Dispute Resolution and Arbitration Commons^™

Summary Of Pan V. Eighth Judicial District Court, 120 Nev. Adv.Op.No.26, Ronda Heilig

Nevada Supreme Court Summaries

When all of the “prerequisites for finality are met, an order that dismisses a case for forum non conveniens is a final judgment that should be reviewed on appeal,”2 and not via a petition for a writ of mandamus.

Summary Of Attorney General V. Nos, 120 Nev. Adv. Op. 11, Christopher W. Carson

Nevada Supreme Court Summaries

No abstract provided.

Arbitration, Unconscionability, And Equilibrium: The Return Of Unconscionability Analysis As A Counterweight To Arbitration Formalism, Jeffrey W. Stempel

Scholarly Works

However incomplete, unaggressive, or sub-optimal, unconscionability analysis of arbitration agreements has made something of a comeback in the late twentieth century and early twenty-first century. Just as nature abhors a vacuum, water seeks to be level, and ecosystems work to retain environmental stability, the legal system has witnessed an incremental effort by lower courts to soften the rough edges of the Supreme Court's pro-arbitration jurisprudence through rediscovery of what might be called the “unconscionability norm”--a collective judicial view as to what aspects of an arbitration arrangement are too unfair to merit judicial enforcement. In rediscovering and reinvigorating the unconscionability norm …

Boyd School Of Law Establishes Saltman Center For Conflict Resolution, Jean R. Sternlight

Scholarly Works

This article discusses William S. Boyd School of Law’s establishment of the Saltman Center for Conflict Resolution.

In Search Of The Best Procedure For Enforcing Employment Discrimination Laws: A Comparative Analysis, Jean R. Sternlight

Scholarly Works

As our world effectively shrinks, many countries are beginning to reach a striking substantive consensus regarding the prohibition of employment discrimination. Yet, and in sharp contrast, nothing approaching consensus has yet emerged regarding the best procedural method with which to resolve individual claims of employment discrimination. Instead, while countries have struggled, individually, to devise processes that meet a variety of needs, none seems to be satisfied with its efforts. Litigation is slow, costly, and impersonal. Informal processes such as conciliation, mediation, arbitration, or administrative processes aim to be faster and cheaper, but may not result in adequate enforcement of discrimination …

Using Arbitration To Eliminate Consumer Class Actions: Efficient Business Practice Or Unconscionable Abuse?, Jean R. Sternlight, Elizabeth J. Jensen

Scholarly Works

Companies are increasingly drafting arbitration clauses worded to prevent consumers from bringing class actions against them in either litigation or arbitration. If one looks at the form contracts she receives regarding her credit card, cellular phone, land phone, insurance policies, mortgage, and so forth, most likely, the majority of those contracts include arbitration clauses, and many of those include prohibitions on class actions. Companies are seeking to use these clauses to shield themselves from class action liability, either in court or in arbitration.

This article argues that while the unconscionability doctrine offers some protections, case-by-case adjudication is a costly means …

Learning From Practice: What Adr Needs From A Theory Of Justice, Katherine R. Kruse

Scholarly Works

Adding to the impressive body of work that has made her a leading voice in the fields of both alternative dispute resolution and professional responsibility, Carrie Menkel-Meadow's Saltman Lecture connects the theoretical exploration currently occurring on two parallel tracks: (1) theories of justice that investigate the ideal of a deliberative democracy; and (2) theories of alternative dispute resolution arising from its reflective practice. As she notes, theorists on both tracks are grappling with similar questions about the processes or conditions that will best bring together parties with widely divergent viewpoints to engage in consensus-building dialogue around contested issues.

However, while …

Summary Of State, Div. Child & Family Servs. V. Dist. Ct., 120 Nev. Adv. Rep. 50, Shane Jasmine Young

Nevada Supreme Court Summaries

The State sought a writ of mandamus or prohibition challenging the district court’s oral contempt order and sanctions.

