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Articles 1 - 30 of 52
Full-Text Articles in Law
First Options Of Chicago, Inc. V. Kaplan And The Kompetenz-Kompetenz Principle , Adrianna Dulic
First Options Of Chicago, Inc. V. Kaplan And The Kompetenz-Kompetenz Principle , Adrianna Dulic
Pepperdine Dispute Resolution Law Journal
In 1995, the United States Supreme Court in First Options of Chicago, Incorporated v. Kaplan considered whether arbitral tribunals or courts should have the primary power to decide if parties agreed to arbitrate the merits of the dispute and whether the court of appeals should accept the district court's findings of fact and law or apply a de novo standard of review. The Court unanimously held that, unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitral tribunal. Furthermore, in such a case, …
The Icc Prosecutor V. President Medema: Simulated Proceedings Before The International Criminal Court , Pieter H. F. Bekker, David Stoelting
The Icc Prosecutor V. President Medema: Simulated Proceedings Before The International Criminal Court , Pieter H. F. Bekker, David Stoelting
Pepperdine Dispute Resolution Law Journal
On July 18, 2000, as part of the Annual Meeting of the American Bar Association, an all star cast of American and English lawyers gathered in the Common Room of the Law Society of England and Wales in London to simulate oral argument before the International Criminal Court ("ICC"). The fictitious proceedings involved a head of state, President Luis Medema, charged with genocide, war crimes and crimes against humanity. The prosecutors and defense counsel engaged in lively oral argument before the Trial Chamber in the context of three critical issues: (1) jurisdiction of the ICC over citizens of non-state parties; …
Arbitration And Judicial Civil Justice: An American Historical Review And A Proposal For A Private/Arbitral And Public/Judicial Partnership , Roger S. Haydock, Jennifer D. Henderson
Arbitration And Judicial Civil Justice: An American Historical Review And A Proposal For A Private/Arbitral And Public/Judicial Partnership , Roger S. Haydock, Jennifer D. Henderson
Pepperdine Dispute Resolution Law Journal
Dispute resolution systems historically have included three primary forums: the judicial process, administrative procedures, and the arbitral system. This article focuses on the modem and rapidly expanding third system - that of arbitration. The goal of everyone interested in maintaining a fair, accessible, and affordable civil justice system is to monitor, shape, and maintain arbitration as a fair, accessible, and affordable system. The purpose of this article is to provide information and ideas which will help make that goal a success. The first part of this article explains the historical development of arbitration in this country prior to and under …
Assimilative, Autonomous, Or Synergistic Visions: How Mediation Programs In Florida Address The Dilemma Of Court Connection , Dorothy J. Della Noce, Joseph P. Folger, James R. Antes
Assimilative, Autonomous, Or Synergistic Visions: How Mediation Programs In Florida Address The Dilemma Of Court Connection , Dorothy J. Della Noce, Joseph P. Folger, James R. Antes
Pepperdine Dispute Resolution Law Journal
Over the past twenty-five years, the state of Florida has been recognized across the United States as a leader in the development of court-connected alternative dispute resolution programs. Mediation, in particular, has flourished across the state, with one hundred eleven programs in place in family, civil, community, and dependency sectors. Administrative support and oversight for court-connected mediation programs are provided by The Florida Dispute Resolution Center (DRC) - the administrative arm of the Florida Supreme Court - housed within the Office of the State Courts Administrator. In collaboration with the DRC, we designed and conducted a benchmarking study of seven …
Filling The Gap Between Morality And Jurisprudence: The Use Of Binding Arbitration To Resolve Claims Of Restitution Regarding Nazi-Stolen Art , Rebecca Keim
Pepperdine Dispute Resolution Law Journal
Recognizing the gaps in existing legislation, this article will argue that disputes arising between claimants and museums regarding the repatriation of Nazi-looted artwork should be decided by binding arbitration rather than litigation. To facilitate such arbitration, international law should support the creation of an arbitration commission, which would provide the most efficient and consistent way to resolve claims. Moreover, a neutral forum with clear rules of law and procedure capable of resolving claims would not only be more fair to claimants, but also to museums and personal collectors. This article will first discuss the severity and magnitude of Nazi looting …
The State Of Arbitral Fees After Green Tree Financial: Uncertainty And Contradiction Demands Further Guidance From The Supreme Court, Kevin C. Clark
The State Of Arbitral Fees After Green Tree Financial: Uncertainty And Contradiction Demands Further Guidance From The Supreme Court, Kevin C. Clark
Pepperdine Dispute Resolution Law Journal
