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Improving Lawyers’ Judgment: Is Mediation Training De-Biasing?, Douglas N. Frenkel, James H. Stark Oct 2015

Improving Lawyers’ Judgment: Is Mediation Training De-Biasing?, Douglas N. Frenkel, James H. Stark

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When people are placed in a partisan role or otherwise have an objective they seek to accomplish, they are prone to pervasive cognitive and motivational biases. These judgmental distortions can affect what people believe and wish to find out, the predictions they make, the strategic decisions they employ, and what they think is fair. A classic example is confirmation bias, which can cause its victims to seek and interpret information in ways that are consistent with their pre-existing views or the goals they aim to achieve. Studies consistently show that experts as well as laypeople are prone to such biases, …

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No Alternative: Resolving Disputes Japanese Style, Eric Feldman Jan 2014

No Alternative: Resolving Disputes Japanese Style, Eric Feldman

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This article critiques the simple black/white categorisation of mainstream versus alternative dispute resolution, and argues that what is needed is a cartography of dispute resolution institutions that maps the full range of approaches and traces their interaction. It sketches the first lines of such a map by describing two examples of conflict resolution in Japan. Neither can justly be called “alternative”, yet neither fits the mould of what might be called mainstream or classical dispute resolution. One, judicial settlement, focuses on process; the other, compensating victims of the Fukushima disaster, engages a specific event. Together, they help to illustrate why …

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Shrinking Gideon And Expanding Alternatives To Lawyers, Stephanos Bibas Apr 2013

Shrinking Gideon And Expanding Alternatives To Lawyers, Stephanos Bibas

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This essay, written as part of a symposium at Washington and Lee Law School entitled Gideon at 50: Reassessing the Right to Counsel, argues that the standard academic dream of expanding the right to counsel to all criminal and major civil cases has proven to be an unattainable mirage. We have been spreading resources too thin, in the process slighting the core cases such as capital and other serious felonies that are the most complex and need the most time and money. Moreover, our legal system is overengineered, making the law too complex and legal services too expensive for …

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Advocacy Revalued, Geoffrey C. Hazard Jr., Dana A. Remus Jan 2011

Advocacy Revalued, Geoffrey C. Hazard Jr., Dana A. Remus

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A central and ongoing debate among legal ethics scholars addresses the moral positioning of adversarial advocacy. Most participants in this debate focus on the structure of our legal system and the constituent role of the lawyer-advocate. Many are highly critical, arguing that the core structure of adversarial advocacy is the root cause of many instances of lawyer misconduct. In this Article, we argue that these scholars’ focuses are misguided. Through reflection on Aristotle’s treatise, Rhetoric, we defend advocacy in our legal system’s litigation process as ethically positive and as pivotal to fair and effective dispute resolution. We recognize that advocacy …

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Mapping The World: Facts And Meaning In Adjudication And Mediation, Robert Rubinson Jan 2010

Mapping The World: Facts And Meaning In Adjudication And Mediation, Robert Rubinson

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This Article explores what is and what is not in adjudication and mediation, thus illuminating the profound differences between these two processes. The Article does this work in four parts. First, it offers an analysis of cognitive mapmaking and its inevitability in constructing meaning. It then explores how adjudication defines meaning in a particular way. This Article then conducts a comparable analysis of mediation. Finally, it focuses on the bridging function attorneys play between the worlds of mediation and adjudication.

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The Effect Of Judicial Expedience On Attorney Fees In Class Actions, Eric Helland, Jonathan Klick Jan 2007

The Effect Of Judicial Expedience On Attorney Fees In Class Actions, Eric Helland, Jonathan Klick

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Judges facing exogenous constraints on their pecuniary income have an incentive to reduce their workload to increase their private welfare. In the face of an increase in caseload, this incentive will induce judges to attempt to terminate some cases more rapidly. In class action cases, failing to grant an attorney fee request will delay termination. This conflict is likely to lead judges to authorize higher fees as court congestion increases. Using two data sets of class action settlements, we show that attorney fees are significantly and positively related to the congestion level of the court hearing the case.

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Rhetoric Of Disputes In The Courts, The Media, And The Legislature, Geoffrey C. Hazard Jr. Jan 2006

Rhetoric Of Disputes In The Courts, The Media, And The Legislature, Geoffrey C. Hazard Jr.

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No abstract provided.

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Aggregation On The Couch: The Strategic Uses Of Ambiguity And Hypocrisy, Stephen B. Burbank Jan 2006

Aggregation On The Couch: The Strategic Uses Of Ambiguity And Hypocrisy, Stephen B. Burbank

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In this Essay, Professor Burbank comments on the essays by Professors Nagareda and Issacharoff. Welcoming the opportunity to revisit the interplay between procedure and substantive law and the question of democratic accountability that Professor Nagareda’s essay presents, Professor Burbank concludes that the parts of that essay are greater than the whole. He finds that Professor Nagareda’s pursuit of unifying themes and a general normative theory leads to inconsistencies in classification between procedure and substance and to an impoverished vision of institutional legitimacy. Professor Burbank voices concern that this quest, which is also evident in the current draft of the American …

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Client Counseling, Mediation, And Alternative Narratives Of Dispute Resolution, Robert Rubinson Apr 2004

Client Counseling, Mediation, And Alternative Narratives Of Dispute Resolution, Robert Rubinson

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This article examines how litigation and mediation have distinct narrative structures and what these narratives say about counseling clients about mediation. In the narrative of litigation, parties struggle against one another in order to convince a decision maker of the truth of "what happened." This struggle is about more than designating liability; it is about enabling the decision-maker to restore social order and vindicate morality. In contrast, the narrative of mediation does not call upon the mediator to designate "truth" or "right" and "wrong." Rather, the mediator acts to enable parties to overcome and transform conflict through collaboration. In the …

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Class Action Reform, Qui Tam, And The Role Of The Plaintiff, Jill E. Fisch Oct 1997

Class Action Reform, Qui Tam, And The Role Of The Plaintiff, Jill E. Fisch

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No abstract provided.

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The Vanishing Precedent: Eduardo Meets Vacatur, Jill E. Fisch Jan 1994

The Vanishing Precedent: Eduardo Meets Vacatur, Jill E. Fisch

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No abstract provided.

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Interjurisdictional Preclusion, Full Faith And Credit And Federal Common Law: A General Approach, Stephen B. Burbank Jan 1986

Interjurisdictional Preclusion, Full Faith And Credit And Federal Common Law: A General Approach, Stephen B. Burbank

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No abstract provided.

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