Dispute Resolution and Arbitration Commons^™

Reinventing The Deal: A Sequential Approach To Analyzing Claims For Enforcement Of Modified Sales Contracts, Irma S. Russell

Faculty Works

This article explores the legal and economic complexities surrounding the enforcement of modified sales contracts under Section 2-209 of the Uniform Commercial Code (UCC). While contract modification allows parties to adapt agreements to changing circumstances, courts have struggled with the absence of a consistent standard for determining when such modifications should be enforced. The discussion critiques the ambiguity of the UCC’s “good faith” requirement and the unpredictability it creates in judicial decision-making. To address these issues, the article proposes a “sequential approach” that examines each stage of the modification process, requiring the initiating party to demonstrate reasonable grounds for seeking …

Using Alternative Dispute Resolution In Intellectual Property Cases

Cardozo Journal of Conflict Resolution

No abstract provided.

Mandatory Fee Arbitration Under New York’S Matrimonial Rules, Lester Brickman

Cardozo Journal of Conflict Resolution

In recent decades, public dissatisfaction with lawyers has mounted ceaselessly. A significant portion of that dissatisfaction is attributable to concerns about lawyers’ integrity and fees. Indeed, “[n]o single issue between lawyer and client arises more frequently or generates more public resentment than fee problems.” Despite the near ubiquity of fee disputes, client complaints to disciplinary agencies about excessive fees are almost always rejected because most disciplinary boards do not accept jurisdiction over claims of excessive fees.

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 …

The Effects Of Mediation In A Juvenile Incarceration Facility: Reduction Of Violence Through Transformation, Linda H. Morton, Floralynn Einesman

Faculty Scholarship

Using Bush and Folger’s transformative framework and psychological theory, the authors posit that mediation can play a role in changing the behavior of incarcerated juveniles by its focus on empathy and self-empowerment. After a brief description of their mediation clinic in Juvenile Hall, the authors assess the effects of the clinic in transforming its participants through data gathered.

The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine

Articles

A quarter century ago, in a provocative and prophetic article, David E. Feller lamented the imminent close of what he described as labor arbitration's "golden age." I have expressed reservations about that characterization, insofar as it suggested an impending shrinkage in the stature of arbitration. But Professor Feller was right on target in one important respect. Labor arbitration was going to change dramatically from the autonomous institution in the relatively self-contained world of union-management relations which it had been from the end of World War II into the 1970s. When the subject matter was largely confined to union-employer agreements, arbitration …

The Newly Revised Cpr Rules For Non-Administered Arbitration Of International Disputes, Robert H. Smit

Faculty Scholarship

In August 2000, the Center for Public Resources Institute for Dispute Resolution (“CPR”) – one of the pre-eminent alternative dispute resolution organizations in the United States – announced revisions to its Rules for Non-Administered Arbitration of International Disputes (the “International Rules” or the “Rules”). CPR first promulgated its International Rules in April 1992 as an alternative – indeed, the only alternative currently available – to the international ad hoc arbitration rules issued in 1976 by the United Nations Commission on International Trade Law (the “UNCITRAL Rules”). According to the Chair of the CPR Committee that prepared the original CPR International …

The Ada Mediation Guidelines: A Community Collaboration Moves The Field Forward, Judith Cohen

Cardozo Journal of Conflict Resolution

The purpose of this article is to describe the various issues – such as accessible process and informed consent – faced by a group of twelve mediators and how they resolved these issues. This group, known as the ADA Mediation Guidelines Work Group (“WG”), evolved from informal discussions regarding the lack of standards in ADA mediations and the need to address the quality of the process. The WG raised the following questions, among others, in its internal discussions: What constitutes effective ADA mediator training? Are ADA disputes issues of private concern between the parties, public policy concerns, or both? How …

The Young Cybersquatter’S Handbook: A Comparative Analysis Of The Icann Dispute, Kevin J. Heller