There are millions of employees in America who work every day without regard to the technical and seemingly mundane matters that govern their employment. What they don't realize however, is that their employment may be governed by an arbitration agreement. The terms of the arbitration agreement may be unclear until a dispute arises. This is particularly applicable in the area of arbitral fees, where there is a split among United States Courts of Appeals when addressing the issue of who should pay the fees arising from the arbitration of employment disputes. This fissure in American jurisprudence is the subject of …
Will Eeoc V. Waffle House, Inc. Signal The Beginning Of The End For Mandatory Arbitration Agreements In The Employment Context? , Marc A. Altenbernt
Will Eeoc V. Waffle House, Inc. Signal The Beginning Of The End For Mandatory Arbitration Agreements In The Employment Context? , Marc A. Altenbernt
Pepperdine Dispute Resolution Law Journal
Since the inception of several employment and discrimination statutes, arbitration has grown exponentially as an alternative for the adjudication of employment disputes. The Supreme Court has traditionally held that statutory claims are indeed arbitrable pursuant to a valid arbitration agreement under the Federal Arbitration Act ("FAA"). In an effort to end employment discrimination based on "race, color, religion, sex, or national origin," Congress enacted the Civil Rights Act of 1964 ("Title VII"). In order to adequately effect this calling, the Equal Employment Opportunity Commission ("EEOC") was created as the Act's primary enforcement mechanism. While arbitration agreements under the FAA and …
Reframing The Dilemma Of Contractually Expanded Judicial Review: Arbitral Appeal Vs. Vacatur , Eric Van Ginkel
Reframing The Dilemma Of Contractually Expanded Judicial Review: Arbitral Appeal Vs. Vacatur , Eric Van Ginkel
Pepperdine Dispute Resolution Law Journal
The Federal Arbitration Act ("FAA") of 1925 was created to ensure enforceability of agreements to arbitrate. The FAA is the centerpiece of the federal arbitration policy as construed by the Supreme Court. Section 10(a) FAA enumerates grounds on which an arbitral award can be set aside. The central issue discussed herein is whether parties can agree by contract to allow one of the parties to initiate review of the arbitral award by a court that would otherwise have jurisdiction over those parties, or whether the court's powers are somehow limited to the grounds for vacatur enumerated in Section 10(a) FAA. …
Contracting Around Ruaa: Default Rules, Mandatory Rules, And Judicial Review Of Arbitral Awards, Christopher R. Drahozal
Contracting Around Ruaa: Default Rules, Mandatory Rules, And Judicial Review Of Arbitral Awards, Christopher R. Drahozal
Pepperdine Dispute Resolution Law Journal
By specifying that its provisions generally are default rules and listing particular exceptions, the Revised Uniform Arbitration Act (“RUAA”) provides much needed certainty and avoids unnecessary litigation, at least compared to the Federal Arbitration Act, which does not always identify which of its provisions are default rules. In one important respect, however, RUAA jettisons that valuable certainty. The RUAA drafters left open (or at least sought to leave open) the question whether parties can contract to expand the grounds for judicial review of arbitration awards beyond those set out in the statute. In other words, the drafters purported not to …
"Expanded" Judicial Review Revisited: Kyocera Overturns Lapine, Eric Van Ginkel
"Expanded" Judicial Review Revisited: Kyocera Overturns Lapine, Eric Van Ginkel
Pepperdine Dispute Resolution Law Journal
Just when you thought you could validly add a clause to your client's arbitration agreement providing that the losing party may take an appeal from the award to the district court having jurisdiction over the parties, think again. What was the law of the Ninth Circuit since December 1997, when a three-judge panel of the Ninth Circuit Court of Appeals decided LaPine Technology Corporation v. Kyocera Corporation ("LaPine I"), has just been reversed by the Ninth Circuit Court of Appeals sitting en banc. In its decision, on a rehearing of what the court refers to as " …
The Third Party Non-Signatory's Ability To Compel International Commercial Arbitration: Doing Justice Without Destroying Consent , James M. Hosking
The Third Party Non-Signatory's Ability To Compel International Commercial Arbitration: Doing Justice Without Destroying Consent , James M. Hosking
Pepperdine Dispute Resolution Law Journal
This article analyzes the legal theories and other mechanisms employed in international commercial arbitration to achieve a workable compromise among the above-cited propositions. In so doing it touches on larger, more complex questions like the position of third parties in contract law, the jurisdictional foundations of arbitration, and the role of choice-of-law issues in determining the validity of the arbitration agreement. However important these broader concerns may be, they should not undermine the importance of the issue in its own right.
