports contain separate opinions of any kind. It second shows that the WTO is in fact actively discouraging dissents, and discusses why this might be the case. The article argues that dissents are valuable in general ...


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

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

ExpressO

Religious land use disputes are characterized by high levels of conflict and the potential to seriously undermine social capital in affected communities. Contemporary land use procedures reflect an antiquated heritage and reliance upon adversarial means that are inadequate to successfully resolve these socially complex local conflicts. While there are practical obstacles, mediation holds advantages over these existing procedures in terms of dispute resolution, and has greater potential to preserve and build social capital at the local level. This article examines the theoretical justification for mediation in this context, and argues for moving beyond the status quo.


Arbitration Costs And Contingent Fee Contracts, Christopher R. Drahozal Apr 2006

Arbitration Costs And Contingent Fee Contracts, Christopher R. Drahozal

Vanderbilt Law Review

A common criticism of arbitration is that its upfront costs (arbitrators' fees and administrative costs) may preclude consumers and employees from asserting their claims. Some commentators have argued further that arbitration costs undercut the benefits to consumers and employees of contingent fee contracts, which permit the claimants to defer payment of attorneys' fees and litigation expenses until they prevail in the case (and if they do not prevail, avoid such costs altogether). This paper argues that this criticism has it exactly backwards. Rather than arbitration costs interfering with the workings of contingent fee contracts, the contingent fee mechanism provides a ...


Los Principios Generales Del Derecho Probatorio Y El Proceso Civil, Dr Leonardo J. Raznovich Jan 2006

Los Principios Generales Del Derecho Probatorio Y El Proceso Civil, Dr Leonardo J. Raznovich

Dr Leonardo J Raznovich

This article, written and published for a Spanish speaking audience, provides with a critical comparative overview of the principles of civil procedure and of the law of evidence.


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 ...


Confidentiality In Arbitration: Beyond The Myth, Richard C. Reuben Jan 2006

Confidentiality In Arbitration: Beyond The Myth, Richard C. Reuben

Faculty Publications

Many people assume that arbitration is private and confidential. But is that assumption accurate? This article is the first to explore that question in the important context of whether arbitration communications can be discovered and admitted into evidence in other legal proceedings - a question that is just beginning to show up in the cases. It first surveys the federal and state statutory and case law, finding that arbitration communications in fact are generally discoverable and admissible. It then considers the normative desirability of discovering and admitting arbitration communications evidence, concluding that the free discovery and admissibility of arbitration communications would ...


Introduction To Vanishing Trial Symposium, John M. Lande Jan 2006

Introduction To Vanishing Trial Symposium, John M. Lande

Faculty Publications

This symposium shows that "vanishing trial" phenomena touch an extremely broad range of issues including transformations of society, courts, dispute resolution procedures, and even the nature of knowledge. These phenomena relate to decisions by litigants in particular cases, court systems, national policy, and international relations. This subject is too large and complex for any symposium to analyze fully, especially at this early stage of analysis. This symposium makes an important contribution to this study, with theories and evidence about the existence, nature, and extent of reductions in trials and similar proceedings. It elaborates a range of theories about possible causes ...


Transformed, Not Transcended: The Role Of Extrajudicial Dispute Resolution In Antebellum Kentucky And New Jersey, Carli N. Conklin Jan 2006

Transformed, Not Transcended: The Role Of Extrajudicial Dispute Resolution In Antebellum Kentucky And New Jersey, Carli N. Conklin

Faculty Publications

The purpose of this paper is to explore the applicability of that conclusion to two states not studied by Horwitz: Kentucky and New Jersey. The study of Kentucky, a state that was largely agricultural in the antebellum period, will provide a case study for the argument that the destruction of arbitration in antebellum America was mainly due to a merchant-lawyer alliance.


Research-Informed Models For Communicating The Value Of Court-Connected Alternative Dispute Resolution For Public Funding, Kevin Dye Jan 2006

Research-Informed Models For Communicating The Value Of Court-Connected Alternative Dispute Resolution For Public Funding, Kevin Dye

Massachusetts Office of Public Collaboration Publications

The purpose of framing the research in the following models is to assist the court and its court-connected mediation programs in their ongoing dialogue with the funding decision-makers in addressing the question: Is state funding of community mediation centers and court ADR generally a worthwhile investment? As a means of setting forth components of an analytic framework, the following simplified financial models are offered to draw out salient aspects of the nature of the investment. The simplified models are employed primarily for the purpose of illustrating the investment in terms of classic financial models familiar to a budget analyst. These ...


