Dispute Resolution and Arbitration Commons^™

Feminist Legal Theory And #Metoo: Revisiting Tarana Burke’S Vision Of Empowerment Through Empathy, Penelope E. Andrews

Texas A&M Law Review

It is my purpose to ground this Article in ubuntu and the politics of radical love as applied to the goals of #MeToo and its pursuit of redress for victims of sexual harms. Part II explores the convergences and divergences of #MeToo with feminist campaigns of an earlier era. Part III questions whether a renewed quest for gender equality, largely spawned by a Twitter/social media campaign, may lead to sustainable change built on notions of empathy and restorative justice, which was the vision espoused by Carrie in her work and which influenced Tarana Burke when she founded #MeToo. Part IV …

Ethical Negotiation And Postcapitalist Politics: An Essay For Carrie, Amy J. Cohen

Texas A&M Law Review

In a 1983 article, Legal Negotiation: A Study of Strategies in Search of a Theory, Carrie Menkel-Meadow took stock of what was motivating a diverse range of scholars to want to reimagine negotiation theory. She described these negotiation scholars as shaped by the exigencies of their own political moments. Some were lawyers concerned about too much litigation of an unsatisfying quality. Many, however, were concerned more broadly about “the general level of hostility in the world,” even haunted by the possibility that nuclear weapons could destroy all of humanity. Negotiation scholars included “[e]conomists and game theorists . . . concerned …

Carrie Menkel-Meadow: Dispute Resolution In A Feminist Voice, Andrea Kupfer Schneider

Texas A&M Law Review

The presence of women in the law has changed the law’s substance, practice, and process. Carrie Menkel-Meadow, whose scholarship centers on this theme, is one such revolutionary woman.

Professor Menkel-Meadow, who I am proud to call my colleague, co-author, and friend (hereinafter referred to as Carrie), began her career in 1977 with a series of simple questions that sparked a breathtaking body of work. Carrie probed the depth of male domination in the realm of law and wondered what changes female representation might engender. In particular, she focused her inquiry on the value orientation each respective gender might bring to …

Appendix To “The Amazing Carrie Menkel-Meadow And What Wins When Passions Collide”, Lela Porter Love

Texas A&M Law Review

Appendix to “The Amazing Carrie Menkel-Meadow and What Wins When Passions Collide”

How To Be A Better Plea Bargainer, Cynthia Alkon, Andrea Kupfer Schneider

Faculty Scholarship

Preparation matters in negotiation. While plea bargaining is a criminal lawyer’s primary activity, the value of this skill is discounted by law schools and training programs. A systemic model can be used to improve plea bargaining skills. This Article offers a prep sheet for both prosecutors and defense attorneys and explains how each element of the sheet specifically applies to the plea bargaining context. The prep sheet is designed as a learning tool so that the negotiator can learn from the sheet and then make their own. The sheet highlights important considerations such as understanding the interests and goals of …

Switching Hats In Med-Arb: The Ethical Choices Required To Protect Process Integrity, Nancy A. Welsh

Faculty Scholarship

Increasingly, there is interest in the use of mixed-mode dispute resolution, including med-arb. Med-arb provides the opportunity for parties to reach their own agreements, while also guaranteeing a binding decision. However, because med-arb combines mediation and arbitration, it presents a variety of ethical challenges – to party self-determination, impartiality, confidentiality, and even fairness and process integrity. Relying primarily on the Model Standards of Conduct for Mediators and the Code of Ethics for Arbitrators in Commercial Disputes, it becomes clear that some of these ethical challenges can be met through process choices – e.g., the use of two neutrals rather than …

Bargaining Without Bias, Cynthia Alkon

Faculty Scholarship

In this article, to work towards decreasing bias in plea bargaining, I propose a structural fix and an individual fix to these core problems. The structural fix is that prosecutors' offices should adopt policies for blind assessment of cases when the first plea offer is made. All indicia of race or ethnicity (including names and neighborhoods) should be removed when prosecutors review a case and make the initial plea offer. This would help prosecutors focus on the facts and their evidence when making a plea offer and prevent bias in decision making. However, it is not realistic to expect that …