The Center Of The Center For Alternative Dispute Resolution, Wayne D. Brazil
The Center Of The Center For Alternative Dispute Resolution, Wayne D. Brazil
Pepperdine Dispute Resolution Law Journal
Hawaii was one of the first states to establish within its judiciary a Center for Alternative Dispute Resolution. The Center's mission is: to mediate major public policy disputes and to facilitate policy formulation dialogues, to design and help implement mediation and other ADR programs for state and local governmental agencies, to provide education about and training in mediation for the public and for employees of state and local government, and to oversee the extensive network of community mediation centers that provide grass-roots mediation services throughout the Islands. In November of 2005 the Center celebrated its 20th anniversary by sponsoring various …
A Civil Matter For A Common Expert: How Should Parties And Tribunals Use Experts In International Commercial Arbitration?, Ruth Fenton
Pepperdine Dispute Resolution Law Journal
How should parties and tribunals use experts in international commercial arbitration? Are the common and civil law traditions blurred or blended, or should there be specific practices for international arbitration? To answer these questions, it is necessary to look at the common and civil law approaches to the use of experts in international commercial arbitration. This article will look at circumstances that may require an expert and arbitration laws and rules that assist parties and arbitrators in appointing an appropriate expert. The article highlights and discusses differences and similarities between civil and common law traditions and draws a conclusion as …
The Confirmation Of Punitive Awards In Arbitration: Did Due Process Disappear?, Stuart M. Boyarsky
The Confirmation Of Punitive Awards In Arbitration: Did Due Process Disappear?, Stuart M. Boyarsky
Pepperdine Dispute Resolution Law Journal
Part I of this article provides a brief overview of the reasoning behind the limited judicial review of an arbitral award. Part II describes the state action doctrine and explains how several courts have used the doctrine in order to apply due process protection to proceedings involving private actors. In particular, this section discusses several significant decisions that involve the issue of whether a court's confirmation of an arbitrator's award of punitive damages creates state action and requires the application of constitutional protections such as due process. This Note concludes that due to a leading decision by the Eleventh Circuit, …
Sailing Around Erie: The Emergence Of A Federal General Common Law Of Arbitration , Kenneth F. Dunham
Sailing Around Erie: The Emergence Of A Federal General Common Law Of Arbitration , Kenneth F. Dunham
Pepperdine Dispute Resolution Law Journal
This paper traces the history of American arbitration from the common law to the FAA. It discusses the FAA as a procedural act prior to Southland v. Keating and as a substantive law act following Southland. It discusses the Erie doctrine as applicable to federal courts and state law preemption. The article concludes that Southland by-passed Erie using the Commerce Clause and the Supremacy Clause to create a federal common law of arbitration.
Forgive And Forget: Recognition Of Error And Use Of Apology As Preemptive Steps To Adr Or Litigation In Medical Malpractice Cases , Ashley A. Davenport
Forgive And Forget: Recognition Of Error And Use Of Apology As Preemptive Steps To Adr Or Litigation In Medical Malpractice Cases , Ashley A. Davenport
Pepperdine Dispute Resolution Law Journal
Medical malpractice cases are a special breed within the field of tort jurisprudence as mistakes in the medical field are regrettably inevitable. Medical universities use some of the greatest hospitals in this country as interactive classrooms to teach future physicians. A vast number of people are treated in hospitals throughout the United States every day, and of those treated, a number are neglected under the confines of the law. The American public expects infallible care from our health care system and any deviation from perfection may result in legal action. Those wronged seek litigation primarily as a means to punish …
In The Aftermath Of The Terri Schiavo Case: Resolving End-Of-Life Disputes Through Alternative Dispute Resolution, Alisa L. Geller
In The Aftermath Of The Terri Schiavo Case: Resolving End-Of-Life Disputes Through Alternative Dispute Resolution, Alisa L. Geller
Pepperdine Dispute Resolution Law Journal
Imagine yourself the proud parent of an adult daughter. You have spent many years nurturing your precious child so that she may excel in the world. Just as all of your dreams for her are coming true, the news no parent wants to hear was delivered. Your daughter lost control of her car, the vehicle overturned and she was found lying face down in a ditch. You gasped. You expected the worst. A tragic end to a life yet lived. Then, the good news was delivered. You breathed a sigh of relief. You learned she survived. She was in a …
Law As A Healing Profession: The "Comprehensive Law Movement" , Susan Daicoff
Law As A Healing Profession: The "Comprehensive Law Movement" , Susan Daicoff
Pepperdine Dispute Resolution Law Journal
