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Articles 1 - 30 of 39
Full-Text Articles in Law
Lainey Feingold’S Book On Structured Negotiation, John Lande
Lainey Feingold’S Book On Structured Negotiation, John Lande
Faculty Blogs
This post discusses Lainey Feingold’s book, Structured Negotiation – A Winning Alternative to Lawsuits. Lainey is a disability rights lawyer who uses a process for successfully negotiating cases without filing lawsuits. The book is a nuts-and-bolts guide for using her process.
Bad Decisions To Go To Trial, John Lande
Bad Decisions To Go To Trial, John Lande
Faculty Blogs
This post describes an extreme example of a very common pattern of over-confident litigation risk assessments. Target Corporation was hit with a $4.6 million verdict after rejecting a $12,000 demand on behalf of a child who was stuck with a hypodermic needle in a Target parking lot. Target had offered only $750.
Big New Study On Necessary Lawyering Skills, John Lande
Big New Study On Necessary Lawyering Skills, John Lande
Faculty Blogs
This post summarizes the “Foundations of Practice” survey of lawyers which identifies “foundations” that lawyers need soon after graduation. These include communication, emotional and interpersonal intelligence, passion, ambition, professionalism, and other qualities and talents. Almost all of the items on the list refer to personal qualities that law schools don’t emphasize in their curricula. By contrast, law schools focus on things that only small proportions of the lawyers think are necessary soon after graduation.
Negotiation Symposium Virtual Book Club, John M. Lande
Negotiation Symposium Virtual Book Club, John M. Lande
Faculty Blogs
As part of the Tower of Babel Symposium, speakers suggested publications providing useful insights about negotiation. The author conducted conversations with the speakers, which are collected in this post.
State Legislative Update, M. Katherine Kerbs, Katherine E. Mcmurtrey, Courtney Lauer, Theresa Mullineaux
State Legislative Update, M. Katherine Kerbs, Katherine E. Mcmurtrey, Courtney Lauer, Theresa Mullineaux
Journal of Dispute Resolution
Mediation is a non-binding type of dispute resolution. Mediation is a process where a neutral, third party with no authoritative decision-making power assists parties in a dispute to voluntarily reach a mutually acceptable agreement. The legal community has encouraged alternative dispute resolution, including mediation. With mediation as the primary alternative dispute resolution type in the federal district courts, it is now even more important that legislation surrounding mediation and confidentiality is created. In fact, over half of the ninety-four federal court districts now offer, and in most instances, require mediation.
Book Review: Challenges And Recusals Of Judges And Arbitrators In International Courts And Tribunals, S. I. Strong
Book Review: Challenges And Recusals Of Judges And Arbitrators In International Courts And Tribunals, S. I. Strong
Faculty Publications
The proliferation of international courts and tribunals over the last few decades has made it increasingly important to ensure that such proceedings are entirely above reproach. In particular, questions have arisen about what should be done in cases where a judge’s or arbitrator’s continued presence threatens the legitimacy of the proceedings. As fundamental as this question is, very little has been written about the standards for challenge and removal of such officials. Fortunately, Challenges and Recusals of Judges and Arbitrators in International Courts and Tribunals, a new collection of essays edited by Chiara Giorgetti, Associate Professor of Law at the …
The English Inheritance—What The First American Colonists Knew Of Mediation And Arbitration, Derek Roebuck
The English Inheritance—What The First American Colonists Knew Of Mediation And Arbitration, Derek Roebuck
Journal of Dispute Resolution
It seems fair to assume that the first American colonists took with them attitudes and practices from home, including the ways in which they routinely resolved disputes. For example, on November 11, 1647 the General Court of the Massachusetts Bay Colony authorized the purchase of Edward Coke’s Reports, First and Second Institutes and Book of Entries, “to the end we may have the better light for making and proceedings about laws.” But does that mean it was natural then for parties with differences to look to litigation for an answer? This Article provides ample evidence of a preference for other …
The Evolution Of Interstate Arbitration And The Peaceful Resolution Of Transboundary Freshwater Disputes, Tamar Meshel
The Evolution Of Interstate Arbitration And The Peaceful Resolution Of Transboundary Freshwater Disputes, Tamar Meshel
Journal of Dispute Resolution
This Article sets out to examine the potential for arbitration to be effectively employed by states in the resolution of transboundary freshwater disputes. Part II will describe the unique nature of TFDs, briefly examine the international law principles governing such disputes as well as the main mechanisms used for their resolution, and evaluate their adequacy. Part III will suggest a new approach to interstate arbitration, intended to ‘revive’ it in the context of TFD resolution. The first element of this approach calls for a return to the original purpose and true nature of arbitration, which rather than constituting a purely …