But Is It Good: The Need To Measure, Assess, And Report On Court-Connected Adr, Nancy A. Welsh

Faculty Scholarship

We know that very few civil matters reach disposition through trial—but what do we really know about how civil cases do reach disposition? What number of civil cases reach disposition through settlement? What number of civil cases reach settlement through court-connected “alternative” dispute resolution (ADR)? Do we know enough about the results of courtconnected ADR to be able to detect potential patterns of systemic discrimination? This Article examines what we know from federal and state court systems’ public reporting and finds: 1) only a minority of federal district courts and state court systems report regarding dispositions through settlement; 2) there …

Attempting—And Failing—To Balance Fairness And Efficiency In The Arbitral System: How Arbitration Institutions Are Defeating The Purpose Of Arbitration, Hannah N Myslik

Texas A&M Law Review

The Supreme Court has actively expanded the Federal Arbitration Act into realms not originally contemplated by Congress. This harms consumers who are parties to pre-dispute, binding arbitration agreements. If consumers sign a contract containing an arbitration agreement, they may be required to arbitrate everything within the agreement’s scope, including their statutory rights. Simultaneously, the Court has restricted class action arbitration—a device on which consumers have relied when they are forced to arbitrate.

The Court’s expansion of arbitration and restriction of class action arbitration has led many to distrust and advocate for changing the arbitral system. Arbitration institutions have directly reacted …

Bargaining In The Shadow Of Investor-State Mediation: How The Threat Of Mediation Will Improve Parties' Conflict Management, Andrea Kupfer Schneider, Nancy A. Welsh

Faculty Scholarship

Issues of access to justice, threats to national sovereignty, and perceptions of inconsistency and arbitrariness have led to a crisis of confidence in the investor-state arbitration system. In response, there has been a successful push for the inclusion of mediation in treaty provisions and arbitration rules, as well as ratification of the Singapore Convention for the expedited enforcement of mediated agreements. Nonetheless, very little mediation is actually occurring on the ground. Efforts to increase the use of mediation have failed to address concerns such as the political costs of settling cases, the lack of coordination between state agencies with different …

Introduction To Symposium On "Adr's Place In Navigating A Polarized Era", Nancy A. Welsh

Faculty Scholarship

Ours is a nation built for conflict, for friction. Such conflict, while painful, can be good. It can signal newfound agency, and it can be a catalyst for dialogue, customized and creative solutions, and ultimately progress. This is what many dispute resolution academics teach their students. But we are caught in such an extraordinarily polarized time, and many wonder what role ADR can and should play in navigating a polarized era. That was the question addressed by Texas A&M School of Law's March 2020 symposium, with the resulting articles - by Baruch Bush & Peter Miller, Jonathan Cohen, Jill DeTemple, …

Bringing Transparency And Accountability (With A Dash Of Competition) To Court-Connected Dispute Resolution, Nancy A. Welsh

Faculty Scholarship

Among the various dispute resolution processes, mediation is the most widely institutionalized in American courts. As a result, this Article focuses primarily, although not exclusively, on the data collected and disseminated regarding court-connected mediation. The Article begins with a brief description of the institutionalization of mediation and other dispute resolution processes in the federal judicial system and in select U.S. state court systems. This narrative reveals substantial reference to the availability of mediation but a dizzying patchwork in terms of institutionalization and a significant lack of system-wide information in some states. The Article then focuses on the data that these …

Arbitrarily Selecting Black Arbitrators, Michael Z. Green

Faculty Scholarship

Calls for increased diversity among arbitrators have surged with the growth of the employer movement, so-called mandatory arbitration, which requires employees to agree to arbitrate employment discrimination matters as a condition of employment. Despite good-faith efforts by neutral service providers, civil rights organizations, bar associations, and employer and employee groups to identify and address the need for more diverse arbitrators in mandatory arbitration, many commentators still lament that this diversity problem reflects negatively on access to justice. With the #MeToo movement’s focus in recent years on the lack of a public and transparent resolution for sexual harassment matters, as well …