This article outlines the history, context, importance, and development of ten or so "vectors" of an emerging change in the law comprising the "comprehensive law movement." This is a movement towards law as a positive force in the resolution and administration of legal matters. The vectors include: creative problem solving, therapeutic jurisprudence, preventive law, restorative justice, collaborative law, transformative mediation, and holistic justice. The movement utilizes the insights of procedural justice and other social science-based understanding of the intrapersonal and interpersonal dynamics of legal affairs and legal disputes. Developments such as problem solving courts, which include drug treatment courts, unified …
Brushing Off Lawsuits: Dental Peer Review Examined , Lisa C. Markarian
Brushing Off Lawsuits: Dental Peer Review Examined , Lisa C. Markarian
Pepperdine Dispute Resolution Law Journal
For all contractual and legal intents and purposes, a dentist is a provider of services, while the patient who consents to treatment is a consumer. A dentist's fees reflect, in part, the cost of malpractice insurance protection. Dentists can also calculate into their fees any refunds they may pay back to patients who suffer adverse results.8 An injured patient on the other hand has limited means of protection against damages resulting from the wrongful acts of dentists. The options open to patients include: (1) filing a complaint in civil court, (2) reporting the incident to a government agency such as …
Mediation By Judges: A New Phenomenon In The Transformation Of Justice , Louise Otis, Eric H. Reiter
Mediation By Judges: A New Phenomenon In The Transformation Of Justice , Louise Otis, Eric H. Reiter
Pepperdine Dispute Resolution Law Journal
This article has three principal parts. In the first, we present an overview of judicial mediation and how it responds to some of the perceived problems with the classical model of adjudication. In this analysis, we draw especially on the experience with judicial mediation at the appellate level at the Quebec Court of Appeal. In the second part, we examine the unfolding of the mediation process itself, using an annotated guide to judicial mediation to address broader issues of both practical and theoretical concern. In the third part, we consider the crucial question of ethics in mediation, signaling some of …
Alternative Dispute Resolution And Court-Appointed Experts , Joseph R. Slights Iii, Mark G. Haug
Alternative Dispute Resolution And Court-Appointed Experts , Joseph R. Slights Iii, Mark G. Haug
Pepperdine Dispute Resolution Law Journal
This article shamelessly borrows its subtitles-the Court's Tale and the Expert's Tale-from Chaucer's tale-telling. The two tales examine the life cycle of a case utilizing a court-appointed expert. The Court's Tale begins with a presumption against the court-appointed expert. Certain characteristics of a dispute, however, may be sufficient to rebut this presumption. The Court's Tale tells of one such case. The case involved complex damage calculations and irreconcilable positions that invite an objective analysis. The article then turns toward the Expert's Tale which describes how an expert helped resolve the problem. Following the Expert's Tale, the court assesses the outcome …
How To Take Control Of The Runaway Litigation Train , Jeremy Fogel
How To Take Control Of The Runaway Litigation Train , Jeremy Fogel
Pepperdine Dispute Resolution Law Journal
My subject today is how informed and appropriate use of alternative dispute resolution can benefit the parties in a business dispute, both by reducing costs and by producing qualitatively better results. As I will explain, although my colleagues on the bench and I do not mind presiding over your cases, litigating a commercial case rarely is the best means of advancing the interests of the companies involved.
The Gacaca Experiment: Rwanda's Restorative Dispute Resolution Response To The 1994 Genocide, Jessica Raper
The Gacaca Experiment: Rwanda's Restorative Dispute Resolution Response To The 1994 Genocide, Jessica Raper
Pepperdine Dispute Resolution Law Journal
Since its rise to power in July of 1994, the Rwandan government has been committed to prosecuting all those accused of genocide. To prosecute the approximately 130,000 defendants, Rwanda has adopted a program called gacaca, based on Rwanda's traditional customary dispute resolution system. The gacaca law provides a reconciliation component that allows defendants to trade confessions of past genocide crimes for indemnification, as well as a prosecution component that holds the most serious offenders accountable in a Western style prosecution in a formal court of law. One of the main goals of gacaca is to end the so-called "culture …
Unraveling The Mystery Of Wilko V. Swan: American Arbitration Vacatur Law And The Accidental Demise Of Party Autonomy , James M. Gaitis
Unraveling The Mystery Of Wilko V. Swan: American Arbitration Vacatur Law And The Accidental Demise Of Party Autonomy , James M. Gaitis
Pepperdine Dispute Resolution Law Journal
This article begins with a brief description of what the Wilko Court said with respect to the vacatur of arbitral awards and how federal and state appellate courts have construed that language. Traditional American arbitration vacatur law, including but not limited to the cases relied upon by the Wilko Court, are then reviewed in depth such that the Wilko decision and the Wilko Court's choice of language may be placed in context and fully examined. The intent and proper operation of the FAA are then discussed based on both the legislative history of the FAA and other authorities that consistently …
