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Articles 1 - 24 of 24
Full-Text Articles in Law
Integrating "Alternative" Dispute Resolution Into Bankruptcy: As Simple (And Pure) As Motherhood And Apple Pie?, Nancy A. Welsh
Integrating "Alternative" Dispute Resolution Into Bankruptcy: As Simple (And Pure) As Motherhood And Apple Pie?, Nancy A. Welsh
Nancy Welsh
Today, there can be little doubt that “alternative” dispute resolution is anything but alternative. Nonetheless, many judges, lawyers (and law students) do not truly understand the dispute resolution processes that are available and how they should be used. In the shadow of the current economic crisis, this lack of knowledge is likely to have negative consequences, particularly in those areas of practice such as bankruptcy and foreclosure in which clients, lawyers, regulators, and courts work under pressure, often with inadequate time and financial resources to permit careful analysis of procedural options. Potential negative effects can include: (1) impairment of a …
Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel
Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel
Nehal A. Patel
AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …
Lawyer, Form Thyself: Professional Identity Formation Strategies In Legal Education, Professional Responsibility, And Experiential Courses, Susan S. Daicoff
Lawyer, Form Thyself: Professional Identity Formation Strategies In Legal Education, Professional Responsibility, And Experiential Courses, Susan S. Daicoff
Susan Daicoff
Professional identity formation as a learning objective in law school may appear to be nontraditional and perhaps even innovative. While perhaps not a new concept, it is not typically an explicit goal of legal education. Empirical data finds that law school has demonstrable effects upon law students’ professional development; it also finds that certain nontraditional skills and competencies (or “soft skills”) make lawyers most effective. This article argues for explicit planning for and inclusion of professional identity development, including training in these nontraditional skills, in legal education. Professional identity encompasses one’s values, preferences, passions, intrinsic satisfactions, emotional intelligence, as well …
The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson
The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson
Hillary A Henderson
Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …
"Ancient" Wisdom: When East Meets West, Kenneth Fox, Joel Lee, Stephanie Mitchell, Vasudha Srinivasan
"Ancient" Wisdom: When East Meets West, Kenneth Fox, Joel Lee, Stephanie Mitchell, Vasudha Srinivasan
Kenneth H Fox
This article examines Eastern and Western "ancient wisdom" traditions and applies those traditions to cross-cultural negotiation practice.
Lessons From Teaching Students To Negotiate Like A Lawyer, John Lande
Lessons From Teaching Students To Negotiate Like A Lawyer, John Lande
John Lande
The legal education system is in a major crisis now, in part because law schools do not prepare students adequately to practice law. Law schools should do a better job of teaching negotiation, in particular, because it is a significant part of the work of virtually every practicing lawyer. This includes lawyers who handle civil and criminal matters and lawyers who do litigation as well as those who do transactional work. Negotiation is especially important because most litigated cases are settled and virtually all unstandardized transactions are negotiated. Most law school negotiation courses rely primarily or exclusively on simulations in …
Law And Negotiation: Necessary Partners Or Strange Bedfellows?, Nancy Schultz
Law And Negotiation: Necessary Partners Or Strange Bedfellows?, Nancy Schultz
Nancy Schultz
To what degree does legal authority dictate the outcomes of negotiations? Scholars have discussed the issue, and law students argue about it in their negotiation classes. A survey of practicing lawyers reveals that knowing the law is an important part of the preparation for negotiation, but that legal authority is not the primary determinant of negotiated outcomes in practice. Financial constraints, bargaining power, and negotiating skill are all reported as having a greater effect on negotiated outcomes than the law.
Venturing Home: Implementing Lessons From The Rethinking Negotiation Project, Kenneth H. Fox, Sharon Press
Venturing Home: Implementing Lessons From The Rethinking Negotiation Project, Kenneth H. Fox, Sharon Press
Kenneth H Fox
This article summarizes the lessons from a five year, four published volume, international "rethinking negotiation teaching" project, and then articulates the key principles that underlie a resulting "second generation" two-course negotiation sequence the authors designed and implemented. In addition to providing a conceptual framework for the courses, the article also includes detailed course descriptions and course syllabi.
