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Articles 1 - 20 of 20
Full-Text Articles in Dispute Resolution and Arbitration
The Relational Contingency Of Rights, Gideon Parchomovsky, Alex Stein
The Relational Contingency Of Rights, Gideon Parchomovsky, Alex Stein
All Faculty Scholarship
In this Article, we demonstrate, contrary to conventional wisdom, that all rights are relationally contingent. Our main thesis is that rights afford their holders meaningful protection only against challengers who face higher litigation costs than the rightholder. Contrariwise, challengers who can litigate more cheaply than a rightholder can force the rightholder to forfeit the right and thereby render the right ineffective. Consequently, in the real world, rights avail only against certain challengers but not others. This result is robust and pervasive. Furthermore, it obtains irrespectively of how rights and other legal entitlements are defined by the legislator or construed by …
The Machinery Of Criminal Justice, Stephanos Bibas
The Machinery Of Criminal Justice, Stephanos Bibas
All Faculty Scholarship
Two centuries ago, the American criminal justice was run primarily by laymen. Jury trials passed moral judgment on crimes, vindicated victims and innocent defendants, and denounced the guilty. But over the last two centuries, lawyers have taken over the process, silencing victims and defendants and, in many cases, substituting a plea-bargaining system for the voice of the jury. The public sees little of how this assembly-line justice works, and victims and defendants have largely lost their day in court. As a result, victims rarely hear defendants express remorse and apologize, and defendants rarely receive forgiveness. This lawyerized machinery has purchased …
The Effect Of Conflicting Moral And Legal Rules On Bargaining Behavior: The Case Of Divorce, Tess Wilkinson-Ryan, Jonathan Baron
The Effect Of Conflicting Moral And Legal Rules On Bargaining Behavior: The Case Of Divorce, Tess Wilkinson-Ryan, Jonathan Baron
All Faculty Scholarship
No abstract provided.
Negotiating Divorce: Gender And The Behavioral Economics Of Divorce Bargaining, Tess Wilkinson-Ryan, Deborah Small
Negotiating Divorce: Gender And The Behavioral Economics Of Divorce Bargaining, Tess Wilkinson-Ryan, Deborah Small
All Faculty Scholarship
No abstract provided.
Restorative Processes & Doing Justice, Paul H. Robinson
Restorative Processes & Doing Justice, Paul H. Robinson
All Faculty Scholarship
This essay argues that, while many restorative processes are quite valuable, there is the potential for their use to produce results that conflict with the community's shared intuitions of justice and to thereby undermine the criminal law's moral credibility. Because such moral credibility can have practical crime-control value, it ought not be undermined unless the crime-control benefits of doing so clearly outweigh the costs. In practice, it is entirely possible to rely upon restorative processes in ways that avoid injustice and that assure justice is done.
Plea Bargaining Outside The Shadow Of Trial, Stephanos Bibas
Plea Bargaining Outside The Shadow Of Trial, Stephanos Bibas
All Faculty Scholarship
Plea-bargaining literature predicts that parties strike plea bargains in the shadow of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes. Agency costs; attorney competence, compensation, and workloads; resources; sentencing and bail rules; and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments: overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems but sometimes overcompensate. The …
The "Public Menace" Of Blight: Urban Renewal And The Private Uses Of Eminent Domain, Wendell E. Pritchett
The "Public Menace" Of Blight: Urban Renewal And The Private Uses Of Eminent Domain, Wendell E. Pritchett
All Faculty Scholarship
No abstract provided.
Meeting By Signals, Playing By Norms: Complementary Accounts Of Non-Legal Cooperation In Institutions, Edward B. Rock, Michael L. Wachter
Meeting By Signals, Playing By Norms: Complementary Accounts Of Non-Legal Cooperation In Institutions, Edward B. Rock, Michael L. Wachter
All Faculty Scholarship
No abstract provided.
