Law Commons^™

Arbitration's Counter-Narrative: The Religious Arbitration Paradigm, Michael Helfand

Michael A Helfand

Arbitration theory and doctrine is dominated by an overarching narrative that conceptualizes arbitration as an alternative to litigation. Litigation, one the one hand, is more procedurally rigorous, but takes longer and costs more; arbitration, on the other hand, is faster and cheaper, but provides fewer procedural safeguards. But notwithstanding these differences, both arbitration and litigation ultimately serve the same purpose: resolving disputes. Indeed, this narrative has been pervasive, becoming entrenched not only in recent Supreme Court decisions, but also garnering support from both arbitration critics and supporters alike.

This Article, however, contends that this exclusive focus on arbitration’s standard narrative …

Managing Construction Conflict: Unfinished Revolution, Continuing Evolution, Thomas Stipanowich

Thomas J. Stipanowich

Two decades ago many believed we were experiencing a “Quiet Revolution” in the way conflict was managed, and nowhere was this more true than in the construction sector. Frustration with the costs, delays, risks and limitations of lawyer-driven adjudication prompted growing attention to informal methods aimed at early resolution of disputes, with those who “owned” the dispute back in the driver’s seat. A smorgasbord of options for preventing, managing and resolving conflict was suddenly on the table. There were strategies aimed at the very roots of conflict, including contractual terms aimed at promoting collaboration and reducing the chance of serious …

Living With Adr: Evolving Perceptions And Use Of Mediation, Arbitration And Conflict Management In Fortune 1,000 Corporations, Thomas Stipanowich, Ryan Lamare

Thomas J. Stipanowich

As attorneys for the world’s most visible clients, corporate counsel played a key role in the transformation of American conflict resolution in the late Twentieth Century. In 1997 a survey of Fortune 1,000 corporate counsel provided the first broad-based picture of conflict resolution processes within large companies. In 2011, a second landmark survey of corporate counsel in Fortune 1,000 companies captured a variety of critical changes in the ways large companies handle conflict. Comparing their responses to those of the mid-1990s, clear and significant evolutionary trends are observable, including a further shift in corporate orientation away from litigation and toward …

Breathe Deeply: The Tort Of Smokers' Battery, Irene Scharf

Irene Scharf

This Article explores the long and faltering history of attempts to impose liability on tobacco product manufactures. Part II traces the manufacturers' historical and current actions of targeting youth through both promotions and deceptive advertising. Part III argues in favor of an expanded cause of action against the manufacturers for the intentional tort of battery. Part IV discusses the prospect of awards of punitive damages in these cases, and the Epilogue summarizes other advantages of the battery cause of action.

I'Ll Huff And I'Ll Puff - But Then You'll Blow My Case Away: Dealing With Dismissed And Bad-Faith Defendants Under California's Anti-Slapp Statute, Jeremiah Ho

Jeremiah A. Ho

This Article will demonstrate that, despite efforts to recognize SLAPPs and to safeguard our legal process from abuses, SLAPP suits and their underlying interference with the legitimate exercise of the right to petition can often engender new ways of creeping back onto the legal stage to wreak havoc on the private citizen - that the devious, shape-shifting Big Bad Wolf of First Amendment rights can return to reprise its role as the subversive villain and to trot unsuspecting litigants out to slaughter. After an introduction into the general world of SLAPPs and the specific history behind California's section 425.16, this …

In Quest Of The Arbitration Trifecta, Or Closed Door Litigation?: The Delaware Arbitration Program, Thomas Stipanowich

Thomas J. Stipanowich

The Delaware Arbitration Program established a procedure by which businesses can agree to have their disputes heard in an arbitration proceeding before a sitting judge of the state’s highly regarded Chancery Court. The Program arguably offers a veritable trifecta of procedural advantages for commercial parties, including expert adjudication, efficient case management and short cycle time and, above all, a proceeding cloaked in secrecy. It also may enhance the reputation of Delaware as the forum of choice for businesses. But the Program’s ambitious intermingling of public and private forums brings into play the longstanding tug-of-war between the traditional view of court …

