Law Commons^™

Bill Would Encourage Effective Dispute Resolution, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

Many of the processes involved in traditional local land use review procedures involve two or more adversarial parties arguing their position with little to no consideration for the other party’s interest, and no regard for mutually beneficial outcome. This article describes a proposed New York law that would promote the use of mediation to supplement the traditional process. The article discusses studies geared towards testing the effectiveness of mediation, gives a review of out of state mediation legislation, as discusses corresponding court decisions. Finally, the article concludes with a review of the traditional roles of lawyers in the process, and …

The Tower Of Bazzle: Why Due Process Requires A Hybrid Model Of Classwide Arbitration, Zachary Allen

Zachary Allen

During the late 1970s the United States witnessed the beginning of an uncomfortable courtship between two powerful dispute resolution mechanisms: arbitration and the class action. In 2003, the U.S. Supreme Court announced its approval of their marriage, referred to as classwide arbitration, in Green Tree Financial Corporation v. Bazzle. In Bazzle, the Court held that where an arbitration agreement is silent regarding classwide arbitration, the arbitrator—not the court—should interpret the agreement to determine whether it permits classwide arbitration.

Unfortunately, the Court’s blessing was mixed. Bazzle is on infirm ground for two reasons. First, the Court could only muster a 4-1-4 …

Embracing Unconscionability’S Safety Net Function, Amy J. Schmitz

Faculty Publications

Despite courts' and commentators' denial of morality and focus on efficiency in contract law, fairness and flexibility have remained the bedrocks of the unconscionability doctrine. This Article therefore departs from the popular formalist critiques of unconscionability that urge for the doctrine's demise or constraint based on claims that its flexibility and lack of clear definition threaten efficiency in contract law. Contrary to this formalist trend, this Article proposes that unconscionability is necessarily flexible and contextual in order to serve its historical and philosophical function of protecting core human values. Unconscionability is not frivolous gloss on classical contract law. Instead, it …

C-Drum News, V. 2, No. 1, Fall 2008

The C-DRUM News

No abstract provided.

Curing Consumer Warranty Woes Through Regulated Arbitration, Amy J. Schmitz

Faculty Publications

This article proposes legislative procedural reforms accounting for the realities of consumer arbitration that have threatened and denied consumers' access to remedies for companies' violations of public, or statutory, warranty remedies under the Magnuson-Moss Warranty Act (MMWA). Furthermore, the Article proposes to clarify and expand the MMWA's current dispute resolution template in order to resolve judicial disagreement regarding the template's application and foster beneficial use of finding arbitration. Accordingly, this is not a call to ban all pre-dispute arbitration clauses in consumer contracts, but is instead an invitation for more politically palatable reforms that preserve both companies' savings and consumers' …

Should Parties’ Disclosure Requirements For Arbitrators Be Honored By Courts: Positivesoftware Solutions, Inc. V. New Century Mortgage Corporation, Leonard E. Gross, Howard L. Wieder

Leonard E. Gross

In this article, we criticize the decision of the Fifth Circuit Court of Appeals in PositiveSoftware Solutions, Inc. v. New Century Mortgage Corporation. In PositiveSoftware, the court confirmed an arbitration award even though the arbitrator had failed to disclose rather significant facts about his relationship to one of the parties. Our thesis is that courts should enforce the arbitrator disclosure requirements to which the parties have agreed by not confirming arbitration awards when arbitrators fail to comply with those disclosure requirements. In adopting the Federal Arbitration Act, Congress intended to encourage the use of arbitration. The net effect of refusing …

Empiricism And International Law: Insights For Investment Treaty Dispute Resolution, Susan D. Franck

Scholarly Articles

While scholars in the United States increasingly focus on the empirical dimension of legal scholarship, there have been challenges in using empiricism to explore international legal issues. Rather than relying on logic or instinct alone, empirical methodologies can provide scholars with tools to gain new facts, see existing ideas through a different lens, and engage in a more nuanced analysis of international law phenomena. There appears to be a natural synergy between empiricism and international investment treaty dispute resolution. With calls for trade time outs by U.S. presidential candidates, there is interest in how investment treaties function, whether they achieve …

