Dispute Resolution and Arbitration Commons^™

Getting Good Results For Clients By Building Good Working Relationships With 'Opposing Counsel', John M. Lande

Faculty Publications

Lawyers’ relationships with their “opposing counsel” make a big difference in how well they handle their cases. “Opposing counsel” often do oppose each other, sometimes quite vigorously, though they also regularly cooperate with each other. In the normal course of litigation, lawyers need to cooperate on many procedural matters. In some cases, they also cooperate to achieve their respective clients’ substantive interests. If the lawyers have a bad relationship, the case is likely to be miserable for everyone involved. If they have a good relationship, they are more likely to agree on procedural matters, exchange information informally, take reasonable negotiation …

Defining Civil Disputes: Lessons From Two Jurisdictions, Camille Cameron, Elizabeth Thornburg

Articles, Book Chapters, & Popular Press

Court systems have adopted a variety of mechanisms to narrow the issues in dispute and expedite litigation. This article analyses the largely unsuccessful attempts in two jurisdictions - the United States and Australia - to achieve early and efficient issue identification in civil disputes. Procedures that rely on pleadings to provide focus have failed for centuries, from the common (English) origins of these two systems to their divergent modern paths. Case management practices that are developing in the United States and Australia offer greater promise in the continuing quest for early, efficient dispute definition. Based on a historical and contemporary …

Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux

Publications

No abstract provided.

Why Adr Programs Aren’T More Appealing: An Empirical Perspective, Michael Heise

Cornell Law Faculty Publications

Standard law and economic theory suggests that litigating parties seeking to maximize welfare will participate in alternative dispute resolution (ADR) programs if they generate a surplus. ADR programs claim to generate social surplus partly through promoting settlements and reducing case disposition time. Although most associate ADR programs with trial courts, a relatively recent trend involves appellate court use of ADR programs. The emergence of court-annexed ADR programs raises a question. Specifically, if ADR programs achieve their goals of promoting settlements and reducing disposition time, why do some courts find it necessary to impose ADR participation? Attention to ADR’s ability to …

Legal Bargaining Theory's New "Prospecting" Agenda: It May Be Social Science, But Is It News?, Robert J. Condlin

Faculty Scholarship

In the good old days legal bargaining scholarship was based mostly on negotiator war stories exuberantly told. The social-scientific study of the subject did not begin in earnest until the nineteen-seventies. Since then, however, the literature of storytelling has gone into a pronounced eclipse and social-scientific study is now the principal scholarly game in town. This article questions the wisdom of this shift, almost seismic in its proportions, and argues that it is too soon to jump on the social science bandwagon. Discussion focuses on the uses made of the Prospect Theory of Daniel Kahneman and Amos Tversky and the …

Hearings, Mark Spottswood

Faculty Working Papers

This article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared—but false—assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing their testimony in person than if the judges were to review …

Interlocutory Review By Agreement Of The Parties: A Preliminary Analysis, James Pfander, Dave Pekarek-Krohn

Faculty Working Papers

Although the nineteenth century's final judgment rule no longer represents an absolute barrier to interlocutory appellate review, scholars disagree about what should take its place. Some favor a regime of discretionary interlocutory review, with power conferred on appellate courts to select issues that warrant intervention. Others reject discretionary review as a waste of appellate resources and call upon the rule makers to identify specific categories of non-final orders that always warrant review. While the Supreme Court's collateral order doctrine bears some similarity to this process of categorization, the Court may have called a halt to the judicial recognition of new …

Collateral Review Of Remand Orders: Reasserting The Supervisory Role Of The Supreme Court, James Pfander

Faculty Working Papers

Although some might consider the appellate review of remand orders as something of a jurisdictional backwater, recent developments suggest that the rules need attention. The Supreme Court has decided no fewer than four cases in the past few years and has failed to develop a persuasive framework. Indeed, one member of the Court, Justice Breyer, has invited "experts" to solve the problem.

In this essay, I suggest that the solution lies in the Court's own hands. Rather than proposing legislative or rulemaking solutions, I call on the Court to re-invigorate its supervisory powers and conduct direct review of district court …

The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students For Real World Lawyering, John M. Lande, Jean R. Sternlight

Faculty Publications

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 and proposes a modest menu of reforms that interested faculty and law schools can largely achieve without investing substantial additional resources.This Article emphasizes the special contributions that alternative dispute resolution (ADR) can provide to legal education more generally. ADR instruction is an important corrective to a curriculum that routinely conveys the erroneous implication that …

The Story Of Bivens V. Six Unknown-Named Agents Of The Federal Bureau Of Narcotics, James E. Pfander

