Law Commons^™

Artificial Intelligence And Mediation Ethics, Zachary R. Calo

Cardozo Journal of Conflict Resolution

Artificial intelligence ("Al") presents many opportunities to improve the efficiency, effectiveness, and accessibility of mediation. More than that, it has potential to transform the nature of how mediation is practiced and what mediation is. While Al might not yet play a significant role in many mediations, there is widespread recognition that the technology is disrupting many established dispute resolution practices. What mediation will look like on the other side is unclear, but it will not be the same.

Technology And Victims' Compensation Systems: The Brumadinho Experience, Diego Faleck

Cardozo Journal of Conflict Resolution

The rupture of the B-I dam of the C6rrego do Feijio Mine, in Brumadinho, Minas Gerais, Brazil, owned by the company VALE S/A, which occurred on January 25, 2019, gave rise, from the point of view of civil liability, to a series of extrajudicial measures of socioeconomic reparation. These measures include the payment of emergency compensation to more than 100,000 people, and the implementation of an individual, optional, and voluntary compensation program for civil and labor claims, for the victims and their families. The compensation program was designed according to the principles and techniques of the evolving field of study …

What Mediation Romantics Can Learn From The Model T (Or Maybe The Chevrolet Trax), Nancy A. Welsh

Cardozo Journal of Conflict Resolution

When mediation was reintroduced to the U.S. in the 1970s, it was infused with a democracy-and-self-determination-enhancing, social justice ethos. As the process has been very successfully institutionalized, however, these ambitions have been scaled backalthough, at least arguably, certain "mediative elements" have actually been adopted (or coopted) by other procedural innovations. Perhaps it is time for those of us frustrated with the evolution of mediation to reconcile ourselves to the reality and value of a "basic" model of mediation designed for the sole purpose of getting parties from dispute to settlement-in much the same way that the basic model of a …

Addressing New York's Scaffolding Issue Through An Arbitration Framework, Jared Man

Cardozo Journal of Conflict Resolution

New York City is one of the most, if not the most, famous cities in the world. Whether it is the melting pot of cultures, the signature attitude of its residents, or the numerous attractions, people flock to New York to either see the city with their own eyes or end up moving here to become part of the city itself. However, one of New York's most notable features is the beautiful architecture it boasts. Every neighborhood comes with its own distinct feeling once you pass through it, which in large part has to do with kinds of buildings that …

Early Neutral Evaluation In Baseball Arbitration, Yakov Schwalb

Cardozo Journal of Conflict Resolution

In recent years, the contracts awarded to Major League Baseball ("MLB") players in free agency have been astronomical. In the 2023 offseason, Shohei Ohtani signed the largest contract in American sports history, a ten-year $700 million contract with the Los Angeles Dodgers. In the previous year, MLB teams spent over $3.5 billion on free agents. However, before a player is eligible for free agency, he can undergo a process called final offer arbitration ("FOA"). In this system, if a player and his professional baseball team are unable to reach an agreement for the player's salary for the upcoming season, the …

Squatters Squabbles: The Use Of Mediation To Provide Beneficial Solutions To Adverse Possession Claims In New Jersey, Bayla Zohn

Cardozo Journal of Conflict Resolution

In our society, law is a complex and ever-evolving field, constantly adapting to fit our needs. Yet, there are certain legal matters we would expect to have clear and obvious resolutions. Property ownership should be simple and unambiguous, governed by "established legal rules and precepts." Examine a deed, survey the stated legal owner of the tract of land, and your answer should be uncomplicated. Yet, there are a multitude of complex laws that allow individuals to obtain legal ownership of land in a seemingly illicit fashion.

The Rise Of General Jurisdiction Over Out-Of-State Enterprises In The United States, Peter Hay

Emory International Law Review

In June 2023, the U.S. Supreme Court continued its revision of personal jurisdiction law, in this case by refining, thereby perhaps expanding, the law of when a court may exercise general personal jurisdiction – that is, jurisdiction over all claims – over a non-resident person or an out-of-state enterprise. In Mallory v. Norfolk Southern Railway Co., it held in a 4+1:4 decision that, when a state requires a non-resident company to register to do business in the state and such registration constitutes consent to jurisdiction over all claims against it, such exercise is permitted. In reaching its conclusion, the Court …

Taiwan's Medical Injury Law In Action, Chih-Ming Liang, Robert B Leflar, Chih-Cheng Wu

Emory International Law Review

Taiwan’s healthcare system, lauded internationally for its universal insurance coverage, moderate costs, and high quality of care, has one significant group of detractors: its physicians. Overworked, squeezed financially by the nation’s global budgeting system’s annual payment restrictions, and oppressed by both criminal prosecutions and civil malpractice actions, doctors and hospitals raised criticisms that culminated in legislative reforms enacted in 2017 and 2022. Are the reforms making any difference?