Confronting Adr Agreements' Contract/No-Contract Conundrum With Good Faith, Amy J. Schmitz

Faculty Publications

This Article explores the intricate problem, or conundrum, of enforcing "Alternative Dispute Resolution ('ADR') agreements" that require mediation or other non-binding dispute resolution procedures. Although public policy supports ADR, courts' inadequate analysis of ADR agreements is threatening their vitality. Instead of properly considering the flexible nature of these agreements, courts assume formalist contract or no-contract conclusions similar to those they impose on what Professor Charles Knapp has termed "contracts to bargain." ADR agreements and other contracts to bargain pose enforcement problems because they require parties' cooperation without specifying what cooperation means or how to enforce such flexible duties. This Article …

In The Name Of Efficiency, Scott Shackelford

Scott Shackelford

India, the most populous and diverse democracy in the world, has a legal system to match. This system, a composition of ancient Hindi panchayats (village assemblies), Islamic law, and a formal British judiciary, has long been under immense strain, stifling economic competiveness and the pursuit of justice alike. As Lord Delvin famously quipped “If our business methods were as antiquated as our legal methods we should be a bankrupt country.” There are currently nearly 25 million cases pending in Indian courts, some of which have been appealed and argued for more than 20 years. Meanwhile, India spends only .2 percent …

The Olympic Binding Arbitration Clause And The Court Of Arbitration For Sport: An Analysis Of Due Process Concerns, Jason Gubi

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Is That All There Is? "The Problem" In Court-Oriented Mediation, Leonard L. Riskin, Nancy A. Welsh

UF Law Faculty Publications

The alternative process of mediation is now well-institutionalized and widely (though not universally) perceived to save time and money and satisfy lawyers and parties. However, the process has failed to meet important aspirations of its early proponents and certain expectations and needs of one-shot players. In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and other ordinary civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues …

Why Arbitrate? The Questionable Quest For Efficiency In Hallstreet Street Associates, Llc V. Mattel, Inc., David K. Kessler

David K Kessler

The Federal Arbitration Act (“FAA”) makes arbitration agreements between private parties legally enforceable. The policy favoring arbitration underlying the FAA has been justified as serving two ends: it protects freedom of contract, and it creates an efficient alternative dispute resolution system. Previous decisions by the Court have indicated a belief that, when those two goals come into conflict, the result that preserves freedom of contract should prevail. In Hallstreet Associates, L.L.C. v. Mattel, Inc., however, a recent case involving the Federal Arbitration Act, the Court’s decision preserved perceived efficiency at the expense of freedom of contract. The Court held that …

Dispute Resolution And The Vanishing Trial: Comparing Federal Government Litigation And Adr Outcomes, Lisa Blomgren Bingham, Tina Nabatchi, Jeffrey Senger, Michael Scott Jackman

Lisa Blomgren Bingham

This study compares litigation and alternative dispute resolution (ADR) in civil cases handled by Assistant United States Attorneys (AUSAs) during the period 1995 to 1998. The findings indicate that that use of ADR can be an efficient and effective procedural solution to the problems of time and cost in the justice system without sacrificing the quality of macrojustice. When ADR was used, 65% of cases settled (only 29% of cases settled when it was not used). Significantly more cases settled when ADR was voluntary than when it was mandatory (71% vs. 50%), and tort cases settled with more frequency than …

Property Rules, Liability Rules, And Uncertainty About Property Rights, Stewart E. Sterk

Michigan Law Review

Clarity can be a considerable virtue in property rights. But even when property rights are defined clearly in the abstract, ascertaining the scope of those rights in concrete situations often entails significant cost. In some instances, the cost of acquiring information about the scope of property rights will exceed the social value of that information. In those circumstances, further search for information about the scope of rights is inefficient; the social harm avoided by further search does not justify the costs of the search. Potential resource users, however make decisions based on private costs and benefits, not social costs and …

C-Drum News, V. 1, No. 2, Spring 2008

The C-DRUM News

No abstract provided.

Lowering The Stakes: Toward A Model Of Effective Copyright Dispute Resolution, Anthony Ciolli

West Virginia Law Review

No abstract provided.

