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Articles 1 - 25 of 25
Full-Text Articles in Law
Collaboration: The Future Of Governance, Philip J. Harter
Collaboration: The Future Of Governance, Philip J. Harter
Journal of Dispute Resolution
The thesis of this paper is that collaboration-the public and private spheres working together while recognizing the legitimate role of each-should play a major role in making these important decisions. Can collaboration diminish the rancor? Certainly not on its own, but it can lead people to recognize that others are listening and trying to reach appropriate decisions. That alone has powerful political consequences.' Should the procedures described here be used for all public decisions? Of course not. But they should be considered for major ones precisely because they are effective, and a form of collaboration-a recognition that others have important …
Administrative Law And Culture For The U.S. Collaborative Governance State, David H. Rosenbloomn, Mei Jen Hung
Administrative Law And Culture For The U.S. Collaborative Governance State, David H. Rosenbloomn, Mei Jen Hung
Journal of Dispute Resolution
During the 1980s and 1990s, collaborative governance emerged as a potentially new global paradigm for public administration. It comes in many forms. However, its essence is governmental reliance on nongovernmental entities for the delivery of public services and constraints. Simply put, collaborative governance calls on government to focus on "steering" while relying on third parties to do the "rowing." In the United States, collaborative government is not new in kind-the federal government relied on contractors to convey the mail from the early days of the republic. Rather it is new in scope, accounting for billions of dollars and millions of …
Collaborative Governance: Emerging Practices And The Incomplete Legal Framework For Public And Stakeholder Voice, Lisa Blomgran Bingham
Collaborative Governance: Emerging Practices And The Incomplete Legal Framework For Public And Stakeholder Voice, Lisa Blomgran Bingham
Journal of Dispute Resolution
This article describes the broad range of processes through which citizens and stakeholders collaborate to make, implement, and enforce public policy. First, it briefly reviews collaborative and new governance. Second, it describes deliberative democracy; collaborative public or network management; and appropriate dispute resolution in the policy process. These three separate fields are part of a single phenomenon, namely the changing nature of citizen and stakeholder voice in governance. Third, it describes how these new forms of participation operate across the policy continuum. Fourth, it briefly reviews existing legal infrastructure for collaborative governance primarily from the perspective of federal administrative law. …
Some Thoughts On Judicial Review And Collaborative Governance, Michael Herz
Some Thoughts On Judicial Review And Collaborative Governance, Michael Herz
Journal of Dispute Resolution
A, perhaps the, central and never-to-be-resolved debate in American administrative law concerns this: to what extent should agencies be left to their own devices? Were the answer "completely," then there would be no such thing as administrative law. There would be administrative lore, and administrative practice, and administrative culture, and administrative functions. But administrative law consists of the doctrines, statutes, and regulations that limit agency discretion and subject agencies to various forms of oversight.
Participation In Governance From A Comparative Perspective: Citizen Involvement In Telecommunications And Electricity In The United Kingdom, France And Sweden, Dorit Rabinstein Reiss
Participation In Governance From A Comparative Perspective: Citizen Involvement In Telecommunications And Electricity In The United Kingdom, France And Sweden, Dorit Rabinstein Reiss
Journal of Dispute Resolution
Since the goal is to compare the European experiments with those adopted in the United States, the paper is structured around that comparison. This part introduces the issues and the methodology. Part II provides a brief description of the case studies, addressing similarities and differences among the European countries. Part III then discusses several mechanisms considered necessary to participation in the United States that have been rejected by the agencies in the European countries. Part IV describes the parallels, though it also points out differences between the countries individually, as well as between them and the United States collectively. Part …
When Precedent Wears Thin: The Missouri Supreme Court Clarifies An Issue Of Ambiguity Affecting The Arbitrability Of Wrongful Death Claims, Ashley Brittain
