Law Commons^™

Per Se Bad Faith? An Empirical Analysis Of Good Faith In Chapter 13 Fee-Only Plans, Alexander F. Clamon

Emory Bankruptcy Developments Journal

Section 1325(a)(3) of the Bankruptcy Code requires chapter 13 plans to be "proposed in good faith and not by any means prevented by law." Section 1325(a)(7) requires that "the action of the debtor in filing the petition was in good faith." Courts evaluate both good faith provisions through a subjective inquiry into the totality of the circumstances in each case, typically using similar factors in the analysis. Many jurisdictions provide a list of factors for this assessment. Courts caution that any list is non-exhaustive and should not limit the subjective nature of the good faith inquiry. Some chapter 13 plans …

Extraterritoriality And Comparative Institutional Analysis: A Response To Professor Meyer, Zachary D. Clopton, P. Bartholomew Quintans

Cornell Law Faculty Publications

In the last few years, the Supreme Court has applied the presumption against extraterritoriality to narrow the reach of U.S. securities law in Morrison v. National Australia Bank and international-law tort claims in Kiobel v. Royal Dutch Petroleum. By their terms, these decisions are limited to the interpretation of ambiguous federal statutes and claims under the Alien Tort Statute. A potential unintended consequence of these decisions, therefore, is that future plaintiffs will turn to common-law causes of action derived from state and foreign law, potentially filing such suits in state courts. These causes of action may include “human rights claims …

Kiobel And The Law Of Nations, Zachary D. Clopton

Cornell Law Faculty Publications

Since 1789, the Alien Tort Statute (ATS) has provided federal court jurisdiction for tort suits by aliens for violations of the law of nations. Though debate certainly exists about the method by which ATS-appropriate torts are identified, the Supreme Court has acknowledged that the substantive content of ATS causes of action is derived from the law of nations. In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court justices addressed not the substance of ATS cases but the reach of that statute.

At least at the time of the Judiciary Act of 1789, the law of nations included not only …

Replacing The Presumption Against Extraterritoriality, Zachary D. Clopton

Cornell Law Faculty Publications

The presumption against extraterritoriality tells courts to read a territorial limit into statutes that are ambiguous about their geographic reach. This canon of construction has deep roots in Anglo-American law, and the U.S. Supreme Court recently reaffirmed this principle of statutory interpretation in Morrison v. National Australia Bank and Kiobel v. Royal Dutch Petroleum. Yet as explained in this Article, none of the purported justifications for the presumption against extraterritoriality hold water. Older decisions look to international law or conflict-of-laws principles, but these bodies of law have changed such that they no longer support a territorial rule. Modern courts suggest …

Absentee Soldier Voting In Civil War Law And Politics, David A. Collins

Wayne State University Dissertations

During the Civil War, twenty northern states changed their laws to permit absent soldiers to vote. Before enactment of these statutes, state laws had tethered balloting to the voter's community and required in-person participation by voters. Under the new laws, eligible voters - as long as they were soldiers - could cast ballots in distant military encampments, far from their neighbors and community leaders. This dissertation examines the legal conflicts that arose from this phenomenon and the political causes underlying it.

Legally, the laws represented an abrupt change, contrary to earlier scholarship viewing them as culminating a gradual process of …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 15, Iss. 2

Cardozo Journal of Conflict Resolution

No abstract provided.

Symposium Issue Introduction And Dedication, Shawna Benston

Cardozo Journal of Conflict Resolution

The 2013 Jed D. Melnick Annual Symposium, which took place on November 18th, 2013, was entitled "Bioethics, Healthcare Policy, and Alternative Dispute Resolution in the Age of Obamacare." Scholars and practitioners of bioethics alternative dispute resolution came together to discuss the likely impact of a healthcare overhaul born of an ethical challenge: to achieve the greatest good for the greatest number while continuing to honor the value of the individual. Collectively, the Symposium participants anticipated the particular importance of mediation and bioethical debate within the complex health-delivery system that has been drafted under this biomedical imperative.