The Law Firm Caste System, Tiffani N. Darden

Tiffani N. Darden

Diversity eludes the most prestigious legal employers—the federal judiciary, academia, and elite law firms—despite enlightened scholarship diagnosing the quandaries of workplace equity in professional settings. While recruitment efforts stream attorneys of color into the lower ranks of corporate law firms, management and the profession still grapple with retention challenges. How can the legal profession, including law firms, resolve this problem? In addressing this question, I examine the uncharted intersection between two bodies of legal scholarship: workplace equity theory and the institutional analyses of law firm diversity. The primary data collection method for this study consists of personal interviews with diversity …

Holistic Approaches To Classroom Instruction, A Precursor To More Collaborative Lawyers: Reflections Of A Professor And Collaborative Lawyer, Kathy-Ann K. Hart

Kathy-Ann K Hart

Coupling of academia and practice in legal curricula can make programs of law study more holistic than many of them currently are. Encouraging law students to learn in more than one way in the classroom engages them as multi-dimensional learners or beings. As a collaborative lawyer I have a vested interest in increasing the numbers of lawyers who choose collaborative practice and I believe that peaceful, more co-operative ways of practicing law (like employing collaborative principles) can create future lawyers and a legal profession that’s healthier and happier. In this article, I reflect on my application of holistic approaches in …

Celebrity In Cyberspace: A Personality Rights Paradigm For Personal Domain Name Disputes, Jacqueline Lipton

Jacqueline D Lipton

When the Oscar™-winning actress Julia Roberts fought for control of the domain name, what was her aim? Did she want to reap economic benefits from the name? Probably not, as she has not used the name since it was transferred to her. Or did she want to prevent others from using it on either an unjust enrichment or a privacy basis? Was she, in fact, protecting a trademark interest in her name? Personal domain name disputes, particularly those in the space, implicate unique aspects of an individual’s persona in cyberspace. Nevertheless, most of the legal rules developed for these disputes …

Bargaining In The Shadow Of Violence: The Npt, Iaea, And Nuclear Non-Proliferation Negotiations, Arsalan M. Suleman

Arsalan Suleman

The NPT non-proliferation regime is both a multilateral treaty of international law and a dispute system designed to manage conflict over the use of nuclear technology. The system seeks to balance the competing desires of member-states to have access to peaceful nuclear technology and to provide national security. In the course of implementation, the system must handle disputes over alleged violations of the NPT and IAEA safeguards agreements. Negotiations, crucial to the functioning of the NPT dispute system, are undertaken in the shadow of the law and the shadow of violence. The NPT and any relevant agreement signed with the …

Two Crises Of Confidence: Securing Non-Proliferation And The Rule Of Law Through Security Council Resolutions, Vik Kanwar

Vik Kanwar

This timely article describes the powers of the United Nations Security Council as they have developed in the field of non-proliferation, and demonstrated in recent resolutions, and goes on to propose a normative framework based on the model of reciprocal “confidence-building” measures to ensure the legality and legitimacy of these resolutions.

Recent proliferation crises (concerning Iran, North Korea, and non-state proliferation networks) have led the Council draw upon various sources-- express and implied powers under the UN Charter, powers granted by specific treaties, and an unusual degree of international consensus-- to expand its powers. This paper attempts to transcend false …

The Paradox Of Social Instability In China And The Role Of The Xinfang System, Matthew Adam Bruckner

Matthew Adam Bruckner

No abstract provided.

Commercial Peace And Political Competition In The Crosshairs Of International Arbitration, Thomas E. Carbonneau

Journal Articles

This article examines the mixed effect of arbitration upon the generation of international law norms; in particular, how arbitration can generate private law norms so effectively and yet still face strong resistance in public international law processes and controversies. The work of arbitration for international commercial litigation has been nothing less than spectacular. In both the private international and domestic civil contexts, arbitration has provided viable remedial solutions and functional adjudication when the law was either nonexistent or incapacitated. It has supplied a workable and adaptable trial system, which-on the international side-could also generate substantive legal norms. Arbitration thereby has …