When Precedent Wears Thin: The Missouri Supreme Court Clarifies An Issue Of Ambiguity Affecting The Arbitrability Of Wrongful Death Claims, Ashley Brittain
Journal of Dispute Resolution
The issue before the Missouri Supreme Court in Lawrence H was whether an arbitration agreement signed on behalf of a nursing home resident is binding on plaintiffs in a wrongful death action against the nursing home. Beverly Manor argued that the court's decision in Burns "undercut" the cases holding that a wrongful death claim is a new and independent cause of action. However, the court disagreed that the Burns decision overturned such precedent. The court admitted that the language of Burns may seem to create ambiguity about whether wrongful death is a derivative claim but clarified that the Burns holding …
Failure To Object: Tribal Waiver Of Immunity By Participation In Arbitration, Christopher Mcmillin
Failure To Object: Tribal Waiver Of Immunity By Participation In Arbitration, Christopher Mcmillin
Journal of Dispute Resolution
In Oglala Sioux Tribe v. C & W Enterprises, Inc. (Oglala), the U.S. Court of Appeals for the Eighth Circuit dealt with whether a tribe's affirmative participation in the arbitration process waived its sovereign immunity as to arbitration and enforcement of an arbitration award in state court. Previously, courts have maintained that the existence of an arbitration clause in a commercial contract was sufficient to waive tribal immunity, but they relied on the explicit wording of the agreement itself. In the instant decision, this precedent applied to three construction contracts that contained an explicit choice of law provision, but the …
Consistent With Inconsistency: The Sixth Circuit Keeps Manifest Disregard After Hall Street, John C. Steffens
Consistent With Inconsistency: The Sixth Circuit Keeps Manifest Disregard After Hall Street, John C. Steffens
Journal of Dispute Resolution
For over half a century, courts have used the doctrine of manifest disregard as a ground for vacating arbitration awards. However, the Supreme Court's ruling in Hall Street Associates. v. Mattel raised questions among lower courts regarding the viability of the doctrine after the Hall Street decision. Today, many lower courts differ in their application of the doctrine. Some courts claim that the Hall Street decision has ended the viability of manifest disregard. Others claim that the doctrine lives on as an interpretation of section 10 of the Federal Arbitration Act (FAA),5 despite the Supreme Court's ruling in Hall Street.
When Procedure Moonlights As Reason, There Is Nothing Left To Abuse, Matthew E. Terry
When Procedure Moonlights As Reason, There Is Nothing Left To Abuse, Matthew E. Terry
Journal of Dispute Resolution
In Greenstreet v. Social Security Administration, when the Federal Circuit Court of Appeals could not discern exactly what basis upon which an arbitrator acted, it leapt past any presumption in favor of the arbitrator's discretion and found that what an arbitrator did not do was an abuse of his decision-making volition, just as an act beyond his prescriptive powers would have been an abuse of discretion. So, in attempting to weed out the arbitrariness in the arbitration processes that decide workplace punishments, the court heaped needless and unreasoned process squarely into the arbitrator's path, thereby greatly lessening the amount of …
Collaborative Governance Meets Presidential Regulatory Review, Donald R. Arbuckle
Collaborative Governance Meets Presidential Regulatory Review, Donald R. Arbuckle
Journal of Dispute Resolution
As I will discuss below, White House decision-making and OIRA regulatory review have a hierarchical component that is at odds with the horizontal nature of collaboration. The President's constitutional duties to manage the executive branch and OIRA's role as his agent in regulatory review require strong oversight of agency regulatory activity. Rulemaking is one means by which the executive branch implements not only statutory mandates, but also presidential policy; any sitting President would be loathe to delegate his authority to a collaborative panel. Nonetheless, the benefits of collaboration can be substantial, and the President could use his authority to encourage …
Unexcused Absence: A Review Of The Need, Costs, And (Lack Of) State Support For Peer Mediation Programs In U.S. Schools, Matthew D. Decker
Unexcused Absence: A Review Of The Need, Costs, And (Lack Of) State Support For Peer Mediation Programs In U.S. Schools, Matthew D. Decker
Journal of Dispute Resolution
You might not have heard about peer mediation lately. You might not have heard about it at all. That's a problem. Peer mediation, though grossly underutilized, could be the potent and cost-effective answer to many of the problems facing U.S. schools.