Faculty Working Papers

In Bivens v. Six Unknown-Named Agents of the Federal Bureau of Narcotics, the Supreme Court recognized the right of an individual to sue federal government officials for a violation of constitutional rights. Drawing on interviews with some of the participants, including Webster Bivens himself and one of the agents who conducted the search, this chapter in the forthcoming book Federal Courts' Stories describes the events that led to the litigation and the complex array of factors that informed the Court's approach to the case. After placing the Bivens decision in context, the chapter evaluates the competing narratives that have grown …

The Death Of The American Trial, Robert P. Burns

Faculty Working Papers

This short essay is a summary of my assessment of the meaning of the "vanishing trial" phenomenon. It addresses the obvious question: "So what?" It first briefly reviews the evidence of the trial's decline. It then sets out the steps necessary to understand the political and social signficance of our vastly reducing the trial's importance among our modes of social ordering. The essay serves as the Introduction to a book, The Death of the American Trial, soon to be published by the University of Chicago Press.

Rethinking Bivens: Legitimacy And Constitutional Adjudication, James E. Pfander, David Baltmanis

Faculty Working Papers

The Supreme Court's decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics provides an uncertain framework for the enforcement of constitutional rights against the federal government. Rather than recognizing a federal common law right of action for use in every case, the Court views itself as devising actions on a case-by-case basis in light of a range of factors. Critics on all sides question the Court's approach, doubting either its power to fashion federal common law or the tendency of its case-by-case analysis to create gaps in constitutional enforcement. Particularly when compared with actions under …

Consumer Harm Acts? An Economic Analysis Of Private Actions Under State Consumer Protection Acts, Henry N. Butler, Jason S. Johnston

Faculty Working Papers

State Consumer Protection Acts (CPAs) were adopted in the 1960s and 1970s to protect consumers from unfair and deceptive practices that would not be redressed but for the existence of the acts. In this sense, CPAs were designed to fill existing gaps in market, legal and regulatory protections of consumers. CPAs were designed to solve two simple economic problems: 1) individual consumers often do not have the incentive or means to pursue individual claims against mass marketers who engage in unfair and deceptive practices; and, 2) because of the difficulty of establishing elements of either common law fraud or breach …

When The Music Stops, Why Not Require Certain Title Vii Plaintiffs To Find A Chair On Which To Rest Their Complaint?, 42 J. Marshall L. Rev. 505 (2009), Catherine R. Caifano

UIC Law Review

No abstract provided.

Is The Door Open Or Closed? Evaluating The Future Of The Federal Medical Peer-Review Privilege, 42 J. Marshall L. Rev. 561 (2009), Ghazal Sharifi

UIC Law Review

No abstract provided.

Why The Chinese Public Prefer Administrative Petitioning Over Litigation, Taisu Zhang

Faculty Scholarship

In recent years, the Chinese public, when facing disputes with government officials, have preferred a non-legal means of resolution, the Xinfang system, over litigation. Some scholars explain this by claiming that administrative litigation is less effective than Xinfang petitioning. Others argue that the Chinese have historically eschewed litigation and continue to do so habitually. This paper proposes a new explanation: Chinese have traditionally litigated administrative disputes, but only when legal procedure is not too adversarial and allows for the possibility of reconciliation through court-directed settlement. Since this possibility does not formally exist in modern Chinese administrative litigation, people tend to …

Challenges Facing Investment Disputes: Reconsidering Dispute Resolution In International Investment Agreements, Susan Franck, Karl P. Sauvant, Michael Chiswick-Patterson, Rainer Geiger, José E. Alvarez, M. Sornarajah, Patrick Juillard, Jeswald W. Salacuse, Giorgio Sacerdoti, Anna Joubin-Bret, Hugo Perezcano Díaz, Michael K. Tracton, Christoph Schreuer, Howard Mann, Katia Yannaca-Small, Barton Legum, Jan Paulsson, Asif H. Qureshi, Shandana Gulzar Khan, Christopher Brummer, Brian J. Rapier

Contributions to Books

This volume brings together significant contributions from leading voices in academia, the legal profession and government on the increasingly important topic of international investment and the legal system in which it operates. With the burgeoning size of international capital flows matched only by an explosion in international agreements intending to regulate the field, there is increasing potential for incoherence amongst and between treaties and arbitral decisions.