The Revolution In Law Through Arbitration, Thomas E. Carbonneau

Journal Articles

My subject is arbitration. I explore how its re-emergence during the last forty years has revolutionized the thinking about, and the practice of, law. The development of a "strong federal policy favoring arbitration" cast aside traditional acceptations about law and adjudication. The rule of law-the human civilization associated with law and the legal process-has been profoundly, perhaps irretrievably, altered by the rise of arbitration. The landmark cases in labor and employment arbitration- Alexander v.Gardner-Denver Company (the "old time religion") and Gilmer v. Interstate/JohnsonLane Corporation (the "new age" thinking)- attest to the enormous distance that separates past and present concepts of …

Developing Better Lawyers And Lawyering Practices: Introduction To The Symposium On Innovative Models Of Lawyering, John M. Lande

Faculty Publications

This article provides an overview of a symposium sponsored by the University of Missouri Center for the Study of Dispute Resolution in 2007 that featured leading practitioners and scholars to analyze innovative models of lawyering, including Collaborative Law and other processes. The authors include David Hoffman, Nancy Welsh, Julie Macfarlane, Richard Shields, Pauline Tesler, Scott Peppet, Forrest ("Woody") Mosten, Jeanne Fahey, Kathy Bryan, Lawrence McLellan, and John Lande. The articles address issues including: teaching law students to "feel" like lawyers and not just "think" like them, using "conflict resolution advocacy" (which is not necessarily oriented to the courts), developing lawyers' …

Mandating Minimum Quality In Mass Arbitration, Jeffrey W. Stempel

Scholarly Works

The Supreme Court's decision in McMahon and its progeny has led many businesses and employers to embrace what was once deemed a localized, industry-specific practice. The "new" or "mass arbitration" only mildly resembles the traditional system employed by niches in industry for settling commercial matters among commercial actors. While the "old" system involved parties who were relatively equal in bargaining power and knowledge, these systems for mass arbitration lack a freely entered bargain and resemble more closely, contracts of adhesion. Privatized arbitration resolves issues of both statutory and substantive law, and there is a strong argument, given the inexperience of …

Practical Insights From An Empirical Study Of Cooperative Lawyers In Wisconsin, John M. Lande

Faculty Publications

This article reports on a study of members of the Divorce Cooperation Institute (DCI), a group of Wisconsin lawyers who use a "Cooperative" process to provide a constructive and efficient negotiation process in divorce cases. The study involved in-depth telephone interviews and several surveys of DCI members. Although DCI members use this process only in divorce cases, it can be readily adapted for other types of cases.DCI's approach generally involves an explicit process agreement at the outset, based on principles of: (1) acting civilly, (2) responding promptly to reasonable requests for information, (3) disclosing all relevant financial information, (4) obtaining …

Colliding Worlds Of Dispute Resolution: Towards A Unified Field Theory Of Adr, David A. Hoffman

Journal of Dispute Resolution

In the essay that follows, I advocate for greater acceptance of the diversity of belief and practice in the field of dispute resolution and contend that the unifying elements of law and dispute resolution practice predominate over those elements that divide practitioners. After providing definitions of some of the primary forms of dispute resolution (in Part II), the article describes tensions in the Alternative Dispute Resolution (ADR) field (in Part III), quoting some of the harsh criticism that mediators, Collaborative practitioners, and other dispute resolvers have leveled at each other. Part III also expresses the concern that demonization and harsh …

Panel Discussion: Problem-Solving Mechanisms To Achieve Consensus: How Do We Ensure Successful Resolution?, Jacqueline Nolan-Haley, Cathy A. Costantino, Sean F. Nolon, Joseph A. Siegel

Fordham Urban Law Journal

The focus of the panel discussion is problem-solving mechanisms in the public arena to ensure and achieve consensus via the question, "How do we ensure successful resolution?" Each speaker gives a 20-minute speech followed by questions from attendees. After all three speakers conclude their remarks, Professor Nolan-Haley opens the floor to general questions. Speakers include: 1. Cathy A. Constantino, Federal Deposit Insurance Corporation, Georgetown Law School, George Washington Law School 2. Sean F. Nolon, Pace University School of Law 3. Joseph A. Siegel, U.S. Environmental Protection Agency

Examining The Dispute Resolution Section Pro Bono Mediation Project: Lessons Learned And A Plan For The Future, Sherrill W. Hayes

Sherrill W. Hayes