Mediating Psychiatric Disability Accommodations For Workers In Violent Times, Michael Z. Green

Faculty Scholarship

Most workers in the United States are unhappy. Manifestations of that dissatisfaction can result in many workplace dilemmas when confronted with the situation of an employee dealing with mental illness. Fears of violence in our society have become prevalent with the increasing ferocity of high-profile and mass attacks in and out of the workplace. In believing mental illness contributes to some of these incidents, employers and co-workers have become extremely sensitive when a co-worker with a psychiatric disability has exhibited harassing or threatening behavior.

The Americans with Disabilities Act (ADA) was amended by the ADA Amendments Act of 2008 (ADAAA), …

Enough To Hang Your Hat On: Regulating Binding Arbitration Of Insurance Disputes In Texas, Timothy Azevedo

Texas A&M Journal of Property Law

Texas law is currently silent on the issue of whether insurance companies may sell insurance policies that require policyholders to bring coverage disputes to an arbitrator rather than the courts. As incentives increase for insurance companies to avoid costly litigation and for consumers to cut ever- increasing premiums, this creates a situation where a hasty, ill-considered proposal to allow such policy terms could shake the insurance market and public policy in the state for years to come. Rather than taking a reactive position, the Texas legislature should work with the Department of Insurance and stake- holders to affirmatively decide: (1) …

Dispute Resolution Neutrals' Ethical Obligation To Support Measured Transparency, Nancy A. Welsh

Faculty Scholarship

In 2016, the Consumer Financial Protection Bureau (CFPB) issued proposed rules that would have brought substantial transparency to mandatory pre-dispute consumer arbitration. In particular, the CFPB proposed to require regulated providers of financial products and services to report to the CFPB regarding their use and the outcomes of arbitrations conducted pursuant to arbitration clauses, and further, the CFPB proposed to make such information public (with appropriate redactions). Although Congress and the President ultimately annulled the CFPB’s proposed rule, its introduction revealed the need for dispute resolution neutrals to support bringing “measured transparency” to private dispute resolution. To place the CFPB’s …

Sharkfests And Databases: Crowdsourcing Plea Bargains, Kay L. Levine, Ronald F. Wright, Nancy J. King, Marc Miller

Texas A&M Law Review

In this Essay, we dive deeper into this final dimension to discuss the influence of professional networks on plea negotiations. In particular, we examine the effects of crowdsourcing tactics in the negotiation setting. We describe, for example, what happens when lawyers bargain in public, benefitting from an audience that provides information about past practices and deals. And then we speculate about what might happen if that audience were instead a widely shared database that documents plea practices in the jurisdiction. We offer a few preliminary thoughts about the potential influence of such techniques, as we are not in a position …

The Contract Dispute Act's Statute Of Limitations: The Failure To Deliver Procedural Predictability, Peter M. Casey

Texas A&M Journal of Property Law

The Contract Disputes Act of 1978 (“CDA”) governs disputes “relating to a contract” between federal executive agencies and contractors. It establishes the process for parties to seek administrative remedies for claims under covered contracts. It also limits the right to judicial review of agency decisions to specific “boards of contract appeals” (“BCA”) and the United States Court of Federal Claims (“COFC”). According to the CDA’s sponsors, Congress enacted the law to bring reliability and order to a hodgepodge of conflicting and inconsistent rules for adjudicating contract disputes used by the various executive agencies. The law aimed to simplify the process …

When Courts Run Amuck: A Book Review Of Unequal: How America's Courts Undermine Discrimination Law By Sandra F. Sperino And Suja A. Thomas (Oxford 2017), Theresa M. Beiner