An Innovative Matrix For Dispute Resolution: The Dubai World Tribunal And The Global Insolvency Crisis, Jayanth K. Krishnan, Harold Koster
An Innovative Matrix For Dispute Resolution: The Dubai World Tribunal And The Global Insolvency Crisis, Jayanth K. Krishnan, Harold Koster
Journal of Dispute Resolution
This study examines a legal experiment that occurred during the height of the global financial crisis. As markets from the United States to Europe to the Global South shook, one country – the United Arab Emirates (U.A.E.) – found itself on the brink of economic collapse. In particular, in 2009 the U.A.E.’s Emirate of Dubai (Emirate) was contemplating defaulting on $60 billion of debt it had amassed. Recognizing that such a default would have cataclysmic reverberations across the globe, Dubai’s governmental leaders turned to a small group of foreign lawyers, judges, accountants, and business consultants for assistance. Working in a …
Seeking Justice For Grandma: Challenging Mandatory Arbitration In Nursing Home Contracts, Andi Alper
Seeking Justice For Grandma: Challenging Mandatory Arbitration In Nursing Home Contracts, Andi Alper
Journal of Dispute Resolution
This Comment advocates against the use of mandatory arbitration in nursing home admission contracts and discusses various legal theories available to refute such clauses. Part II discusses mandatory arbitration in general and its use in nursing home admission contracts. Part III summarizes some of the common arguments made in favor of and against arbitration in nursing home admission contracts. Finally, Part IV addresses how courts analyze these agreements and possible approaches to avoid arbitration of disputes arising out of the nursing home contract.
Mediators Without Borders And The Efficacy Of Community Mediation Centers In Israel And Palestine, Jenna Homeyer
Mediators Without Borders And The Efficacy Of Community Mediation Centers In Israel And Palestine, Jenna Homeyer
Journal of Dispute Resolution
This Comment will also discuss whether using specific techniques from each center can help restore relations between the people of Israel and Palestine. “[C]ulture is not posited as the cause of conflict, instead, it is intertwined with conflict and the processes of resolution.” What makes each center successful is that they embrace cultural differences. Instead of viewing cultural differences as an obstacle to peace they use cultural norms like Sulha, a traditional Arab way to resolve conflict, to invite peace. Each of these processes maintains a person’s dignity through the resolution process, and helps each party see the opposing party …
Introduction: Judicial Education, Dispute Resolution, And The Life Of A Judge: A Conversation With Judge Jeremy Fogel, Director Of The Federal Judicial Center, Jeremy Fogel Hon., S. I. Strong
Introduction: Judicial Education, Dispute Resolution, And The Life Of A Judge: A Conversation With Judge Jeremy Fogel, Director Of The Federal Judicial Center, Jeremy Fogel Hon., S. I. Strong
Journal of Dispute Resolution
In January and June 2016, Judge Jeremy Fogel, Director of the Federal Judicial Center, sat down with Professor S.I. Strong to discuss a variety of issues ranging from the civil rules amendments and the case management process to judicial education, mediation and the role of the Federal Judicial Center. Judge Fogel also gave his views on what lawyers, academics and the public need to know about the federal judiciary and the task of judging, thereby providing important and unique insights into the judicial process.
Mindful “Judging” 1.5: The Science Of Attention, “Lie Detection,” And Bias Reduction – With Kindness, Clark Freshman, Shauna Shapiro, Sarah De Sousa
Mindful “Judging” 1.5: The Science Of Attention, “Lie Detection,” And Bias Reduction – With Kindness, Clark Freshman, Shauna Shapiro, Sarah De Sousa
Journal of Dispute Resolution
This article addresses two overlapping audiences. We’ve written this article partly as a kind of manual like Mindfulness 1.0 for those who suspect they know little and as a resource to convince skeptical others, and the curious or even skeptical parts of ourselves, that mindfulness deserves its newfound, albeit shaky, respect. What is mindfulness and how can mindfulness help us judge, advocate, and negotiate? Judge Fogel’s writing and his position carry weight with many. This Article adds some of the latest research, including brain imaging and carefully controlled studies. We highlight multiple types of data from dramatic increases in working …
Professor Roebuck’S Lessons For Mediators, Arbitrators, And Historians, Douglas E. Abrams
Professor Roebuck’S Lessons For Mediators, Arbitrators, And Historians, Douglas E. Abrams
Journal of Dispute Resolution
Professor Roebuck’s biographical essay on Nathaniel Bacon, the centerpiece of his historical article, delivers a timely lesson about how adherence to solid personal standards can elevate a mediator or arbitrator above the rest of the pack. With an eye toward future national direction, the article closes by summoning American historians to chronicle the development of alternative dispute resolution (ADR) since the nation’s colonial days.