Appeals Mechanism in International Investment Disputes compiles, compares and contrasts the analysis and arguments of the leading scholars, practitioners and government officials on the future of the international investment law regime. Its special emphasis …

Litigation And The Optimal Combination Of Vague And Precise Clauses In Contracts, Alvaro E. Bustos

Faculty Working Papers

In this paper we determine the optimal combination of precise and vague clauses written in contracts when the parties face writing and enforcement costs, the second ones in the form of litigation. We show that the parties may prefer to write vague instead of precise clauses not only because they are cheaper to write but also because they are cheaper to enforce. We extend Battigalli and Maggi (2002) to model the decision of a principal who chooses clauses to describe the actions that an agent has to perform. As both players observe nature imperfectly they may call for a court …

Practical Insights From An Empirical Study Of Cooperative Lawyers In Wisconsin, John M. Lande

Faculty Publications

This article reports on a study of members of the Divorce Cooperation Institute (DCI), a group of Wisconsin lawyers who use a "Cooperative" process to provide a constructive and efficient negotiation process in divorce cases. The study involved in-depth telephone interviews and several surveys of DCI members. Although DCI members use this process only in divorce cases, it can be readily adapted for other types of cases.DCI's approach generally involves an explicit process agreement at the outset, based on principles of: (1) acting civilly, (2) responding promptly to reasonable requests for information, (3) disclosing all relevant financial information, (4) obtaining …

The Movement Toward Early Case Handling In Courts And Private Dispute Resolution, John M. Lande

Faculty Publications

This article identifies early case handling (ECH) as an important general phenomenon in dispute system design theory and practice, catalogs the major ECH processes, and urges practitioners and policymakers to encourage use of and experimentation with ECH processes when appropriate.The key element of ECH is that people intentionally exercise responsibility for handling the case from the outset. ECH processes in courts include early case management procedures, differentiated case management systems, early neutral evaluation, and other early alternative dispute resolution (ADR) processes. ECH in the private sector includes ADR pledges and contract clauses, early case assessment and ADR screening protocols, settlement …

Dealing Fairly With Estate And Trust Beneficiary Complaints, Robert Whitman

Faculty Articles and Papers

No abstract provided.

Integrating Investment Treaty Conflict And Dispute Systems Design, Susan Franck

Scholarly Articles in Law Reviews & Journals

With the debate on the renewal of the Trade Promotion Authority Act, the proper terms of investment treaties - including dispute resolution provisions - have become an issue of public scrutiny. In a so-called litigation explosion, investors resolve disputes against host governments through international arbitration mechanisms in investment treaties; and there is little evidence of reliance on other processes like mediation. This escalation has lead to a teething period where parties and non-parties have expressed divergent views as to the efficacy, efficiency and fairness of the dispute resolution process. With billions of dollars and sovereignty at stake, the dispute resolution …

Slides: Forest And Rangeland Planning, Nepa Analysis And Decisions, Glenn Casamassa

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Glenn Casamassa, Forest Supervisor, Arapahoe-Roosevelt National Forest

17 slides

Slides: Forests And Grasslands, Federico Cheever

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Professor Federico Cheever, University of Denver Sturm College of Law

30 slides

Slides: Nepa And Public Participation In Grazing Management On Federal Public Lands: The 40-Year Struggle, Joe Feller

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Joe Feller, College of Law, Arizona State University

22 slides

Currents In Water Resources Law And Policy: How Is “Prior” Coping With New Stresses? [Outline], A. Dan Tarlock, David H. Getches

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

3 pages.

Includes bibliographical references

"A. Dan Tarlock, Distinguished Professor of Law and Director, Program in Environmental and Energy Law, Chicago-Kent College of Law"

"David H. Getches, Dean and Raphael J. Moses Professor of Natural Resources Law, University of Colorado Law School"

A Decade Of Colorado Supreme Court Water Decisions, 1996-2006: Special Report, Colorado Foundation For Water Education

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Justice Greg Hobbs, Colorado Supreme Court

31 pages.

Includes color illustrations and map

"Acknowledgments: This special report highlights important features of Colorado Supreme Court water decisions handed down between 1996 and 2006. It contains excerpts from opinions authored by Justices Lohr, Vollack, Mullarkey, Kourlis, Hobbs, Martinez, Bender, Rice, Coats and Eid. It is adapted from an article that first appeared in The Water Report (www.thewaterreport.com), February 15, 2007, used with permission."

Slides: The Roadless Rules And The Roles Of States And Communities, Sharon Friedman

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Sharon Friedman, Director of Planning, USDA Forest Service, Rocky Mountain Region

13 slides

Slides: Dam Building And Removal On The Elwha: A Prototype Of Adaptive Mismanagement And A Tribal Opportunity, William H. Rodgers, Jr.

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: William H. Rodgers, Jr., Stimson Bullitt Professor of Environmental Law, University of Washington School of Law

77 slides

The Role Of Case Studies In Natural Resources Law [Summary], John Copeland Nagle

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

4 pages.

"John Nagle, Univ. of Notre Dame Law School" -- Agenda