The Growing Power Of Healthcare Ethics Committees Heightens Due Process Concerns, Thaddeus Mason Pope

Cardozo Journal of Conflict Resolution

Complex ethical situations, such as end-of-life medical treatment disputes, occur on a regular basis in healthcare settings. Healthcare ethics committees (HECs) have been a leading dispute resolution forum for many of these conflicts. But while the function of HECs has evolved from mediation to adjudication, the form of HECs has not evolved to adapt to this expanded and more consequential function.

Bioethics Mediation At The End Of Life: Opportunities And Limitations, Ellen Waldman

Cardozo Journal of Conflict Resolution

Medical advances in a wide variety of areas are helping more and more elderly people live longer. When hearts, lungs and kidneys failed in the past, death came swiftly and without discussion. Today, failing organs mobilize a sophisticated arsenal of medical technology designed to keep death at bay.

Managing Conflict In Clinical Health Care With Diminished Reliance On Third Party Intervention: Forging An Ethical And Legal Mandate For Effective Physician-Patient Communication, Edward J. Bergman

Cardozo Journal of Conflict Resolution

The world of clinical medicine is rife with conflict among caregivers, patients and their surrogates. This should not surprise given medicine's scientific, psychological, and language complexities, high stakes, fragmentation of care, multiplicity of players, time constraints, institutional politics, cultural differences, competing philosophies and economic dimensions. "Hospital life with its byzantine array of moving parts layered atop the unpredictable rhythms of illness is a permanent state of flux."

Bioethics Mediation & The End Of Clinical Ethics As We Know It, Autumn Fiester

Cardozo Journal of Conflict Resolution

In this Article, I will not only argue that bioethics mediation is a superior approach for resolving ethics conflicts, but I will also defend the controversial position that it is the only ethically justifiable method for resolving values-based conflicts in a pluralistic society. Although it has so far been relegated to the status of mere handmaiden to conventional consultation, bioethics mediation-as its detractors have surmised-has the potential to end clinical ethics consultation as we know it.

"Cut The Dog In Half": Resolving Animal Law Disputes Through The Use Of Alternative Dispute Resolution, Michael Ploudre Kaiser

Cardozo Journal of Conflict Resolution

In this article, I discuss ADR within the context of three types of animal law issues. In Part I, I discuss animal custody disputes, which I have found to be very well-suited to resolution by means of mediation. In Part II, I discuss the debate surrounding laboratory testing on animals and the reasons why several current approaches to this issue are insufficient and wasteful of resources. I outline how mediation has the potential to bridge differences and find at least short-term workable resolutions to a highly charged issue, which in turn may lead to longer-term resolutions. Lastly, in Part III, …

Chapter 9 Bankruptcy In California: The Efficacy Of Mandating Alternative Dispute Resolution In Municipal Bankruptcy Filings, Michael Galen

Cardozo Journal of Conflict Resolution

The subject of this Note is of importance to ADR practitioners: the incorporation of ADR into a new state law can mitigate a heated legal struggle involving state and federal law, while balancing the competing interests of powerful parties like local governments and large unions. This subject demonstrates the efficacy of ADR as applicable to bankruptcy law, a realm with which many ADR practitioners may be unfamiliar. This Note's case study focuses solely on California law and cases because California stands alone in its approach of mandating ADR as a precondition to a municipal bankruptcy filing. Since all states have …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 15, Iss. 3

Cardozo Journal of Conflict Resolution

No abstract provided.

The Sec Adds A New Weapon: How Does The New Admission Requirement Change The Landscape?, Paul Radvany

Cardozo Journal of Conflict Resolution

This Article will examine the SEC's revised settlement policy in the aftermath of Judge Rakoff's concerns about the SEC's longstanding "no admit, no deny" policy. In order to determine the import of the SEC's new settlement policy on the conduct of companies, as well as ongoing investigations and cases, this Article will also include analysis from lawyers who have advised their clients on the SEC's policy change.