Demand For A Jury Trial And The Selection Of Cases For Trial, Joni Hersch Jan 2006

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 ...


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.


Enforcement Of Arbitral Awards Against Foreign States Or State Agencies, S. I. Strong Jan 2006

Enforcement Of Arbitral Awards Against Foreign States Or State Agencies, S. I. Strong

Faculty Publications

Britain's Lord Denning once said that “as a moth is drawn to the light, so is a litigant drawn to the United States.” Certainly, as a pro-arbitration state and a signatory to various international conventions concerning the enforcement of foreign arbitral awards, the United States seems a natural place to bring an action to enforce an arbitral award against a foreign state or state agency. However, suing a sovereign has not traditionally been a simple task in the United States or elsewhere. Most nations grant foreign states the presumption of immunity, thus denying that their domestic courts have jurisdiction ...


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 ...


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.


The Role Of Medicare In Medical Malpractice Reform, William M. Sage Jan 2006

The Role Of Medicare In Medical Malpractice Reform, William M. Sage

Journal of Health Care Law and Policy

No abstract provided.


The Explained Award Of Damocles: Protection Or Peril In Securities Arbitration, Jill I. Gross Jan 2006

The Explained Award Of Damocles: Protection Or Peril In Securities Arbitration, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

NASD's proposed rule change requiring arbitrators to provide written explanations in arbitration awards upon the customers' request (the “explained award proposal”), which was published for public comment in July 2005, is the clearest example of NASD's proposing a rule change in response to investors' complaints. “We have found that investors want to know more about how a panel reaches its decision,” stated NASD Chairman and Chief Executive Officer Robert R. Glauber in announcing the explained award proposal. “By giving investors the option of requiring a written explanation of an arbitration panel's decision, we will increase investor confidence ...


Securities Mediation: Dispute Resolution For The Individual Investor, Jill I. Gross Jan 2006

Securities Mediation: Dispute Resolution For The Individual Investor, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

Part I of this article will provide a brief history of ADR in the securities industry (primarily arbitration), and then will describe the emergence of mediation as an alternative to arbitration. Part II will explore the state and federal statutory regulations that arguably govern the securities mediation process, and their impact on procedural and substantive justice. In particular, this section will review the applicability to and impact on securities mediation of the Securities Exchange Act of 1934 (1934 Act), the Federal Arbitration Act (FAA), and state mediation statutes, including the Uniform Mediation Act. In this section, I will argue that ...


Designer Trials, Elizabeth G. Thornburg Jan 2006

Designer Trials, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

This article considers 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 with the greatest pre-dispute bargaining power.

Such a ...


It's About The Relationship: Collaborative Law In The Employment Context, Marcia L. Mccormick Jan 2006

It's About The Relationship: Collaborative Law In The Employment Context, Marcia L. Mccormick

All Faculty Scholarship

Work is central to American life and drives us in fundamental ways. And the workplace, as a result, dominates our lives. We are spending ever greater amounts of time in the workplace and less time in civic and social engagements. As a consequence, our relationships at work have become so significant that they are nearly as important to us as our family relationships. In fact, the employment relationship is similar to the family relationship in the emotional support from coworkers it can provide and in the financial support it provides. Because the employment relationship is so common and psychologically so ...


Mediating In The Shadow Of Australian Law: Structural Influences On Adr, Nadja Alexander Jan 2006

Mediating In The Shadow Of Australian Law: Structural Influences On Adr, Nadja Alexander

Research Collection School Of Law

Mediation has grown rapidly in many Anglophone jurisdictions such as USA, Australia, Canada, New Zealand and England. The current state of mediation practice in many of these jurisdictions can be traced back to the establishment of community justice centres in the 1970s and 1980s. Mediation is practised in the private sector as well as in a wide range of court-referred programs. In many common law jurisdictions mediation is no longer a form of alternative dispute resolution, it has become primary dispute resolution.