The Faa Vs. The Nlra And The Flsa: Have Courts Given The Faa Too Much Deference?, Nikki Clark
The Faa Vs. The Nlra And The Flsa: Have Courts Given The Faa Too Much Deference?, Nikki Clark
Journal of Dispute Resolution
This Comment will discuss whether courts have given too much weight to the FAA at the cost of making other federal laws such as the National Labor Relations Act (NLRA) and the Fair Labor Standards Act (FLSA) less effective. The NLRA and the FLSA are not the only federal laws that stand to be affected by the expanding application of the FAA. The Age Discrimination in Employment Act (ADEA) has also been affected by the FAA.
Dispute Resolution Tools In Patent Infringement Cases: Aoki V. Gilbert, No. 2:11-Cv02787-Tln-Cnd, 2015 Wl 5734626 (E.D. Cal. 2015), Brandon Craig
Dispute Resolution Tools In Patent Infringement Cases: Aoki V. Gilbert, No. 2:11-Cv02787-Tln-Cnd, 2015 Wl 5734626 (E.D. Cal. 2015), Brandon Craig
Journal of Dispute Resolution
While arbitration has become a widely accepted alternative to litigation, the role it should play in patent disputes has been widely debated. Issued by the federal government, patents confer a temporary monopoly on the production, use, and sale of new innovations. The government may have an interest in keeping such disputes out of the private realm of arbitration, at least when the dispute is over the validity of the patent. For other patent issues such as licensing, which is essentially a private contract, arbitration may serve as a useful and cost-effective alternative. Even when arbitration is not warranted, other useful …
Where The “Puck” Is Going – And What Faculty Should Do To Help Students Get There, John Lande
Where The “Puck” Is Going – And What Faculty Should Do To Help Students Get There, John Lande
Faculty Blogs
This post summarizes presentations and discussion at a program of the ABA Section of Dispute Resolution’s annual Legal Educators’ Colloquium. The conversation addressed anticipated changes that might affect legal and dispute resolution practice, how practice might change as a result, and how these changes could affect people’s teaching.
Easy Assignment To Promote Law Students’ Apprenticeship Of Identity, John Lande
Easy Assignment To Promote Law Students’ Apprenticeship Of Identity, John Lande
Faculty Blogs
This post describes an assignment in which students were required to review several law firm websites and write a homepage for the kind of practice that they would like to be part of. The post includes the assignment, which faculty are welcome to use or adapt.
Remedy Realities In Business-To-Consumer Contracting, Amy J. Schmitz
Remedy Realities In Business-To-Consumer Contracting, Amy J. Schmitz
Faculty Publications
Professor Jean Braucher greatly contributed to the exploration of consumer and contract law by questioning how the law operates in the real world and highlighting the importance of “law in action.” In recognition of that contribution, this Article focuses on law in action with respect to consumers’ quest to obtain remedies regarding their business-to-consumers (“B2C”) contracts. Currently, consumers often have no practical recourse with respect to B2C purchase problems due to the complexity, cost, and inconvenience of the processes for obtaining remedies. Accordingly, stated legal rights become meaningless for individuals living in the real world. This Article, therefore, explores access …
Realizing Rationality: An Empirical Assessment Of International Commercial Mediation, S. I. Strong
Realizing Rationality: An Empirical Assessment Of International Commercial Mediation, S. I. Strong
Faculty Publications
For decades, parties, practitioners and policymakers have believed arbitration to be the best if not only realistic means of resolving cross-border business disputes. However, the hegemony of international commercial and investment arbitration is currently being challenged in light of rising concerns about increasing formalism in arbitration. As a result, the international community has sought to identify other ways of resolving these types of complex commercial matters, with mediation reflecting the most viable option. Numerous public and private entities have launched initiatives to encourage mediation in international commercial and investment disputes, and the United Nations Commission on International Trade Law (UNCITRAL) …
For Eschewing Of Trouble And Exorbitant Expense: Arbitration In The Early Modern British Isles Symposium, Margo Todd
For Eschewing Of Trouble And Exorbitant Expense: Arbitration In The Early Modern British Isles Symposium, Margo Todd
Journal of Dispute Resolution
The history of binding arbitration in British customary law is very long, and in scope, very broad. In Scotland and in England, in settings both urban and rural, commercial and ecclesiastical, and across a broad range of social estates, from craftsmen to lords, alewives to merchant princes, it had by the sixteenth and seventeenth centuries become the default mechanism to avoid costly litigation, and to resolve disputes likely otherwise to end in bloodshed.1 It was often a device to avoid the courts, since litigation was always expensive and time-consuming; however, in a great number of cases it occurred in cooperation …