Illusory Ethics: Legal Barriers To An Ombudsman's Compliance With Accepted Ethical Standards, Scott C. Van Soye
Illusory Ethics: Legal Barriers To An Ombudsman's Compliance With Accepted Ethical Standards, Scott C. Van Soye
Pepperdine Dispute Resolution Law Journal
There are five general types of ombudsmen: classical, executive, corporate, educational, and newspaper. The first two types are appointed by governmental entities, while the last three are associated with private organizations. The American Bar Association has identified a sixth type of ombudsman, the advocate, whose responsibility it is to protect a vulnerable population, such as children or residents of long-term care facilities. But because the advocate ombudsman is appointed by the government, he or she is either a legislative or an executive ombudsman, and there is no reason to create a separate category. As the ombudsman concept has spread, professional …
The Increased Use Of "Reconciliation" In Criminal Cases In Central Asia: A Sign Of Restorative Justice, Reform Or Cause For Concern?, Cynthia Alkon
The Increased Use Of "Reconciliation" In Criminal Cases In Central Asia: A Sign Of Restorative Justice, Reform Or Cause For Concern?, Cynthia Alkon
Pepperdine Dispute Resolution Law Journal
Reconciliation, defined in Section VI below, provides the most common alternative to criminal prosecutions in Kazakhstan, Kyrgyzstan, Tajikistan and Uzbekistan. This article attempts to define and describe the different forms of reconciliation processes in these Central Asian countries. Section IV briefly examines the history, economies, governments, and legal systems including an outline of the criminal procedure of each country. For comparative purposes, Section V briefly examines the development of alternatives to criminal prosecution (generally known as restorative justice) in western nations, by considering the proponents for change, the underlying core values and ethical guidelines, and the types of cases that …
Revisiting The Promise Of Mediation For Employment Discrimination Claims , Susan K. Hippensteele
Revisiting The Promise Of Mediation For Employment Discrimination Claims , Susan K. Hippensteele
Pepperdine Dispute Resolution Law Journal
This paper generally examines the theory and practice of alternative dispute resolution (ADR) and specifically examines the role mediation has played in propelling rights discourse away from the center of efforts to achieve equal employment opportunity in the United States. It further addresses assumptions regarding individual employee goals in the context of a legal environment in which litigating to achieve rights-based remedies is increasingly difficult for grievants.
Ten Essential Elements Of An Effective Dispute Resolution Program , Stephen F. Gates
Ten Essential Elements Of An Effective Dispute Resolution Program , Stephen F. Gates
Pepperdine Dispute Resolution Law Journal
For an organization with a significant number of outstanding lawsuits and pre-litigation claims, it is important to have a comprehensive and disciplined program of managing disputes to produce optimal outcomes with consistency, effectiveness and cost efficiency. Based on my experience at large, complex industrial companies with well over 2,000 litigation matters outstanding at any time, the effective management of the dispute portfolio requires that each matter be managed effectively and that more matters be resolved each year than the number of new matters that arise. The focus of this article is corporate law departments, but the concepts are applicable to …
Negotiating A Deal In Korea: Reflections Of A Battle-Scarred Veteran, Michael E. Zacharia
Negotiating A Deal In Korea: Reflections Of A Battle-Scarred Veteran, Michael E. Zacharia
Pepperdine Dispute Resolution Law Journal
In 1996, for an international widget company focused on selling to the Japanese tourist and looking to expand its business, Korea was the Promised Land. Korea had a widget business well in excess of (U.S.) $500 million, and was the second most popular Japanese tourist destination. No foreign companies were in the market, and my client BWC (a world-renowned widget company), sought to change that. They did, for a while. This paper analyzes select aspects of the twelve months of Round One negotiations that led to the triumphant signing of a Joint Venture Agreement with SY, a leading Korean widget …
Why We Still Litigate, Phillip M. Armstrong
Why We Still Litigate, Phillip M. Armstrong
Pepperdine Dispute Resolution Law Journal
The benefits of Alternative Dispute Resolution ("ADR"), particularly mediation, are well documented and often touted. Some of these benefits are: cost savings, confidentiality, preservation of business relationships, finality, better outcomes, and more control. The list goes on, and rightfully so. The Comell/PERC study and the more recent BTI study, among others, have made it clear that corporate America has embraced ADR, particularly mediation, as a preferred means of resolving many disputes. As a long-time member of an in-house law department, I have watched our own management of commercial litigation and claims evolve from a typical "winner takes all" approach to …