This Article offers the first comprehensive examination in English of how Taiwan’s medical injury law works. The Article is based on interviews with judges, attorneys, physicians, scholars, and other citizens, literature reviews, …

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States, Rama Bankesly

Seattle University Law Review

After setting foot into the U.S., unaccompanied children must learn to navigate academic and legal systems while receiving little support and carrying the heavy burden of effects of trauma on their mental health. They need access to mental health care from qualified professionals, but as this Comment will explain, they systematically fail to receive care, as can be seen in cases like Doe v. Shenandoah Valley Juv. Ctr. Comm’n. In Shenandoah, an unaccompanied child arrived in the U.S. and was placed in a facility that failed to provide remotely adequate mental health care and in fact was subjected …

Rebalancing International Investment Law, Vera Korzun

Akron Law Faculty Publications

Several reform initiatives are currently ongoing seeking to cure international investment law from its inherent pro-investor bias. To achieve this goal, recent investment treaties contain enhanced provisions on the right to regulate and seek to increase investor compliance in such areas as environmental protection, sustainable development, and corporate social responsibility. Yet, how to reconcile the ongoing reform efforts at the international and regional levels seeking to create a new, rebalanced system of international investment law? How to achieve this proverbial system where interests of foreign investors are protected without encroaching on the rights of the host states? The answers to …

The Original Instagram: Whose Property Is It?, Sue Altmeyer

Akron Law Faculty Publications

This article examines why the “Original Creation and Transfer” test is a better approach than implied transfer when determining ownership of a social media account. The Original Creation and Transfer test promotes judicial economy, clarity, and predictability. It also has the advantages of a property rule, namely encouraging investment, reducing litigation, and allowing employee mobility. This test achieves the proper balance between worker and employer rights and yields fair results in test cases. Additionally, a uniform law should be created based on the Original Creation and Transfer test to help promote uniformity across jurisdictions.

Celebrating Michael Reisman: The Inner World Of Others - A Guiding Light For Indigenous Re-Empowerment, Siegfried Wiessner

Intercultural Human Rights Law Review

Michael Reisman is a beacon of light in the firmament of international law and jurisprudence. His retirement from his faculty position at the Yale Law School affords a welcome occasion to celebrate his work in the quest for a world public order of human dignity. Michael is the cherished leader of the New Haven School of Jurisprudence, an intellectual movement designed to combine the prescriptive purposes of the law with the empirical insights of the sciences to achieve the goal of the flourishing of human beings, through access by all to the processes of shaping and sharing all things humans …

Protection Of Cultural Property In Armed Conflict And Military Necessity, Fausto Pocar

Intercultural Human Rights Law Review

The protection of cultural property in armed conflict has been a matter for special consideration by customary and conventional international humanitarian law since its first expressions. The Hague Conventions of 1899 and 1907 already enunciated a principle of protection in this matter, as shown in particular by the Regulations concerning the laws and customs of war on land annexed to the fourth convention, which provided that in sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and …

State V. Pardoned Individual, 2024-Ohio-2969 (12th Dist.) – Appellant’S Brief, Joann Sahl

Akron Law Faculty Publications

This appellate brief submitted to the Court Of Appeals Twelfth Appellate District Of Ohio argues that the trial court erred in denying the sealing of defendant's pardoned conviction. It contends that an unconditional pardon should entitle the recipient to have the conviction sealed, aligning with the rehabilitative intent of a pardon. The brief emphasizes that denying the sealing undermines the purpose of the pardon and continues to impose collateral consequences on the individual. The appellant seeks a reversal of the trial court's decision, advocating for the sealing of the pardoned conviction to fully restore his rights and reputation

