Dispute Resolution and Arbitration Commons^™

Transcript Of The Florida Tobacco Litigation Symposium - Fact, Law, Policy And Significance, Jeffrey W. Stempel, Jean R. Sternlight

Scholarly Works

On November 17, 1997, Professors Jeffrey W. Stempel and Jean R. Sternlight joined a group of colleagues specializing in litigation at the Florida State University College of Law Review's Symposium on the tobacco litigation settlement reached between the State of Florida and five leading tobacco manufacturers that same year. The professors appeared on a panel to discuss the the relationship among the legal system, public health concerns, and tobacco. This is a transcript of those preceedings.

Symposium, The Florida Tobacco Litigation -- Fact, Law, Policy, And Significance, Jeffrey W. Stempel

Scholarly Works

This is the transcript of the Florida tobacco litigation symposium, discussing the s$11.3 billion settlement concerning tobacco in the state of Florida. Jeffrey W. Stempel served as co-chair and moderator of the symposium.

Contracting Access To The Courts: Myth Or Reality? Bane Or Boon?, Jeffrey W. Stempel

Scholarly Works

Many scholars of the dispute resolution system perceive a sea change in attitudes toward adjudication that took place in the mid-1970s. Among the events of the time included the Pound Conference, which put the Chief Justice of the United States and the national judicial establishment on record in favor of at least some refinement, if not restriction, on access to courts. In addition, Chief Justice Burger, the driving force behind the Pound Conference, also used his bully pulpit as Chief Justice of the Supreme Court to promote ADR, particularly court-annexed arbitration. The availability of judicial adjuncts such as court-annexed arbitration …

A More Complete Look At Complexity, Jeffrey W. Stempel

Scholarly Works

The ability of courts to successfully resolve complex cases has been a matter of contentious debate, not only for the last quarter-century, but for most of the twentieth century. This debate has been part of the legal landscape at least since Judge Jerome Frank's polemic book from which this Symposium derives its title, and probably since Roscoe Pound's famous address to the American Bar Association. During the 1980s and 1990s in particular, the battlelines of the pro-and anti-court debate have been brightly drawn. Some commentators, most reliably successful plaintiffs' counsel and politically liberal academics, defend the judicial track record in …

Mandatory Pre-Dispute Arbitration: Steps Need To Be Taken To Prevent Unfairness To Employees And Consumers, Jean R. Sternlight

Scholarly Works

Courts, arbitral organizations and governmental agencies are increasingly recognizing that mandatory binding arbitration can be used both to disadvantage employees and consumers, and to evade legal requirements. Over the last decade, private parties such as employers, manufacturers and financial organizations began using binding arbitration agreements to skirt the public law, and public juries, with increasing intensity. As so often happens, overreaching may once again be giving way to retrenchment, as the tide seems to be turning away from the “anything goes” approach of the earlier 1990s.

Forum Shopping For Arbitration Decisions: Federal Courts' Use Of Antisuit Injunctions Against State Courts, Jean R. Sternlight

Scholarly Works

Arbitration clauses, which are supposed to do away with litigation, have ironically spawned many complicated and expensive court fights. Some of the most complex cases involve both forum shopping by the parties and jurisdictional turf battles between federal and state courts. Federal courts have, on quite a few occasions, actually gone so far as to enjoin a state court from continuing to consider a pending case because the federal court concluded that the matter ought to be arbitrated. The Supreme Court, however, has never ruled on whether or when such "arbitral antisuit injunctions" are permissible. In Moses H. Cone Memorial …

Civil Justice Reform Symposium: Introduction, James F. Hogg

Faculty Scholarship

Many people in the United States are not happy about the way in which litigation proceeds. In a country sometimes thought to be overpopulated with lawyers, either one party or both parties in a significant percentage of civil cases apparently cannot afford, or decline to retain, legal counsel. Financing for legal aid seems to be less than adequate, pro bono services are helping to some extent, but the administration of civil justice is in danger of sinking in the swamp of pro se ("do-it-yourself') litigation. The articles in this symposium discuss ideas for reform, such as introductory resources directed at …

Protecting Unionized Employees Against Discrimination: The Fourth Circuit's Misinterpretation Of Supreme Court Precedent, Ann C. Hodges

Law Faculty Publications

This article will first review the Supreme Court's arbitration jurisprudence, concentrating on labor and employment law cases. Next, the article will analyze the cases involving arbitration under collective bargaining agreements decided by the courts of appeals subsequent to Gilmer. The article will then evaluate the two different approaches of the circuit courts in light of the law relating to collective bargaining and union representation. Finally, the article will review alternative methods of protecting employee rights to determine whether unions can preserve employees' statutory rights under the rule of the Fourth Circuit. The article concludes that the Supreme Court should …

The Interpretation Of The Remedial Provisions Of The Cisg, Evelina Wilhelmina Innocentia Visser