Cardozo Journal of Conflict Resolution

This article will examine how the UDRP and the ACPA are implemented to enjoin the use of trademarks and service marks as Internet domain names in the United States and throughout the world. Part I of this paper provides background information regarding ICANN and its role in Internet domain name governance and an analysis of the UDRP. Part II will discuss the background of the ACPA, how it has expanded prior trademark law, and how it is currently applied. Finally, Part III will discuss the pros and cons of the UDRP and the ACPA, with regard to jurisdictional issues and …

The Changing Role Of Labor Arbitration, Theodore J. St. Antoine

Indiana Law Journal

Symposium: New Rules for a New Game: Regulating Employment Relationships in the 21st Century, held at the Indiana University School of Law-Bloomington.

Waiver - Not Yet: After More Than Eight Years Of Pre-Trial Litigation The Second Circuit Orders Arbitration - Crysen/Montenay Energy Co. V. Shell Oil Co. And Scallop Petroleum Co., David A. Geisler Ii.

Journal of Dispute Resolution

Arbitration clauses, like most terms in a contract, are enforceable against either party and, unless expressly or impliedly waived, should be enforced. While the federal courts and Congress have a policy that strongly favors arbitration, in some situations the factual nature of the case leads the court to conclude that the right to arbitrate the matter has been waived. The Second Circuit Court of Appeals, in In re Crysen/Montenay Energy Co. v. Shell Oil Co. and Scallop Petroleum Co., addressed this issue; however the court concluded that the policy favoring the enforcement of arbitration provisions outweighed the prejudice to Crysen/Montenay …

Is The Use Of Mediation Appropriate In Adult Guardianship Cases?, Mary F. Radford

Faculty Publications By Year

No abstract provided.

Why Courts Review Arbitral Awards, William W. Park

Faculty Scholarship

Judicial review of arbitral awards constitutes a form of risk management. In most countries courts may vacate decisions of perverse arbitrators who have ignored basic procedural fairness, as well as those of alleged arbitrators who have attempted to resolve matters never properly submitted to their jurisdiction. In some countries judges may also correct legal error or monitor an award's consistency with public policy.

Public scrutiny of arbitration is inevitable at the time of award recognition. Judges can hardly ignore the basic fairness of an arbitral proceeding when asked to give an award res judicata effect by seizing assets or staying …

Mediation Of Probate Matters: Leaving A Valuable Legacy, Lela P. Love

Articles

No abstract provided.

Investor-State Disputes Under Nafta: A Tale Of Fear And Equilibrium, Charles Hendrickson Brower Ii

Law Faculty Research Publications

No abstract provided.

Adr And The Professional Responsibility Of Lawyers, Jacqueline M. Nolan-Haley, Robert F. Cochran Jr., Stephen K. Huber, Kimberlee K. Kovach

Fordham Urban Law Journal

Should the meaning of "ethical" lawyering change in the ADR context? This article contains several essays arguing that change is needed, that current ethics rules and codes must be adjusted, and new rules must be drafted that respond to the subtleties and complexities of the issues raised in ADR legal practice. Professor Carrie Menkel-Meadow provides an overview of the major ethical issues facing lawyers in ADR practice and reviews the current ethics rules landscape in ADR. Professor Robert Cochran offers a proposal to amend the current professional responsibility rules to include a mandate for advising clients of ADR options. Professor …

Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine

Articles

Can a privately negotiated arbitration agreement deprive employees of the statutory right to sue in court on claims of discrimination in employment because of race, sex, religion, age, disability, and similar grounds prohibited by federal law? Two leading U.S. Supreme Court decisions, decided almost two decades apart, reached substantially different answers to this questionand arguably stood logic on its head in the process. In the earlier case of Alexander v. Gardner-Denver Co., involving arbitration under a collective bargaining agreement, the Court held an adverse award did not preclude a subsequent federal court action by the black grievant alleging racial discrimination. …