Human Rights, Civil Wrongs And Foreign Relations: A "Sinical" Look At The Use Of U.S. Litigation To Address Human Rights Abuses Abroad, Jacques Delisle
Human Rights, Civil Wrongs And Foreign Relations: A "Sinical" Look At The Use Of U.S. Litigation To Address Human Rights Abuses Abroad, Jacques Delisle
All Faculty Scholarship
No abstract provided.
Teaching Corporate Governance Through Shareholder Litigation, Jill E. Fisch
Teaching Corporate Governance Through Shareholder Litigation, Jill E. Fisch
All Faculty Scholarship
No abstract provided.
Incentives To Settle Under Joint And Several Liability: An Empirical Analysis Of Superfund Litigation, Howard F. Chang, Hilary Sigman
Incentives To Settle Under Joint And Several Liability: An Empirical Analysis Of Superfund Litigation, Howard F. Chang, Hilary Sigman
All Faculty Scholarship
Congress may soon restrict joint and several liability for cleanup of contaminated sites under Superfund. We explore whether this change would discourage settlements and is therefore likely to increase the program 's already high litigation costs per site. Recent theoretical research by Kornhauser and Revesz finds that joint and several liability may either encourage or discourage settlement, depending on the correlation of outcomes at trial across defendants. We extend their two-defendant model to a richer framework with N defendants. This extension allows us to test the theoretical model empirically using data on Superfund litigation. We find that joint and several …
Judgment Proofing, Bankruptcy Policy, And The Dark Side Of Tort Liability, Charles W. Mooney Jr.
Judgment Proofing, Bankruptcy Policy, And The Dark Side Of Tort Liability, Charles W. Mooney Jr.
All Faculty Scholarship
No abstract provided.
Of False Teeth And Biting Critiques: Jones V. Fisher In Context, Regina Austin
Of False Teeth And Biting Critiques: Jones V. Fisher In Context, Regina Austin
All Faculty Scholarship
No abstract provided.
Assessing Consensus: The Promise And Performance Of Negotiated Rulemaking, Cary Coglianese
Assessing Consensus: The Promise And Performance Of Negotiated Rulemaking, Cary Coglianese
All Faculty Scholarship
Over its thirteen year history, the negotiated rulemaking process has yielded only thirty-five final administrative rules. By comparison, the federal government publishes over 3,000 final rules each year through the ordinary notice-and- comment process. Why have federal agencies relied so little on negotiated rulemaking? I examine this question by assessing the impact of negotiating rulemaking on its two major purposes: (1) reducing rulemaking time; and (2) decreasing the amount of litigation over agency rules. My analysis suggests that the asserted problems used to justify negotiated rulemaking have been overstated and that the limitations of negotiated rulemaking have been understated. Negotiated …
Cross-Cultural Commerce In Shakespeare's The Merchant Of Venice, Anita L. Allen, Michael R. Seidl
Cross-Cultural Commerce In Shakespeare's The Merchant Of Venice, Anita L. Allen, Michael R. Seidl
All Faculty Scholarship
No abstract provided.
Bargaining And The Division Of Value In Corporate Reorganization, Howard F. Chang, Lucian A. Bebchuk
Bargaining And The Division Of Value In Corporate Reorganization, Howard F. Chang, Lucian A. Bebchuk
All Faculty Scholarship
No abstract provided.
Tort Law As A Comparative Institution, Claire Oakes Finkelstein
Tort Law As A Comparative Institution, Claire Oakes Finkelstein
All Faculty Scholarship
No abstract provided.
Developments In Law - Toxic Waste Litigation, Howard F. Chang
Developments In Law - Toxic Waste Litigation, Howard F. Chang
All Faculty Scholarship
No abstract provided.
Establishment Of Bargaining Rights Without An Nlrb Election, Howard Lesnick
Establishment Of Bargaining Rights Without An Nlrb Election, Howard Lesnick
All Faculty Scholarship
No abstract provided.
State-Court Injunctions And The Federal Common Law Of Labor Contracts: Beyond Norris-Laguardia, Howard Lesnick
State-Court Injunctions And The Federal Common Law Of Labor Contracts: Beyond Norris-Laguardia, Howard Lesnick
All Faculty Scholarship
No abstract provided.