Summary Of Health Plan Of Nev., Inc. V. Rainbow Medical, Llc, Matt Wagner

Nevada Supreme Court Summaries

This case was an appeal and cross-appeal dealing with Nevada’s Uniform Arbitration Act and the scope of judicial review of an arbitration award.

Summary Of Rickard V. Montgomery Ward & Co., 120 Nev. Ad. Op. 54, Amanda Yen

Nevada Supreme Court Summaries

On January 23, 1993, appellant David Rickard was involved in an incident at the Montgomery Ward store. On April 20, 1993, he filed a complaint in the Clark County District Court alleging various claims against the store. Approximately four years after the complaint was filed in court, Ward filed a chapter 11 bankruptcy proceeding with the United States Bankruptcy Court in the District of Delaware. In accordance with federal bankruptcy law, Rickard’s action in the Nevada district court was stayed. On August 25, 1998, Rickard filed a motion for relief from stay in order to further his action against Ward. …

Summary Of Maki V. Chong, 119 Nev. Adv. Op. No. 46, Hilary Barrett

Nevada Supreme Court Summaries

Appeal from a district court order applying the statutory homestead exemption to a debtor’s real property.

Symposium Introduction: Perspectives On Dispute Resolution In The Twenty-First Century, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

Forgetfulness, Fuzziness, Functionality, Fairness And Freedom, In Dispute Resolution, Jeffrey W. Stempel

Scholarly Works

Professor Subrin is a self-professed traditionalist who has been one of the most forceful defenders of what I might term neo-traditional “Clarkian” litigation. By that, I mean the model of civil disputing in which litigation is a primary vehicle. More important, the litigation is based on notice pleading, broad discovery, and a preference for adjudication on the merits.

Key Subrin works over the years have focused on the historical path of the Clarkian model, which served to fuel much of the law revolution of the mid-Twentieth Century, to the “new era” of civil procedure and dispute resolution that dominated the …

Adr Is Here: Preliminary Reflections On Where It Fits In A System Of Justice, Jean R. Sternlight

Scholarly Works

Reviewing some of the anthropological and other literature regarding other societies' resolution of disputes, I saw that historically many societies have placed far greater emphasis on harmony and healing, and far less emphasis on individualistic adversarial approaches, than we do in the United States today. Just as settlements occur in the "shadow of the law," that is, that the possibility of a litigated solution is often what drives disputants to resolve the dispute through mediation or negotiation, so too does litigation take place in the shadow of settlement. Despite the entanglement of various forms of dispute resolution, significant choices must …

The Rise And Spread Of Mandatory Arbitration As A Substitute For The Jury Trial, Jean R. Sternlight

Scholarly Works

THE CIVIL JURY trial is fast disappearing from our legal landscape, and one important reason for its disappearance is the rapid growth of mandatory arbitration. Yet, the imposition of mandatory arbitration eliminates the civil jury, and often this elimination is not made through a knowing, voluntary, or intelligent waiver. As I have argued elsewhere in greater detail, unless federal courts are generally willing to abandon the Seventh Amendment "knowing/voluntary/intelligent" civil jury trial waiver standard, they need to significantly revise their approach to mandatory arbitration clauses. If a given state allows the civil jury trial right to be waived through a …

Symposium Introduction, Jeffrey W. Stempel

Nevada Law Journal

No abstract provided.

A Traditionalist Looks At Mediation: It's Here To Stay And Much Better Than I Thought, Stephen N. Subrin

Nevada Law Journal

No abstract provided.

Judicial Mediation And Signaling, Edward J. Brunet

Nevada Law Journal

No abstract provided.

Self-Deregulation, The "National Policy" Of The Supreme Court, Paul D. Carrington

Nevada Law Journal

No abstract provided.

Adr Is Here: Preliminary Reflections On Where It Fits In A System Of Justice, Jean R. Sternlight

Nevada Law Journal

No abstract provided.

A Fresh Look At The Federal Rules In State Courts, John B. Oakley

Nevada Law Journal

No abstract provided.