Dispute Resolution In The Boundaryless Workplace, Katherine V.W. Stone

Cornell Law Faculty Publications

Since the Supreme Court's decision Gilmer v. Interstate/Johnson Lane Corp. which compelled an employee to submit his age discrimination claim to arbitration under the Federal Arbitration Act (FAA), there has been a dramatic increase in the number of nonunion firms adopting arbitration systems. At the same time, there has been a flood of lawsuits challenging these employment systems, and a corresponding avalanche of judicial opinions addressing the legal issues left open in Gilmer – issues such as the problematic nature of consent in employment arbitration, the deficiencies in due process, and the applicability of the FAA to employment contracts. These …

Finding A Sense Of Self In The World: A Process For Overcoming Personal And Collective Alienation After Institutional Abuse, Seetal Kaur Sunga

LLM Theses

The author examines three aspects of dispute resolution involving cases of physical and sexual abuse in institutions and other environments. She focuses on judicial and alternative processes that deal with identity formation, empowerment and monetary compensation. She argues that sexual abuse and physical abuse create specific harms to the identity and power of abused persons. These harms should be addressed through a process that can allow for identity-formation and re-configuration of the power relationship between the parties. The author concludes that judicial processes recognize identity formation that occurs outside the legal arena, and are capable of recognizing the power of …

A Preacher's Teacher: Lessons On Ministry From One Who Proclaims The Word, Craig Mousin

Mission and Ministry Publications

No abstract provided.

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

Revised Uniform Arbitration Act: Modernizing, Revising, And Clarifying Arbitration Law, The, Timothy J. Heinsz

Journal of Dispute Resolution

From the outset of the Drafting Committee's deliberations, two issues came to the fore: federal preemption and adhesion contracts.23 The complexity of both matters presented substantial challenges to the Drafting Committee. The Drafting Committee needed to reach early agreement on an approach to preemption and adhesion, which affect so many areas covered by state arbitration law

To Litigate Or Arbitrate - No Matter - The Credit Card Industry Is Deciding For You, Johanna Harrington

Journal of Dispute Resolution

This Comment posits that consumers lose their legal protections in the credit industry when arbitration policies are favored over consumer credit protection policies. Part II will examine the language of credit card arbitration clauses including a discussion of the circumstances under which a credit card holder might bring a claim. Part III will discuss barriers to challenging the arbitration provisions. Part IV will summarize how the courts have addressed mandatory arbitration clauses in credit cards. Part V will examine traditional consumer credit protection laws, specifically whether the Truth-in-Lending Act is able to protect consumers from mandatory arbitration clauses. Finally, Part …

Clarifying The Intent Of Congress: Are The Federal Arbitration Act's Venue Provisions Permissive Or Mandatory - Cortez Byrd Chips, Inc. V. Bill Harbert Construction Co., Darynne L. O'Neal

Journal of Dispute Resolution

Some circuits have taken the position that the venue provisions are mandatory, thus limiting venue for motions to confirm, vacate, or modify arbitration awards to the district where the award was made. Other circuits, however, have adopted the contrary position that the venue provisions are permissive, allowing such motions to be brought either in the district where the arbitration award was made or in any district that is proper under the general venue statute. This Casenote explores the split among the circuits on the nature of the FAA's venue provisions. Cortez Byrd Chips, Inc. v. Bill Harbert Construction Co. addressed …

Prior Issue Index To Volumes 1990-2000

Journal of Dispute Resolution

No abstract provided.

Table Of Leading Comments-Authors Prior Issue Index To Volumes 1990-2000

Journal of Dispute Resolution

No abstract provided.

Table Of Leading Notes -Authors Prior Issue Index To Volumes 1990-2000

Journal of Dispute Resolution

No abstract provided.

Student Projects Prior Issue Index To Volumes 1990-2000

Journal of Dispute Resolution

No abstract provided.

Book Reviews - Authors/Casebook Case Studies Prior Issue Index To Volumes 1990-2000

Journal of Dispute Resolution

No abstract provided.