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Articles 91 - 115 of 115
Full-Text Articles in Law
Is It Sexual Harassment Or Not - The Single Incident Exception, John C. Ayres
Is It Sexual Harassment Or Not - The Single Incident Exception, John C. Ayres
Missouri Law Review
Title VII of the Civil Rights Act of 1964 prohibits sexual harassment in the workplace. In a 2004 case of first impression, the Eighth Circuit Court of Appeals looked at an employer's affirmative defense against a hostile work environment claim involving a single incident of sexual harassment committed by a supervisor. The Eighth Circuit modified the test handed down by the Supreme Court in this situation. After outlining the historical background and rationale for imposing liability on employers for the actions of their supervisors, this Note will explore the logic behind the Eighth Circuit's interpretation of the Supreme Court test …
Calculating Lost Profit Damages: The Missouri Supreme Court Semi-Fixed The Variable Appellate Caselaw, Jennifer Koboldt Bukowsky
Calculating Lost Profit Damages: The Missouri Supreme Court Semi-Fixed The Variable Appellate Caselaw, Jennifer Koboldt Bukowsky
Missouri Law Review
Prior to Ameristar Jet Charter, Inc. v. Dodson International Parts, Inc., a split of authority existed among appellate cases in Missouri as to how to calculate lost profit damages. One line of cases stood for the proposition that all overhead expenses, including fixed expenses, should be deducted from estimated lost revenues to determine lost profit damages. Another set of cases explicitly refused to deduct all overhead; those courts only deducted variable expenses from estimated lost revenue to determine lost profit damages. The Missouri Supreme Court resolved this conflict in a unanimous decision in Ameristar. The court held that fixed expenses …
Modernizing Security In Rents: The New Uniform Assignment Of Rents Act, R. Wilson Freyermuth
Modernizing Security In Rents: The New Uniform Assignment Of Rents Act, R. Wilson Freyermuth
Missouri Law Review
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. Part I provides a general background about state mortgage law and the nature of the mortgagee's right to rents arising from the mortgaged premises, as well as the general impact of the federal Bankruptcy Code upon a mortgagee's security interest in rents. In Part II, the Article highlights four problem areas that have produced substantial litigation and uncertainty about the enforceability of security interests in rents in the bankruptcy context. These are (a) the proper …
What We Know And What We Should Know About American Trial Trends, Margo Schlanger
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.
When We Hold No Truths To Be Self-Evident: Truth, Belief, Trust, And The Decline In Trials, Lisa Blomgren Bingham
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 …
When Confidentiality Is Not Essential To Mediation And Competing Interests Necessitate Disclosure, Patrick Gill
When Confidentiality Is Not Essential To Mediation And Competing Interests Necessitate Disclosure, Patrick Gill
Journal of Dispute Resolution
Mediation is a process where a neutral intervener helps disputing parties develop a mutually beneficial resolution. Confidentiality is an established element of mediation. In general, confidentiality furthers the ability of the parties to seek mutually beneficial outcomes to disputes that would otherwise customarily produce a win/lose result. Confidentiality encourages parties to explore their underlying interests, without fear of the repercussions of revealing such information. Arguments are asserted that mediation will not succeed without the assurance that communications will be protected by a confidentiality privilege. The Uniform Mediation Act (UMA) has attempted to clarify the various confidentiality protections afforded by individual …
How Far Is Too Far: Reexamining The Continuing Extension Of Arbitral Immunity To Arbitral Organizations, Elizabeth Wilhelmi
How Far Is Too Far: Reexamining The Continuing Extension Of Arbitral Immunity To Arbitral Organizations, Elizabeth Wilhelmi
Journal of Dispute Resolution
The protection of arbitration proceedings from judicial inquiry is restricted not only by the limited grounds for vacatur, but also by the application of arbitral immunity, a protection derived from the judicial immunity applied to judges. This immunity strengthens the finality of arbitration by restricting judicial review of decisions protected by arbitral immunity, but at the same time, it raises the question of whether courts should give arbitration the same broad immunity that protects judges. Despite the differences between arbitration and the judicial system, the courts have applied arbitral immunity to the arbitrator's acts in the same way as they …
Introduction To Vanishing Trial Symposium, John Lande
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
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
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
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
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
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 …
World Without Trials, A, Marc Galanter
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
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
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
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
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
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 …