Forgetfulness, Fuzziness, Functionality, Fairness, And Freedom In Dispute Resolution: Serving Dispute Resolution Through Adjudication, Jeffrey W. Stempel

Nevada Law Journal

One of the central goals of this Symposium was to present analysis and commentary by scholars known for their independent thinking and reluctance to ride trends merely because they are trendy. In this panel, that tendency is evident as Professors Subrin, Brunet, Carrington, and Stemlight all make points many would find contrarian. In my contribution to this portion of the Symposium, I hope merely to add some modest insights to their work and to articulate what I believe to be common threads, not only of their comments, but also of the dispute resolution movement generally.

"An Overwhelming Question" About Non-Formal Procedure, Thomas O. Main

Nevada Law Journal

No abstract provided.

The Past And Future Of The Federal Rules In State Courts, Carl Tobias

Nevada Law Journal

No abstract provided.

Procedural Provisions In Nevada Medical Malpractice Reform, Carl Tobias

Nevada Law Journal

No abstract provided.

Should An Arbitration Provision Trump The Class Action? No: Permitting Companies To Skirt Class Actions Through Mandatory Arbitration Would Be Dangerous And Unwise, Jean R. Sternlight

Scholarly Works

Companies are deliberately using mandatory arbitration to prevent consumers and employces from joining together in class actions. As Carroll Neesemann has explained, eliminating the class action is a "strong incentive" of those companies that impose the requirement of arbitration on consumers and employees. Mr. Neesemann defends this phenomenon, and his article offers companies and their attorneys some tips on how to effectively use arbitration to insulate themselves from the threat of class actions. By contrast, this essay argues that it is dangerous and unwise to permit companies to use mandatory arbitration to exempt themselves from class action suits.

Is The U.S. Out On A Limb? Comparing The U.S. Approach To Mandatory Consumer And Employment Arbitration To That Of The Rest Of The World, Jean R. Sternlight

Scholarly Works

After quickly summarizing the landscape of mandatory arbitration both within and without the United States, this article will consider why mandatory arbitration is treated so disparately, whether it is problematic that approaches to mandatory arbitration are so varied among countries, and what the differing jurisdictions can and should learn from one another. The article concludes that the United States Congress should be very concerned with the fact that we are treating mandatory arbitration more permissively than other countries. I, along with many others, have previously presented many arguments for why mandatory arbitration is problematic. Our outlier status on this issue …

"An Overwhelming Question" About Non-Formal Procedure, Thomas O. Main

Scholarly Works

No abstract provided.

Ulysses Tied To The Generic Whipping Post: The Continuing Odyssey Of Discovery "Reform", Jeffrey W. Stempel

Scholarly Works

One need not be a charter member of the Critical Legal Studies Movement (“CLS”) to see a few fundamental contradictions in litigation practice in the United States. A prominent philosophical tenet of the CLS movement is that law and society are gripped by a “fundamental contradiction” and simultaneously seek to embrace contradictory objectives. Civil litigation, particularly discovery, is no exception: New amendments to the discovery rules are the latest example of this contradiction. Although the new changes are not drastic, they continue the post-1976 pattern of making discovery the convenient scapegoat for generalized complaints about the dispute resolution system. One …

Mandatory Binding Arbitration And The Demise Of The Seventh Amendment Right To A Jury Trial, Jean R. Sternlight

Scholarly Works

How can the body of law which protects the federal constitutional jury trial right be reconciled with a body of arbitration law which often states such propositions as (1) arbitration is favored; (2) arbitration clauses may be upheld absent a showing of voluntary, knowing, or intentional consent; (3) the party opposing arbitration bears the burden of proof; (4) arbitration can sometimes be imposed using unsigned envelope "stuffers," handbooks, and warranties; and (5) ambiguous contracts should be construed broadly to support arbitration? To be valid, in most courts the waiver and whether it was actually state arbitration clauses need not be …