Teaching Students To Negotiate Like A Lawyer, John Lande
Teaching Students To Negotiate Like A Lawyer, John Lande
John Lande
Teaching students to negotiate effectively is central to their thinking, acting, and being like good lawyers. Virtually all lawyers spend much of their time negotiating, whether they deal with disputes or transactions. So law school negotiation courses should provide the most realistic possible portrayal of legal negotiation. This essay is intended to help instructors plan and teach negotiation courses, recognizing that every course should be tailored to fit the interests, capabilities, resources, and constraints of the instructors and students. This essay argues that many lawyers engage in “ordinary legal negotiation” (OLN), which is distinct from “romantic” theories of positional and …
Integrating "Alternative" Dispute Resolution Into Bankruptcy: As Simple (And Pure) As Motherhood And Apple Pie, Nancy A. Welsh
Integrating "Alternative" Dispute Resolution Into Bankruptcy: As Simple (And Pure) As Motherhood And Apple Pie, Nancy A. Welsh
Nevada Law Journal
No abstract provided.
Integrating "Alternative" Dispute Resolution Into Bankruptcy: As Simple (And Pure) As Motherhood And Apple Pie?, Nancy A. Welsh
Integrating "Alternative" Dispute Resolution Into Bankruptcy: As Simple (And Pure) As Motherhood And Apple Pie?, Nancy A. Welsh
Faculty Scholarship
Today, there can be little doubt that “alternative” dispute resolution is anything but alternative. Nonetheless, many judges, lawyers (and law students) do not truly understand the dispute resolution processes that are available and how they should be used. In the shadow of the current economic crisis, this lack of knowledge is likely to have negative consequences, particularly in those areas of practice such as bankruptcy and foreclosure in which clients, lawyers, regulators, and courts work under pressure, often with inadequate time and financial resources to permit careful analysis of procedural options. Potential negative effects can include: (1) impairment of a …
Moving Beyond "Just" A Deal, A Bad Deal Or No Deal: How A Deal-Facilitator Engaged By The Parties As "Counsel To The Deal" Can Help Them Improve The Quality And Sustainability Of The Outcome, Manon Schonewille, Kenneth Fox
Moving Beyond "Just" A Deal, A Bad Deal Or No Deal: How A Deal-Facilitator Engaged By The Parties As "Counsel To The Deal" Can Help Them Improve The Quality And Sustainability Of The Outcome, Manon Schonewille, Kenneth Fox
Kenneth H Fox
Mediation is commonly characterized as one of several core ADR processes. The vast majority of the mediation literature focuses on dispute settlement and resolution. However, relatively little attention is paid to the transactional potential of business mediation - ways in which this ADR process can assist the parties to build better deals. This article describes mediation as a deal-facilitation process.
The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students For Real World Lawyering, John Lande, Jean R. Sternlight
The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students For Real World Lawyering, John Lande, Jean R. Sternlight
John Lande
This Article briefly reviews the long history of critiques of legal education that highlight the failure to adequately prepare students for what they will and should do as attorneys. It takes a sober look at the hurdles reformers face when trying to make significant curricular changes. Recognizing these substantial barriers, it proposes a modest and feasible menu of reforms that interested faculty and law schools can achieve without investing substantial additional resources. The proposals are not intended as a comprehensive package to be implemented on an all-or-nothing basis but as a set of options to be selected by individual faculty …
Lessons From The Field: First Impressions From Second Generation Negotiation Teaching, Kenneth Fox, Manon Schonewille, Esra Çuhadar-Gürkaynak
Lessons From The Field: First Impressions From Second Generation Negotiation Teaching, Kenneth Fox, Manon Schonewille, Esra Çuhadar-Gürkaynak
Kenneth H Fox
In May, 2008, an international group of 50 negotiation scholars and teachers met in Rome, Italy, to launch a four year project to rethink negotiation theory and pedagogy. From its inception, the Rethinking Negotiation Teaching project (NT 2.0 project) has had two primary goals: to significantly advance our understanding of the negotiation process in all its complexity; and to improve how we teach others about negotiation. The first year of this four-year project focused on generating new ideas and approaches to negotiation scholarship and teaching. Some of this scholarship was published in the book Rethinking Negotiation Teaching and some in …
Reweaving The Fabric Of Society: Restorative Justice In The United States, Kenneth Fox
Reweaving The Fabric Of Society: Restorative Justice In The United States, Kenneth Fox
Kenneth H Fox
This article provides an overview of restorative justice practices in the United States. It offers a brief history of the field, articulates its underlying values, and describes its primary forms of practice. The purpose of this article is to introduce readers to an emerging and important way to re-think how citizens relate to one another and to the “state” when crime occurs.
