Dispute Resolution and Arbitration Commons^™

Context And Institutional Structure In Attorney Regulation: Constructing An Enforcement Regime For International Arbitration, Catherine A. Rogers

Faculty Scholarship

The question that looms large over the future of international arbitration is: How much should states yield to the international arbitration system? This Article attempts to answer the question as it applies to the specific context of regulating attorney conduct.

The Ballad Of Transborder Arbitration, Thomas E. Carbonneau

Faculty Scholarship

International commercial arbitration (ICA) is many things positive. Because business transactions cannot take place without a functional system of adjudication,ICA has enabled parties to engage in and pursue international commerce. As a result, it has had an enormous impact upon the international practice of law, the structuring of a de facto international legal system, and the development of a substantive world law of commerce. In a word, ICA has been a vital engine in the creation of a transborder rule of law. Furthering this design, the arbitral "method"has even been applied to the unruly political problems that attend international trade …

Third Party Visitation Statutes: Society’S Changing Views About What Constitutes A Family Must Be Formally Recognized By Statute, Beth Sherman

Cardozo Journal of Conflict Resolution

This Note begins by introducing the strong historical support for a parent’s fundamental liberty interest, protected by the Fourteenth Amendment’s Due Process Clause, to control the upbringing of his or her own child. It also examines the limitations placed on that right. Section two illustrates the need to balance these two perspectives when analyzing the current debate over nonparental visitation statutes. Section three addresses how the case of Troxel v. Granville reached the United States Supreme Court and the implications of the Court’s decision. Section four focuses on New York State by considering its nonparental visitation statutes, the effect of …

Title Page

Journal of Dispute Resolution

No abstract provided.

Emperor's New Clothes: Mediation Mythology And Markets, The, Susan S. Silbey

Journal of Dispute Resolution

The Emperor's New Clothes is a very modem tale about carving out market niches, about generating and feeding unreasonable desires, and about the power of conformity within emergent occupations and powerful professions.

Ability Of Native American Tribes To Waive Their Tribal Sovereign Immunity In Clear And Unequivocal Contracts To Arbitrate - C&(And)L Enterprises, Inc. V. Citizen Band Potawatomie Tribe Of Oklahoma, The, Emily J. Huitsing

Journal of Dispute Resolution

Native American tribes enjoy immunity from suits on contracts made on or off a reservation.2 A tribe is subject to suit only if it has clearly waived its immunity or Congress has expressly authorized the suit.' Tribal immunity was given to the tribes on the principle that tribes are sovereigns or quasi sovereigns enjoying immunity from judicial attack absent their consent.4 The purpose of tribal sovereignty, according to the Supreme Court, is to promote tribal economic development and self-sufficiency.5 Though the Court has expressed its dissatisfaction with the doctrine in light of increased tribal economic self-sufficiency through successful business ventures, …

No Out For The Federal Government: Enforcing Contractual Arbitration Clauses In Federal Government False Claims Actions - U. S. V. Bankers Ins. Co., Sarah A. Wight

Journal of Dispute Resolution

As a party to one-fourth of all civil litigation2 the federal government exerts a looming presence in American judicial proceedings. Thus, attempts by the government to elude obligations under arbitration agreements, if successful, would significantly impact the elite status that pre-dispute contractual arbitration clauses currently hold.' This casenote examines how the United States Court of Appeals for the Fourth Circuit recently addressed this issue in the context of a false claims action.

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

Suppose It's Not True: Challenging Mediation Ideology, Deborah R. Hensler

Journal of Dispute Resolution

Across the country, people who file lawsuits are being diverted from adjudication to mediation. Whereas once mediation was seen as the preferred means of resolving family disputes (especially those involving child custody), now it is mandated for a broad range of civil disputes. Whereas once citizens were called upon to volunteer as mediators in community justice centers outside the courts, now mediation is a line of business for lawyers whose customers are sent to them by the courts. Whereas once dispute resolution theorists called on courts to provide a variety of procedural choices for civil disputants, now courts order litigants …

Lawyer-Negotiator As Mood Scientist: What We Know And Don't Know About How Mood Relates To Successful Negotiation, The, Clark Freshman, Adele Hayes, Greg Feldman