State Legislative Update, Ashley Brittain, Sean Dolan, Alicia Hammond, Meghan Prideaux
State Legislative Update, Ashley Brittain, Sean Dolan, Alicia Hammond, Meghan Prideaux
Journal of Dispute Resolution
The purpose of this Bill is to provide notice to owners of residential real property owners that mediation with the mortgagee is an option at the onset of foreclosure proceedings. The Bill changes the mechanism by which borrowers are notified of foreclosures; instead of receiving a writ and summons, borrowers receive a notice of mediation, a foreclosure mediation certificate, and a blank appearance form. Borrowers still receive the writ, summons, and complaint, however. The lender must appear at the mediation with the authority to approve a proposed settlement in order to receive a remedy, and no attorney's fees will be …
Promise Of Confidentiality In Mediation: Practitioners' Perceptions, The, T. Noble Foster, Selden Prentice
Promise Of Confidentiality In Mediation: Practitioners' Perceptions, The, T. Noble Foster, Selden Prentice
Journal of Dispute Resolution
In response to these articles, we sought to determine the perceptions of mediation practitioners in our own region, the Seattle/King County area, regarding mediation confidentiality and privilege. This paper presents our finding and addresses the following: (1) the scope of confidentiality and privilege under Washington law; (2) recent Washington case law addressing evidence of mediation communications; (3) a review of Florida's recent legislation - significantly different from Washington law, and unique among state mediation statutes - which provides for sanctions in the event confidentiality is breached; and (4) the perceptions of mediators, attorneys, and judges from the greater Seattle area …
Confidential Arbitration Of Whistleblower Actions: A Loophole That Could Effectively Undo The Sarbanes-Oxley Act Of 2002, Nicholas E. Eckelkamp
Confidential Arbitration Of Whistleblower Actions: A Loophole That Could Effectively Undo The Sarbanes-Oxley Act Of 2002, Nicholas E. Eckelkamp
Journal of Dispute Resolution
Among Sarbanes-Oxley Act of 2002 's many requirements and protections are protections for whistleblowers, the Sherron Watkins' and Cynthia Coopers' of the world, who are the first to take risks to alert others of a potential fraud. These whistleblowers normally would be able to utilize the court system to vindicate their rights in the event of a retaliatory employment action. Recently, however, employers have begun using mandatory arbitration agreements to keep potentially embarrassing whistleblower actions out of the court system. Guyden v. Aetna, Inc. is a recent Second Circuit case that examined the enforceability of such agreements, ultimately holding that …
Crowning The New King: The Statutory Arbitrator And The Demise Of Judicial Review, Michael H. Leroy
Crowning The New King: The Statutory Arbitrator And The Demise Of Judicial Review, Michael H. Leroy
Journal of Dispute Resolution
Judicial review of arbitration awards is highly deferential-but when does it become rubber stamping? Using original data, I find that federal courts vacated only 4.3 percent of 162 disputed arbitration awards. A sub-sample of forty-four employment discrimination arbitration awards under Title VII produced similar results. By comparison, federal Courts of Appeals in 2006 reversed 12.9 percent of 5,917 rulings made by civil court judges on the merits of legal claims.
I Want The Opposite Of What You Want: Reducing Fixed-Pie Perceptions In Online Negotiations, Laura Klaming, Jelle Van Veenen, Ronald Leenes
I Want The Opposite Of What You Want: Reducing Fixed-Pie Perceptions In Online Negotiations, Laura Klaming, Jelle Van Veenen, Ronald Leenes
Journal of Dispute Resolution
Negotiators typically believe their opponents' interests are diametrically opposed to their own. The existence of these fixed-pie perceptions has been identified as a major cause of ineffective conflict resolution and seem to be relatively resistant to change. In contrast to what negotiators typically believe, most conflict situations contain potential for solutions that benefit both parties instead of favoring one party at the expense of the other. Integrative agreements can be reached if opposing negotiators realize that they might have different priorities.