Against Algorithmic Auer Deference, Chad Squitieri

Scholarly Articles

Smart contracts (i.e., electronic agreements written in computer code) can resolve contractual disputes instantaneously, without resorting to court. For workers and consumers—whose lack of bargaining power often requires them to accept pre-drafted contracts on a take-it-or-leave-it basis—reducing the role that courts play in resolving contractual disputes can be problematic. While courts could deploy traditional interpretive doctrines (e.g., contra proferentem) to interpret vague contract language against the drafter’s interests, smart contracts can be programmed to interpret contract language in the drafting party’s favor. Because the drafting party knows that they will have the ability to interpret vague language in their own …

The Battle Over Diversity, Equity, And Inclusion And Critical Race Theory In Florida: A Case Study On The Stop W.O.K.E. Act, Grace Anne Castelin

Honors Undergraduate Theses

Accelerating from 2022 and continuing through 2024, the state of Florida has experienced significant policy changes, particularly within the realm of higher education and affairs of diversity, equity, and inclusion (DEI). Many progressive officials, experts, and activists assert arguments that the state is on the verge of evolving into an authoritarian regime while many illiberal policies are being produced through the Florida legislature and current executive leadership—social and economic sectors are consequently threatened in order to maintain political oppression. The Stop W.O.K.E. Act has served as a catalyst for shifting the state's political stance on DEI, culminating in a chain …

Shades Of Justice: Exploring Colorism In The Hispanic Community And Its Legal Battle For Equity, Christel A. Infante

Honors Undergraduate Theses

This thesis focuses on the racial disparity within the Hispanic and Latinx communities as injustices exist within the community and the workplace. Racial disparities in the United States have been a persistent and deeply rooted issue that has plagued the nation for centuries. Despite significant progress in civil rights and anti-discrimination legislation, disparities in areas such as education, employment, and criminal justice persist. Understanding the factors contributing to these disparities is essential for addressing systemic inequalities and fostering a more just society. The analysis of this thesis primarily focuses on the cases and ramifications of Hispanic persons within the workplace, …

Fair Cross Section And Tribal Jury Composition: Vawa 2022 Tribal Criminal Jurisdiction Series, Paula Hannaford-Agor, Steve Aycock

Faculty Publications

The Violence Against Women Reauthorization Act of 2013 (VAWA 2013) amended the Indian Civil Rights Act (ICRA) to ensure that non-Indian criminal defendants in Tribal courts have the right to a trial by an impartial jury that is drawn from sources that 1) “reflect a fair cross section of the community” and 2) “do not systematically exclude any distinctive group in the community, including non-Indians.” This requirement applies when a non-Indian who is criminally prosecuted in Tribal court faces possible imprisonment.

The implementation of these jury provisions has been a topic of discussion among the Inter-Tribal Working Group on Special …

Reimagining The Inclusive Jury, Anna Offit

Faculty Publications

At the height of the COVID-19 pandemic, everyday life for many Americans was upended. And yet, the jury trial remained viable — even vital. Faced with an era-defining public health disaster, courts innovated, embracing novel technologies and techniques to reimagine where and how justice might be made. But why did it take a pandemic to spur this kind of institutional creativity? Prior to the outbreak of COVID-19, people who were otherwise eligible to participate as jurors were routinely — and uncontroversially — struck or exempted from service due to limited mobility, vision and hearing loss, and caregiving responsibilities. Recent experience …

The Subsistence And Enforcement Of Copyright And Trademark Rights In The Metaverse, Cheng Lim Saw, Zheng Wen Samuel Chan

Research Collection Yong Pung How School Of Law

The metaverse has been widely hailed as a symbol of technological progress, presenting an immersive virtual realm that has the potential to transform how individuals engage in social and commercial activities. However, this conception of a borderless virtual world - which purportedly transcends the capabilities and reach of Web 2.0 - sits uncomfortably with the territorial nature of intellectual property rights. This chapter examines the complexities surrounding the subsistence and enforcement of intellectual property rights within the metaverse, with a specific focus on copyright and trademarks. Especial attention is paid to issues concerning choice of law and jurisdiction. Finally, the …

Similar Fact Evidence In Contractual Interpretation: Bhoomatidevi D/O Kishinchand Chugani Mrs Kavita Gope Mirwani V Nantakumar S/O V Ramachandra And Another [2023] Sghc 37, Calvin John Kaiwen Chirnside

Research Collection Yong Pung How School Of Law

In the recent Singapore High Court case of Bhoomatidevi d/o Kishinchand Chugani Mrs Kavita Gope Mirwani v Nantakumar s/o v Ramachandra and another [2023] SGHC 37, the claimant argued, inter alia, that evidence of a prior contract between the first defendant and a third party should be admitted to prove that the defendant had entered into a loan agreement with her in his personal capacity. Justice Lee Seiu Kin dismissed her claim, applying s. 14 of the Evidence Act.