Part II provides an overview of the SEC and its Enforcement Division, and describes the SEC's prosecutorial discretion. Part III examines Judge Rakoff's decisions in SEC v. Bank of Am. Corp.1 4 and …

Informed Consent In Mediation: Promoting Pro Se Parties' Informed Settlement Choice While Honoring The Mediator's Ethical Duties, Michael T. Colatrella Jr.

Cardozo Journal of Conflict Resolution

In explaining the proper role of informed consent in mediation, this Article will proceed as follows: Part II will examine mediation's core ethical values of self-determination, impartiality and promoting a quality process. Part III will explore the meaning and origins of the informed consent doctrine; and, in Part IV, analyze the application of informed consent policies and principles to mediation in the light of mediation's core ethical values. Part V will explore ways that mediators can promote informed outcome consent within the existing ethical framework and recommend legislative reform that will help clarify the mediator's proper role of promoting fair …

The Pepperdine Model: Learn First-Then Practice, Robert A. Uhl, Judith Hale Norris

Cardozo Journal of Conflict Resolution

On January 8, 2010, FINRA's Investor Education Foundation awarded Pepperdine University School of Law's Straus Institute for Dispute Resolution a grant of $250,000 to establish a comprehensive clinical education program in investor advocacy.

The Stop Online Piracy Act: The Latest Manifestation Of A Conflict Ripe For Alternative Dispute Resolution, Steven Tremblay

Cardozo Journal of Conflict Resolution

This Note examines how arbitration and mediation can be injected into the online copyright debate to better serve the interests of all parties. First, this Note addresses past litigation models to compare the benefits and costs of using the courts to resolve piracy issues. The history of litigation against mass peer-to-peer file sharers and individual downloaders is an important aspect to this story. Next, this Note describes the current state of copyright laws and how SOPA and PIPA would alter copyright protection against foreign piracy. Copyright holders, predominately represented by the Recording Industry Association of America, and content hosts, such …

International Commercial Arbitration, Anticipatory Repudiation, And The Lex Mercatoria, Kyle Winnick

Cardozo Journal of Conflict Resolution

The scope of this Note is thus two-fold: (1) to delineate the doctrine of anticipatory breach as it is currently under the lex mercatoria; and, (2) to evaluate and argue for its consistency in application by international arbitral tribunals. Section I-A discusses when arbitrators will choose to apply the lex mercatoria as the substantive law of the dispute. Section I-B explains the doctrine of anticipatory repudiation and discusses its inherent ambiguity. Section IC assesses the role of the CISG and the UNIDROIT Principles as a manifestation of the lex mercatoria. Section II-A explores the severability issue and an …

Masthead, Cardozo Journal Of Conflict Resolution, Vol. 16 (2014–15)

Cardozo Journal of Conflict Resolution

No abstract provided.

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 16, Iss. 1

Cardozo Journal of Conflict Resolution

No abstract provided.

Status And Contract In An Emerging Democracy: The Evolution Of Dispute Resolution In Ghana, Paul F. Kirgis

Cardozo Journal of Conflict Resolution

Ghana is one of the developing world's success stories. The first sub-Saharan colony to gain independence, it is a stable democracy experiencing sustained economic growth. Yet as Ghana reaches for the material gains of participation in modern commercial life, its dual legal systems-the system of customary adjudication by traditional authorities and the formal court systemhave come under increasing pressure. New legal developments have truncated the authority of traditional decision-makers, while an overburdened court system lacks the resources to fill the resulting adjudicative gaps. To solve the problem, Ghana is now experimenting with a system of quasi-public dispute resolution, including contractual …

Brazil's Legacy Of International Parental Child Abduction: Mediation Under The Hague Abduction Convention As A Solution, Paula Shulman

Cardozo Journal of Conflict Resolution

This Note argues that Brazil's failures to comply with the commands of the Hague Convention, to expeditiously return children abducted by a parent from their habitual residence to Brazil, can be remedied with the adoption of a new mediation model in lieu of its current system. This new mediation protocol can be modeled on those adopted in the United Kingdom and Germany. Section II of this Note provides a history of IPCA and an analysis of the problems unresolved or springing from the Hague Convention. Section III examines Brazil's accession to the Hague Convention, the Brazilian Central Authority, the body …