International Implications Of The Will As An Implied Unilateral Arbitration Contract, S. I. Strong
International Implications Of The Will As An Implied Unilateral Arbitration Contract, S. I. Strong
Faculty Publications
In his article, The Will As An Implied Unilateral Arbitration Contract, Professor Gary Spitko offers an intriguing and innovative argument about how arbitration provisions in wills can be enforced even over the objection of a beneficiary and even in cases where the beneficiary seeks to set aside the will in its entirety. While I do not agree with all of the assertions in that Article (for example, the conclusion that "a consensus is developing that a testator may not compel arbitration of contests to her will"' appears somewhat premature, given a number of probate cases not discussed by Professor Spitko …
Stripping Away Employment Rights: The Unconscionability Of Class Waivers In Employment Agreements, Nikki Clark
Stripping Away Employment Rights: The Unconscionability Of Class Waivers In Employment Agreements, Nikki Clark
Journal of Dispute Resolution
As support for arbitration clauses began to grow, employers began to include arbitration clauses in employment agreements because it lowers the cost and uncertainty of litigation. Many of these arbitration clauses contain waivers of the right to class action. This Note argues that a waiver of collective action, whether express or unknowing, should be per se unconscionable to provide consistency and to resolve the inconsistency between and even within federal circuits.
Constructions Of Arbitration's Informalism: Autonomy, Efficiency, And Justicesymposium, Hiro N. Aragaki
Constructions Of Arbitration's Informalism: Autonomy, Efficiency, And Justicesymposium, Hiro N. Aragaki
Journal of Dispute Resolution
In the wake of a recent three-part series by the New York Times, arbitration is now back in the eye of the storm. The leading critique of arbitration, especially in the consumer and employment space, is that it is unjust both in the sense that it does not comport with basic notions of procedural fairness and/or because it cannot be expected to produce outcomes we would consider substantively just. For example, procedure in arbitration is dictated largely by contract rather than by mandatory rules that have been vetted by public bodies entrusted with safeguarding procedural values. Arbitrators are not bound …
The Historical Basis Of Securities Arbitration As An Investor Protection Mechanism Symposium, Jill Gross
The Historical Basis Of Securities Arbitration As An Investor Protection Mechanism Symposium, Jill Gross
Journal of Dispute Resolution
This article describes a history of securities arbitration, and uncovers the original purpose of designating arbitration to resolve investor disputes. This article argues that both investors and the industry have disregarded this underlying purpose, causing them to view securities arbitration through a distrusting, critical lens. Rather than cynically viewing securities arbitration as a forum created by and favoring industry players, investors should view arbitration as a central and critical component in a system of investor protection. Likewise, rather than promoting mandatory arbitration as desirable because of its speed and economies, broker-dealers and SIFMA should advertise the investor-protective benefits of the …
The Idea And The Use Of Mediation And Collaborative Dispute Resolution In Due Process Disputes, Katherine Mcmurtrey
The Idea And The Use Of Mediation And Collaborative Dispute Resolution In Due Process Disputes, Katherine Mcmurtrey
Journal of Dispute Resolution
This Comment discusses the future of alternative dispute resolution in special education conflicts by first examining a brief history of the IDEA and the areas it covers. Due process complaints under the IDEA and mediation as a solution to due process complaints will then be addressed. Then, it will focus on mediation and its impact on parents and schools, particularly the advantages and disadvantages of mediation, and the presence of attorneys in mediation. Finally, it will look towards collaborative law, when two attorneys and their clients collaborate to reach an agreement, and the future of collaborative dispute resolution in the …
A User's Guide To Easier Flood Insurance: A Look Into The History Of Flood Insurance Claims Dispute Processing And Suggestions For Improvement, Courtney Lauer
A User's Guide To Easier Flood Insurance: A Look Into The History Of Flood Insurance Claims Dispute Processing And Suggestions For Improvement, Courtney Lauer
Journal of Dispute Resolution
In 2012, Superstorm Sandy alone produced 144,484 claims for federal flood insurance coverage under the National Flood Insurance Program (NFIP). The NFIP was created under the National Flood Insurance Act of 1968, and was designed to limit the impact of flooding on both private and public structures. The NFIP’s self-stated goal was to decrease the socioeconomic effects of natural disasters by encouraging the purchase of flood insurance and general risk insurance.