Litigating Religion, Michael A. Helfand

Michael A Helfand

This article considers how parties should resolve disputes that turn on religious doctrine and practice – that is, how people should litigate religion. Under current constitutional doctrine, litigating religion is generally the task of two types of religious institutions: first, religious arbitration tribunals, whose decisions are protected by arbitration doctrine, and religious courts, whose decision are protected by the religion clauses. Such institutions have been thrust into playing this role largely because the religion clauses are currently understood to prohibit courts from resolving religious questions – that is, the “religious question” doctrine is currently understood to prohibit courts from litigating …

Bioacoustical Warfare: Winter V. Nrdc And False Choices Between Wildlife And Technology, Matthew Axtell

Matthew Axtell

No abstract provided.

Law In The Shadow Of Bargaining: The Feedback Effect Of Civil Settlements, Ben Depoorter

Ben Depoorter

Lawmakers, courts, and legal scholars often express concern that settlement agreements withhold important information from the public. This Essay identifies, to the contrary, problematic issues involving the availability of information on non-representative settlements. The theoretical and empirical evidence presented in this Essay demonstrates that, despite the widespread use of nondisclosure agreements, information on settlements is distributed both inside and outside legal communities, reaching actors through various channels including the oral culture in legal communities, specialized reporters, professional interest organizations, and media coverage. Moreover, information on private settlement agreements circulates more widely if the agreed compensation in a given settlement exceeds …

Lincoln's Lessons For Lawyers, Thomas J. Stipanowich

Thomas J. Stipanowich

Professor Stipanowich discusses lessons lawyers can learn from Abraham Lincoln.

Arbitration: The "New Litigation", Thomas J. Stipanowich

Thomas J. Stipanowich

Today, binding arbitration procedures are employed in a wider variety of contracts than at any time in our nation's history, and arbitration has become a wide-ranging surrogate for court trial of civil disputes. As a result, arbitration is subjected to unprecedented stresses and strains, and it is fair to say that arbitration has never been subject to wider criticism. Once advocates promoted arbitration as a means of avoiding the contention, cost and expense of court trial; economy, efficiency and the opportunity to fashion true alternatives to litigation are still associated with conventional perceptions of arbitration. Yet today business arbitration is …

Arbitration And Choice: Taking Charge Of The 'New Litigation', Thomas J. Stipanowich

Thomas J. Stipanowich

Despite meaningful efforts to promote better practices and ensure quality among arbitrators and advocates, criticism of American arbitration is at a crescendo. Much of this criticism stems from the fact that arbitration under standard procedures has taken on the trappings of litigation - extensive discovery and motion practice, highly contentious advocacy, long cycle time and high cost. Paradoxically, concerns about the absence of appeal on the merits in arbitration have caused some to craft provisions calling for judicial review for errors of law or fact in awards. It is time to return to fundamentals in American arbitration. Those who seek …

Beyond Arbitration: Innovation And Evolution In The United States Construction Industry, Thomas J. Stipanowich

Thomas J. Stipanowich

Disagreement among contracting parties has a rich tradition in the construction industry, which has been at the forefront of creating and experimenting with alternatives to litigation. In this article, Professor Stipanowich examines traditional alternatives to litigation utilized by the construction industry, including summary adjudication by design professionals, arbitration, mediation, minitrial, dispute review boards, early neutral evaluation, and partnering. After analyzing the results from the 1991 ABA-sponsored survey on dispute resolution in the construction industry, the author presents data from the 1994 Multidisciplinary Study on Dispute Avoidance and Resolution in the Construction Industry, a landmark study of which the author was …

Rethinking American Arbitration, Thomas J. Stipanowich

Thomas J. Stipanowich

In this 1987 article, Professor Stipanowich extensively analyzes data from an unprecedented broad-based survey on contract-based commercial arbitration in the United States. The study, based on a survey by the ABA Forum on the Construction Industry, provides considerable insight into experiences and perceptions of American attorneys regarding arbitration and litigation of construction and engineering disputes. It also summarizes and compares data developed in earlier studies of arbitration practice and procedure and suggests possible new directions for arbitration procedures.