Frcp 26 Vs. Fre 408: Why Settlement Negotiations Should Be Privileged Against Third-Party Discovery, Andrew Sher

Cardozo Journal of Conflict Resolution

This Note proposes that courts should recognize a settlementnegotiation privilege because it will incentivize parties to settle. Settling disputes is beneficial to the judicial system as it is more efficient and effective at resolving disputes than trying cases. Recognizing a settlement-negotiation privilege will increase the number of settlements by avoiding the free-rider problem that the Federal Circuit's approach in In re MSTG will create. Similarly, creating a settlement-negotiation privilege will avoid the uncertainty caused by not recognizing a privilege or requiring heightened standards for discovery. The confidentiality and certainty of a settlement-negotiation privilege will encourage parties to settle as well …

We Are Not Who We Pretend To Be: Odr Alternatives To Online Impersonation Statutes, Kori Clanton

Cardozo Journal of Conflict Resolution

This Note focuses on how online dispute resolution ("ODR") processes, as opposed to litigation, offer a more efficient and effective legal solution to resolving online impersonation disputes. The purpose of this Note is to analyze the measures state legislatures and social media websites have implemented to combat online impersonation cases, and to propose a practical ODR solution that will eliminate the burdens of litigation and provide a cost-efficient and time-effective remedy. Section I provides an introduction to the current relevance and rising incidents of online impersonation via social media websites such as Facebook and Twitter. Section II explores the historical …

In Need Of Clarification: A Call To Define The Scope Of The Routine Booking Exception By Adopting The Legitimate Administrative Function Test, Elizabeth Parrish

Catholic University Law Review

No abstract provided.

Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioner, Ernest A. Young, Nita Farahany, Gail Heriot, Ilya Somin

Faculty Scholarship

No abstract provided.

Food For Thought: Genetically Modified Seeds As De Facto Standard Essential Patents, Benjamin M. Cole, Brent J. Horton, Ryan G. Vacca

Akron Law Faculty Publications

For several years, courts have been improperly calculating damages in cases involving the unlicensed use of genetically-modified (GM) seed technology. In particular, when courts determine patent damages based on the hypothetical negotiation method, they err in exaggerating these damages to a point where no rational negotiator would agree. In response, we propose a limited affirmative defense of an implied license due to the patent’s status as a de facto standard essential patent. To be classified as a de facto standard essential patent, the farmer must prove three elements that reflect the peculiarities of GM seeds used in farming: (1) dominance, …

Cracks In The Profession's Monopoly Armor, John Sahl

Akron Law Faculty Publications

This article examines the legal profession’s long-held monopoly in the nation’s legal services market in the context of two recent developments. The first development concerns the Conference of Chief Justices’ (CCJ) recent adoption of Resolution 15, “Encouraging Adoption of Rules Regarding Admission of Attorneys Who Are Dependents of Service Members.” Resolution 15 urges state bar authorities to develop and implement rules permitting admission without examination of lawyers who are military dependents. The CCJ’s rule promotes competition by facilitating the movement of lawyers from one geographic market to another.

The second development is Washington Supreme Court’s new Admission to Practice Rule …

Demystifying The Determination Of Foreign Law In U.S. Courts: Opening The Door To A Greater Global Understanding, Matthew J. Wilson

Akron Law Faculty Publications

With globalization and the proliferation of international commercial interaction, U.S. courts commonly encounter issues governed by the laws of other sovereigns. These encounters arise by virtue of private agreements or choice-of-law rules covering contractual relationships, cross-border conduct, tortuous acts, employment matters, intellectual property rights, and various other legal foundations. Because the substantive law applied in an international lawsuit can be outcome-determinative, it is important to accurately ascertain and determine the relevant law. In fact, the proper functioning of private international law in a domestic system is based on the appropriate application of law. U.S. federal and state courts are presumed …