LLM Theses and Essays

The drafting process of the most successful international uniform law of the last decades, the 1980 United Nations Convention on the International Sale of Goods (CISG) reflected that in order to become a set of "well-balanced subsidiary rules," international uniform must be drafted and implemented carefully. It is essential that an international uniform law is adapted to diverse cultures. The different needs and demands of the varied socio-economic systems and legal structures, perceptions, procedures, and cultures of the distinct legal systems of this world are a main and omnipresent consideration and must be capable of absorbing the unified law. Either …

Procedural Issues In Wto Dispute Resolution, Peter Lichtenbaum

Michigan Journal of International Law

This article identifies particularly significant procedural issues that are arising in WTO dispute resolution and comments on the possible evolutionary paths of the law. This task requires that the article strike a balance between breadth of coverage and depth of coverage. As a result, the article does not aim to provide a complete discussion of all aspects of the WTO dispute resolution system and generally does not discuss issues that have not been addressed by WTO panels. The article does not seek to provide an exhaustive analysis of each issue discussed, and therefore deals briefly with the background under the …

Time To Try Mediation Of International Commercial Disputes, Harold Abramson

Scholarly Works

No abstract provided.

Informed Consent In Mediation: A Guiding Principle For Truly Educated Decisionmaking , Jacqueline Nolan-Haley

Faculty Scholarship

Informed consent has a central role to play in mediation. Without it, mediation's promises of autonomy and self-determination are empty. This Article has given the theoretical and policy justifications for a reform of mediation practice that honors the principle of informed consent. I have argued for a contextualized approach that takes into account mediation's location, the voluntariness of the parties' consent, and their representational status. This kind of analysis will lead to a more informed practice of mediation decisionmaking than exists currently and provide a perspective that can more prudently guide a mediator's conduct. The proposed approach promotes greater fairness …

Not-So-Arbitrary Arbitration: Using Title Vii Disparate Impact Analysis To Invalidate Employment Contracts That Discriminate, Miriam A. Cherry

Faculty Publications

(Excerpt)

On May 20, 1996, three women filed a sexual harassment and discrimination lawsuit against the Wall Street investment firm Smith Barney. Later joined by twenty additional women, the plaintiffs alleged that Smith Barney failed to hire and promote women, created a hostile work environment, and discriminated on the basis of pregnancy and marital status. The lawsuit quickly gained widespread publicity, most notably for its accusation that the former manager of the Garden City, New York, branch had established a fraternity-like "boom-boom room" in the office basement where female employees were either excluded or harassed if allowed to enter. On …

Teaching A New Paradigm: Must Knights Shed Their Swords And Armor To Enter Certain Adr Arenas?

Cardozo Journal of Conflict Resolution

No abstract provided.

The State Of The States: Dispute Resolution In The Courts

Cardozo Journal of Conflict Resolution

No abstract provided.

Mediation In Kentucky: Where Do We Go From Here?, Vanessa Mitchell

Kentucky Law Journal

No abstract provided.

Debating The Proper Role Of National Law Under The New York Convention, Thomas E. Carbonneau

Faculty Scholarship

One of the many consequences of the progressive development of globalization apparently has been to incite a vigorous debate among leading members of the international arbitral community about the role of national law in implementing the enforcement regime of the New York Arbitration Convention (Convention). The debate was provoked by federal court rulings in two recent cases: Chromalloy Aeroservices v. Arab Republic of Egypt (Chromalloy) and Alghanim & Sons v. Toys"R" Us (Toys "R" Us). Prior to these opinions, there appeared to have been an implicit consensus in the international community regarding the "anational"character of …

I'Ll Take It For What It Is Worth -- The Use Of Hearsay Evidence By Labor Arbitrators: A Primer And Modest Proposal, Marvin F. Hill, Jr., Tammy M. Westhoff,

Journal of Dispute Resolution

This article considers these and other selected problems dealing with hearsay evidence that are likely to be encountered in the arbitral forum. It is our thesis that arbitrators do and should credit some (but not all) forms of hearsay evidence, but that the arbitral process is not served by admitting all evidence and "taking it for what it is worth." Further, we believe when an advocate's case against a grievant consists entirely of hearsay evidence, and there is no reliable substitute for cross examination or "equivalent circumstantial guarantees of trustworthiness," the grievant should prevail. Only in the rarest of cases …

Faa Exclusionary Clause: Are We Headed For A Broader Interpretation Of Interstate Commerce - Miller V. Public Storage Management, Inc., The, Matthew Potter

Journal of Dispute Resolution

The Federal Arbitration Act ("FAA") encompasses a vast spectrum of arbitration controversies. The FAA provides that "[a] written provision in .. . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction... shall be valid, irrevocable, and enforceable."2 The preceding section of the Act, however, states that "nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce."3 In their efforts to maintain a balance between these competing interests, many courts have attempted to assemble …

Ombudsman Offices In The Federal Government - An Emerging Trend, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.

Title Page

Journal of Dispute Resolution

No abstract provided.