Is It The Real Thing: How Coke's One-Way Binding Arbitration May Bridge The Divide Between Litigation And Arbitration, Suzette M. Malveaux
Is It The Real Thing: How Coke's One-Way Binding Arbitration May Bridge The Divide Between Litigation And Arbitration, Suzette M. Malveaux
Journal of Dispute Resolution
This article is comprised of six parts. Part I introduces the topic. Part II examines the growing prevalence of compulsory pre-dispute arbitration agreements in employment contracts and the problems with such agreements. Part III describes the challenges employees face in the federal court system: higher pleading thresholds for intentional discrimination claims, the federal judiciary's current antagonism toward employee claims of discrimination (as demonstrated by recent empirical studies), and a beleaguered EEOC. Part IV describes how Coke adopted one-way binding arbitration and explores the ways in which this alternative is preferable to both mandatory arbitration and civil litigation for employees, employers, …
I Lost My Home, Don't Take My Voice: Ensuring The Voting Rights Of The Homeless Through Negotiated Rulemaking, Sarah Devlin
I Lost My Home, Don't Take My Voice: Ensuring The Voting Rights Of The Homeless Through Negotiated Rulemaking, Sarah Devlin
Journal of Dispute Resolution
"The right to vote, as the citizen's link to his laws as government, is protective of all fundamental rights as privileges." This right is often unexercised or taken for granted; but for hundreds of thousands of homeless citizens, voting is a right which is beyond reach. The U.S. Department of Housing and Urban Development estimated that on any given night in 2005, more than 754,000 Americans were without a traditional residence--living in emergency shelters, transitional housing, or on the streets. While many of those people are only temporarily homeless, many others are being disenfranchised by an electoral system that requires …
Immunity And Justice For All: Has The Second Circuit Overextended The Doctrine Of Absolute Immunity By Applying It To Arbitration Witnesses, W. Monroe Bonnheim
Immunity And Justice For All: Has The Second Circuit Overextended The Doctrine Of Absolute Immunity By Applying It To Arbitration Witnesses, W. Monroe Bonnheim
Journal of Dispute Resolution
In Rolon v. Henneman, the Second Circuit Court of Appeals considered whether absolute immunity should apply to witnesses in an arbitration proceeding. The common law doctrine of absolute immunity from civil liability for judges has a long pedigree dating back to English courts. When the United States Supreme Court reaffirmed the doctrine after Congress passed 42 U.S.C. § 1983, the Court cautioned against extending the doctrine beyond judges. Since then, however, the doctrine has been extended to prosecutors and witnesses at public trials, and more recently, to arbitrators and arbitral institutions. Whether absolute immunity should be further extended to witnesses …
What's Fair Is Fair: Tribal Assertions Of Jurisdiction Over Arbitration Decisions, Matthew E. Terry
What's Fair Is Fair: Tribal Assertions Of Jurisdiction Over Arbitration Decisions, Matthew E. Terry
Journal of Dispute Resolution
While the modem trend is to provide tribes with a certain amount of latitude in some areas, the court in First Specialty Insurance Corp. v. Confederated Tribes of the Grand Ronde Community of Oregon was tasked with shoehorning the facts into the applicable precedent because the various doctrines defining the limits of tribal jurisdiction under the Federal Arbitration Act ("FAA") have not often been tested, as they were here. The district court's opinion followed the modem trend by upholding the Tribe's assertion of its court system's jurisdiction, yet the court did not establish a precedent that should trouble the notion …
Future Of Mediation: A Sociological Perspective, The, Brian Jarrett
Future Of Mediation: A Sociological Perspective, The, Brian Jarrett
Journal of Dispute Resolution
Arguably, these sociological pressures are central to the future direction of the mediation field and, in the aggregate, provide a useful building block in the development of an emerging sociology of mediation-a development that could fill the theory-to-practice gap which currently bedevils the mediation field. Understanding sociological forces reminds us of the constraints within which mediators, as social actors, must work. More importantly, an awareness of these pressures is, conceivably, essential to the development of an autonomous and discernible profession that remains capable of welcoming a diversity of practitioners and their respective approaches. I summarize each of these pressures below …
Making Friends Of Foes: Bringing Labor And Management Together Through Integrative Bargaining, Carly Duvall
Making Friends Of Foes: Bringing Labor And Management Together Through Integrative Bargaining, Carly Duvall
Journal of Dispute Resolution
Collective bargaining's unique history and structure make it an ideal setting for integrative bargaining ("LB").1 First, most collective bargaining agreements have a set expiration date, which causes the parties to constantly return to the bargaining table to negotiate new terms. Second, collective bargaining in the labor-management setting has a long history in the United States, and unions and management tend to form long-lasting relationships. Finally, collective bargaining agreements address complex interests and are designed to meet the needs of a variety of constituents. These factors combine to produce a relationship involving several individuals, going back multiple generations, who are sure …
Expansion Of Arbitral Immunity: Is Absolute Immunity A Foregone Conclusion, The, Jenny Brown
Expansion Of Arbitral Immunity: Is Absolute Immunity A Foregone Conclusion, The, Jenny Brown
Journal of Dispute Resolution
With the increased use of arbitration in recent years, the concept of judicial immunity has expanded its scope to include arbitrators. As a result, states are currently enacting their own legislation regarding arbitrator immunity and are looking for guidance in how to do so. In response, the National Conference of Commissioners on State Laws has drafted two model acts, referred to as the Uniform Arbitration Act and the Revised Uniform Arbitration Act for states to utilize in formulating their own arbitration laws. Currently the Uniform Arbitration Act has been adopted in thirteen states and is being considered in four other …