Texas A&M Law Review

In Unequal: How America’s Courts Undermine Discrimination Law (“Unequal”), law professors Sandra F. Sperino and Suja A. Thomas provide a point-by-point analysis of how the federal courts’ interpretations of federal anti-discrimination laws have undermined their efficacy to provide relief to workers whose employers have allegedly engaged in discrimination. The cases’ results are consistently pro-employer, even while the Supreme Court of the United States—a court not known for being particularly pro-plaintiff—has occasionally ruled in favor of plaintiff employees. The authors suggest some reasons for this apparent anti-plaintiff bias among the federal courts, although they do not settle on a particular reason …

Adr And Access To Justice: Current Perspectives, Ellen E. Deason, Michael Z. Green, Donna Shestowsky, Rory Van Loo, Ellen Waldman

Faculty Scholarship

Extract:

I want to give you a roadmap for our program. We will not be delivering individual papers but, rather, hope to have a discussion. We are planning to spend thirty minutes on introductions for the purpose of allowing you to identify the source of each panelist's perspectives. We will then use an hour, more or less, for a discussion among the panel. That will leave fifteen minutes for audience questions and participation. Because we will be publishing an edited transcript, we ask that you hold your questions until the end.

Access to justice is a broad topic, and we …

The Blurring Of The Public/Private Distinction Or The Collapse Of A Category? The Story Of Investment Arbitration, Guillermo J. Garcia Sanchez

Faculty Scholarship

The paper is a response piece to Deborah Hensler and Damira Khatam’s new article, Re-inventing Arbitration: How Expanding the Scope of Arbitration Is Re-Shaping Its Form and Blurring the Line Between Private and Public Adjudication. Their main argument regarding the public-private distinction is that the arbitral procedure has changed as a consequence of the substantive issues resolved in this particular ADR system. According to them the arbitral system, which was originally conceived for commercial purposes, has become another way of litigating public law, but without the accountability mechanisms attached to public courts. In this paper, I agree in large part …

Can Nfl Players Obtain Judicial Review Of Arbitration Decisions On The Merits When A Typical Hourly Union Worker Cannot Obtain This Unusual Court Access?, Michael Z. Green, Kyle T. Carney

Faculty Scholarship

Several recent court cases, brought on behalf of National Football League (NFL) players by their union, the NFL Players Association (NFLPA), have increased media and public attention to the challenges of labor arbitrator decisions in federal courts. The Supreme Court has established a body of federal common law that places a high premium on deferring to labor arbitrator decisions and counseling against judges deciding the merits of disputes covered by a collective bargaining agreement (CBA). A recent trend suggests federal judges have ignored this body of law and analyzed the merits of labor arbitration decisions in the NFL setting.

NFL …

Reconsidering Prejudice In Alternative Dispute Resolution For Black Work Matters, Michael Z. Green

Faculty Scholarship

In the 1985 foundational article Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, Richard Delgado and his co-authors identified major concerns with the growing use of alternative dispute resolution (ADR) to resolve disputes involving people of color. The seminal findings from that article highlighted the power differentials exacerbated by informal dispute resolution, and the article contributed immediately to a surge of robust critiques of the increasing use of alternative dispute resolution for those most vulnerable in our society.

More than thirty years after the Delgado article, a community of respected and prominent ADR and discrimination scholars, …

Do You Believe In Magic?: Self-Determination And Procedural Justice Meet Inequality In Court-Connected Mediation, Nancy A. Welsh

Faculty Scholarship

Proponents of the “contemporary mediation movement” promised that parties would be able to exercise self-determination as they participated in mediation. When courts began to mandate the use of mediation, commentators raised doubts about the vitality of self-determination. Though these commentators also suggested a wide variety of reforms, few of their proposals have gained widespread adoption in the courts.