Functus Officio: Does The Doctrine Apply In Labor Arbitration - Teamsters Local 312 V. Matlack, Inc., Amy Markel

Journal of Dispute Resolution

The doctrine of functus officio was developed at common law in response to concerns about the "solemnity of judgments" and the effect of outside influences on arbitrators' decisions.2 Although not strictly applied in arbitration that is conducted pursuant to the Labor Management Relations Act,3 the doctrine of functus officio prevents an arbitrator from vacating, modifying, supplementing, or correcting his award . Most courts recognize three narrow exceptions to the doctrine which allow an arbitrator to revisit his award under limited circumstances. This Note examines the application of the "clarification exception" to the doctrine in a labor dispute setting and outlines …

Qualification Requirements Of Mediators, Norma Jeanne Hill

Journal of Dispute Resolution

As the use of Alternative Dispute Resolution spreads, the question of who is qualified to provide mediation services becomes ever more important. In determining which selection methods to use in choosing qualified mediators for a particular court or program, attention should be paid to the effectiveness of each specific method, the cost to use it, and whether the method unduly discriminates against individuals of different cultural groups or with varying mediation styles. Just like any other selection procedure in the world of employment, a mediator qualification requirement ought to be analyzed in terms of effectiveness, cost, and discriminatory effects before …

Preliminary Injunction Of Arbitration Proceedings - Six Clinics Holding Corporation, Ii V. Cafcomp Systems, Inc., Heidi Albers

Journal of Dispute Resolution

The issue presented in Six Clinics Holding Corporation, I v. Cafcomp Systems, Inc., is whether a court is prohibited from issuing a preliminary injunction in a case subject to arbitration.' The parties had a private agreement to arbitrate any disputes, but the court enjoined the arbitration in order to determine a federal issue outside the arbitrator's jurisdiction The defendant argued that the Anti-Injunction Act, which prohibits federal courts from enjoining state court proceedings, was violated.4 However, the court found a loophole by stating that a private arbitration is not a state proceeding and thus is not governed by the Act.5 …

Protecting Against Employment Discrimination: The Ninth Circuit's Interpretation Of Mandatory Arbitration Of Title Vii Claims - Renteria V. Prudential Ins. Co. Of America, Todd C. Stanton

Journal of Dispute Resolution

The growing trend toward reliance upon arbitration, rather than judicial adjudication, has resulted in a reformation regarding the resolution of disputes within the employment industry. It has become a standard practice of many employers to require that employees sign employment agreements before they are allowed to work. Recently, these types of agreements have begun to require that employees resolve any disputes or claims against their employers through arbitration rather than judicial adjudication. Unfortunately, the average employee is often unaware of the binding nature of these agreements until a dispute actually arises with his or her employer. The Ninth Circuit has …

The Abcs Of Adr: Making Adr Work In Your Court System, Nancy A. Welsh, Barbara Mcadoo

Faculty Scholarship

So you are thinking about making Alternative Dispute Resolution (ADR) a part of your existing statewide judicial process-but you don't know how. You want to provide litigants with alternative ways to resolve their disputes, through processes such as mediation, arbitration, and summary jury trials. In fact, you have been experimenting with these processes on an ad hoc basis and have had quite a few successes. You think you could accomplish even more if you made ADR a routine part of the judicial process. But you are cautious about the role that your state court system should take in promoting and …

Arbitration: Time Limits And Continuing Violations, Richard I. Bloch

Michigan Law Review

Time limits in a collective bargaining agreement, particularly as they apply to the grievance procedure, are very important. Filing or processing deadlines are taken as seriously in the context of these private documents and negotiated time limits as they are in the world of standard litigation, with deadlines that are imposed statutorily or otherwise. Management advocates often view the time limitation provisions as virtually the only thing employers gain, as opposed to give, in the bargaining relationship. Deadlines have been strictly, if reluctantly, construed by most arbitrators. The "continuing violation" provides a meaningful exception to the otherwise immutable time bar. …

Mandatory Arbitration Of Employee Discrimination Claims: Unmitigated Evil Or Blessing In Disguise?, Theodore J. St. Antoine

Articles

One of the hottest current issues in employment law is the use of mandatory arbitration to resolve workplace disputes. Typically, an employer will make it a condition of employment that employees must agree to arbitrate any claims arising out of the job, including claims based on statutory rights against discrimination, instead of going to court. On the face of it, this is a brazen affront to public policy. Citizens are being deprived of the forum provided them by law. And indeed numerous scholars and public and private bodies have condemned the use of mandatory arbitration. Yet the insight of that …

Integrating Alternative Dispute Resolution (Adr) Into The Curriculum At The University Of Washington School Of Law: A Report And Reflections, Lea B. Vaughn

Articles

The essay is framed in two basic parts. In the first part, it describes the program of integration that was undertaken at the University of Washington during the 1995-1997 period of the Fund for the Improvement of Post-Secondary Education (FIPSE) grant. After describing the context in which these curricular changes were made, it describes the changes in years one and two of the grant program. Additional changes that have occurred subsequent to the final grant report in October 1997 also will be summarized. One of the lessons that emerges from our experience is that change will be an incremental, long …