Blue Carbon Law, Adam D. Orford

Scholarly Works

This Article explores the emerging law of blue carbon, defined as rules governing human interventions into Earth’s marine carbon cycles. Blue carbon law is of growing importance today as pressure mounts to incorporate coastal conservation and restoration activities into market-based carbon sequestration schemes, and as the planet’s deep oceans are evaluated for their carbon sequestration potential. The Article conceptualizes two broad trends in blue carbon law: the international law of carbon credit markets creating incentives to commodify and monetize blue carbon resources; and the responsive integration of commodification concepts into existing laws that already manage and influence blue carbon systems. …

National Identity And Economic Development In Market-Dominant Small Jurisdictions, Christopher M. Bruner

Scholarly Works

Small jurisdictions that are globally competitive in providing cross-border financial services—market-dominant small jurisdictions (MDSJs)—occupy fascinating and unique positions in global markets, reflecting the complexity of their linkages with major economies. This article explores how the distinctive features of MDSJs highlight important dimensions of the relationship between national identity and economic development. I review literatures that aim to explain how jurisdictions behave in the economic context, focusing on concepts of nationalism, national identity, and nation branding, and how such phenomena might impact one another. I then assess their application to the relationship between national identity and economic development in MDSJs, where …

Another Round For Petrella V. Mgm, Laches, And Raging Bull: Resolving The Circuit Split Over Copyright’S Statute Of Limitations, David E. Shipley

Scholarly Works

There is a split between the Second Circuit and the Ninth and Eleventh Circuits over the interpretation and application of the Copyright Act’s three-year statute of limitations. The disagreement is about whether it bars a copyright infringement plaintiff from recovering for infringing acts occurring outside the statute’s three-year window. The Second Circuit stated in 2020 in Sohm v. Scholastic that the U.S. Supreme Court explicitly delimited damages to the three years prior to the commencement of an infringement action. However, the Ninth Circuit in Starz Entertainment in 2022 and the Eleventh Circuit Nealy v. Warner Chappell Music in 2023 both …

Gender-Based Violence And Harassment At Sea, Desiree Leclercq

Scholarly Works

This Symposium contribution assesses the ability of international law to evolve to offer essential protections for workers in an increasingly globalized world. It focuses on protections for women seafarers, specifically around gender-based violence and harassment on board vessels. Even though it is the world’s oldest transnational sector, seafaring remains overwhelmingly male-dominated. Consequently, international law was not initially conceived with women seafarers in mind. Now that women have broken into the maritime profession, they count on international law to evolve in kind. Notwithstanding, they continue to face sexist, if not violent, workplaces, and report high incidents of gender-based violence and harassment …

Survey Of Capital Cases In Georgia, Jessica Heywood

Scholarly Works

This Article examines five cases decided during the Survey period: two decisions by the Supreme Court of Georgia and three decisions by federal courts involving Georgia defendants. The Georgia Supreme Court cases are a direct appeal and a habeas appeal. All three federal cases are habeas petitions by Georgia state prisoners. We included federal cases because they involve significant points of law and illustrate the United States Court of Appeals for the Eleventh Circuit’s continued lax oversight of habeas claims, decades after the passage of the Antiterrorism and Effective Death Penalty Act (AEDPA) by Congress. The small number of cases …

The Harlan Court: A Constitutional Alternate History, H. Jefferson Powell

Faculty Scholarship

Walter Dellinger shared the widespread perception that the Burger Court was characterized by “rootless activism” rather than principled constitutional adjudication, and for him this put in question the legitimacy even of decisions that reached outcomes he thought politically or morally desirable. To explain what was wrong with such decisions, he often imagined the Court as it might have been if Justice John Marshall Harlan, who died in 1971, had lived another decade, and inspired an era of constitutional decisions deeply rooted in constitutional tradition and characterized by careful adherence to legal method. This Essay seeks to explain Dellinger’s idea and …