Ensuring the procedural justice of mediation represents another means to ensure self-determination. If mediation provides parties with the opportunity to exercise voice, helps them demonstrate that they have considered what each other had to say, and treats them in an even-handed and …

A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan Saab Fortney

Faculty Scholarship

Black's Law Dictionary defines “tort” as a civil wrong for which a remedy may be obtained. In examining both the economics and jurisprudence related to legal malpractice, the article discusses why the “remedy” portion of this definition is unavailable for many victims of legal malpractice. This discussion considers the different stages of a legal malpractice case, including the challenges that injured persons face in retaining experienced counsel to represent them, the anatomy of the legal malpractice case, and the difficulties in collecting judgements or settlements. The discussion will consider how “capture” and “judicial bias” contribute to the “disappearing legal malpractice …

Crossfertilizing Isds With Trips, Peter K. Yu

Faculty Scholarship

In the past few years, investor-state dispute settlement (ISDS) has garnered considerable scholarly, policy and media attention. Such attention can be partly attributed to the negotiation of the Trans-Pacific Partnership and the Transatlantic Trade and Investment Partnership (TTIP). It can also be attributed the growing use of ISDS to address international disputes involving intellectual property investments. Recent examples include Philip Morris’s now-failed attempts to challenge the tobacco control measures in Australia and Uruguay and Eli Lilly's equally unsuccessful effort to invalidate the patentability requirements in Canada.

Written for a symposium on investor-state arbitration, this article focuses on the growing use …

Class Action-Barring Mandatory Pre-Dispute Consumer Arbitration Clauses: An Example Of (And Opportunity For) Dispute System Design?, Nancy A. Welsh

Faculty Scholarship

Ultimately, this essay will conclude that a private, ad hoc dispute system design process did lead to the insertion of class action waivers in mandatory pre-dispute consumer arbitration clauses. In-house and outside counsel certainly played key roles in initiating this process, but it is unclear that any individual lawyers could claim credit or responsibility as "designers." The representatives of dispute resolution organizations, meanwhile, played supporting roles-as providers of information and as amici in Supreme Court litigation. The essay will consider whether dispute resolution professionals could have managed their role in the process differently-and if so, why they would have managed …

Whole Other Story: Applying Narrative Mediation To The Immigration Beat, Carol Pauli

Faculty Scholarship

If Donald Trump, kicking off his campaign for the White House, was saying “what everyone is thinking,” about illegal immigration, it must be that his message mirrored a narrative that already existed in the minds of his audience. That fearful story of criminals invading the U.S. borders has long been a dominant theme in the mainstream news immigration story. Like all news stories, this one focuses attention on some facts at the expense of others. Like many news stories, it draws its power from earlier, well-known tales — some as old as the Flood. This article recommends that the news …

Magistrate Judges, Settlement, And Procedural Justice, Nancy A. Welsh

Faculty Scholarship

This Article begins, in Part I, with an overview of magistrate judges’ history and role generally, including a discussion of the mechanism of “blind consent” that must be undertaken before a magistrate judge may conduct a trial. Part I then turns to magistrate judges’ role in settlement and ADR, outlines the procedural and ethical rules governing judges’ role in settlement, and highlights research revealing lawyers’ concerns regarding judges’ role in settlement. In Part II, the Article provides a brief overview of mediation in the federal courts and considers the relationship between judge-hosted settlement sessions and mediation. With this background regarding …

Incentivizing Corporate America To Eradicate Transnational Bribery Worldwide: Federal Transparency And Voluntary Disclosure Under The Foreign Corrupt Practice Act, Peter Reilly

Faculty Scholarship

In 1977, it was discovered that hundreds of U.S. companies had spent hundreds of millions of dollars in bribes to improve business overseas. In response, Congress passed the Foreign Corrupt Practices Act (FCPA), thereby making it illegal to bribe foreign officials to obtain a business advantage. A major tension has emerged between the federal agencies charged with enforcing the FCPA (i.e., the DOJ and SEC), and the corporate entities trying to stay within the legal and regulatory bounds of the statute. Specifically, while the government appears to be trying to maximize discretion and flexibility in carrying out its enforcement duties, …