Negotiation As A Post-Modern Process, Kenneth H. Fox
Negotiation As A Post-Modern Process, Kenneth H. Fox
Kenneth H Fox
Conventional pedagogy treats negotiation as a strategic and instrumental process. Yet, recent developments in our field suggest that our frame for teaching negotiation is overly limited. Second generation negotiation research and teaching must recognize this limitation and expand our frame to incorporate additional paradigms for understanding people and how they interact. This article suggests a different conception for negotiation research and teaching.
A Complete Property Right Amendment, John H. Ryskamp
A Complete Property Right Amendment, John H. Ryskamp
ExpressO
The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.
Explaining The Value Of Transactional Lawyering, Steven L. Schwarcz
Explaining The Value Of Transactional Lawyering, Steven L. Schwarcz
ExpressO
This article attempts, empirically, to explain the value that lawyers add when acting as counsel to parties in business transactions. Contrary to existing scholarship, which is based mostly on theory, this article shows that transactional lawyers add value primarily by reducing regulatory costs, thereby challenging the reigning models of transactional lawyers as “transaction cost engineers” and “reputational intermediaries.” This new model not only helps inform contract theory but also reveals a profoundly different vision than existing models for the future of legal education and the profession.
In Facetiis Verititas: How Improv Comedy Can Help Lawyers Get Some Chops, Steven Lubet
In Facetiis Verititas: How Improv Comedy Can Help Lawyers Get Some Chops, Steven Lubet
ExpressO
Lawyers can learn a lot from the theory of improvisational comedy, and it isn’t just a matter of thinking on your feet. As we will explain, the key concept in both disciplines is the creation of a new, temporary reality. In improvisation, the cast must draw the audience into sharing the constructed reality of the stage, such that they can actually “see” the objects and characters portrayed, without the use of props or costumes. In trial, the lawyer must draw the jury into sharing the re-constructed reality of past events, such that they “see” what happened, even though they were …
Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp
Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp
ExpressO
This brief comment suggests where the anti-eminent domain movement might be heading next.
Equal Justice From A New Perspective: The Need For A First-Year Clinical Course On Public Interest Mediation, David Dominguez
Equal Justice From A New Perspective: The Need For A First-Year Clinical Course On Public Interest Mediation, David Dominguez
Utah Law Review
It really is possible to deliver enough no-cost or low-cost legal problem solving services to provide equal justice. To get there, however, we need to experiment with new strategies and methods to achieve the goal, including the new skill of PIM. My hunch is that if first-year law students can prove to themselves in a clinical setting that public service lawyering can produce a multiplier effect for the greater public good, a new commitment to equal justice will emerge in the legal profession.
The Role Of International Arbitrators, Susan Franck
The Role Of International Arbitrators, Susan Franck
Articles in Law Reviews & Other Academic Journals
With the advent of the global economy, arbitration has become the preferred mechanism for resolving international disputes. Today international arbitrators resolve billions of dollars worth of disputes.' Arbitration has taken on such prominence in the international context that commentators express "little doubt that arbitration is now the first-choice method of binding dispute resolution" and has "largely taken over litigation."'
Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor
Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor
ExpressO
No abstract provided.
Interpersonal Dynamics, Joshua D. Rosenberg
Interpersonal Dynamics, Joshua D. Rosenberg
ExpressO
This article explains the importance of relationship skills to attorneys. It explains why, despite the significance of these skills to attorneys, law schools and law firms ignore them. It then explains how these skills can be taught in law school, and how a relation al perspective can become not simply an important part of the law, but also an important part of the lives of lawyers. It develops and supports an ap proach that develops the cognitive, behavioral, perceptual and emotional skills and awareness essential to both accurate communication and productive and meaningful relationships. This approach is quite different from …