Journal of Dispute Resolution

This article explores two related questions: First, does mood7 shape how well lawyers succeed at negotiation?" Second, can lawyers succeed better at negotiation by understanding and managing the role of mood? We begin by exploring what scientific evidence we currently have about how mild changes in mood are associated with significant differences in success at negotiation. Ultimately, we argue that existing scientific evidence shows mood plays a far more complicated role than negotiators and negotiation scholars usually imagine, but that further research needs to address more carefully exactly how mood works and how it affects lawyers and legal negotiation. We …

Why Suppose - Let's Find Out: A Public Policy Research Program On Dispute Resolution, Lisa B. Bingham

Journal of Dispute Resolution

In this commentary, I suggest that we can get a broader picture of the research agenda to address these policy issues by refining our notions of self-determination. In addition to self-determination over process and outcome in the individual case, we need to start examining who has control over design of the dispute system as a whole. First, this commentary addresses the difference between self-determination at the case level and self-determination in dispute system design and how these two separate dimensions of self-determination can help us distinguish among different uses of mediation and arbitration. Second, using this framework, I attempt to …

Procedural Justice Research And The Paucity Of Trials, Chris Guthrie

Journal of Dispute Resolution

Likewise, I do not mean to criticize Hensler's contribution to this volume. Although she is a prominent procedural justice researcher herself, she is certainly not responsible for the inattention given to the questions I have identified, and her measured conclusions about what might be inferred from the existing research are certainly appropriate. Indeed, I take Hensler' s broader point to be that courts should not mandate mediation simply because they believe as a matter of faith that mediation is a "better" process than others." Rather, courts should base their decisions, to the extent possible, on empirical evidence about the relative …

Finding Out If It Is True: Comparing Mediation And Negotiation Through Research, Craig A. Mcewen, Roselle L. Wissler

Journal of Dispute Resolution

In this article, we first use existing research evidence to contextualize more clearly the place of civil case mediation in the litigation process. When we understand civil mediation as part of adversarial litigation - rather than as distinct from it - we see the importance of comparing mediation and unassisted negotiation. Next, we discuss research and commentary on the barriers to negotiation and the ways in which mediation might help overcome them. This work provides a more pragmatic and empirically grounded perspective on the potential value of mediation than does "mediation ideology" and suggests a wide range of "hypotheses" to …

Mediation As One Step In Adversarial Litigation: One Country Lawyer's Experience, John R. Phillips

Journal of Dispute Resolution

This experience stands in stark contrast to the thesis of Professor Deborah Hensler in her article, Suppose It's Not True: Challenging Mediation Ideology. Therein, Professor Hensler attempts to link social psychological research that she interprets as showing dissatisfaction with the use of mediation compared to adjudication, which, in turn, leads her to conclude that clients should prefer counsel who ordinarily can resolve cases successfully without the help of mediation.7 The fallacy of Professor Hensler's argument is evident in several respects. For one, she relies far too heavily on her own intuition and previous empirical research of marginal relevance, and on …

Disputants' Decision Control In Court-Connected Mediation: A Hollow Promise Without Procedural Justice, Nancy A. Welsh

Journal of Dispute Resolution

Such a uniform commitment to procedural justice might seem natural for the courts. However, the procedural due process jurisprudence indicates that the courts' appreciation of procedural justice is unlikely to translate easily to processes in which the disputants, not the courts, are deemed to exercise control over outcomes. Given the current state of procedural due process jurisprudence, courts may lack both the desire and the ability to demand procedural justice in third party processes that are classified as "consensual." Ironically then, disputants' decision control, which is meaningful to mediation advocates and the courts but a rather hollow promise for disputants, …

Arbitration Agreements In Labor And Employment Contracts: Well Within The Reach Of The Faa - Circuit City Stores, Inc. V. Adams, Lisa M. Eaton

Journal of Dispute Resolution

Despite a series of decisions where the Supreme Court has upheld the use of arbitration in the employment context, the Court has never clearly stated that arbitration agreements contained in employment contracts fall under the Federal Arbitration Act (FAA). This omission has led to a split in the Circuits as to the scope of the FAA coverage ad exemption provisions. The controversy centers on whether the FAA covers all employment contracts except those of employees who transport people or goods in interstate commerce or whether the FAA exempts all employment contracts.

Disputants' Decision Control In Court-Connected Mediation: A Hollow Promise Without Procedural Justice, Nancy A. Welsh

Faculty Scholarship

Professor Deborah Hensler suggests in the lead article of this Symposium issue that the courts' embrace of facilitative, interest-based mediation may have been ill-conceived. She argues that there is insufficient evidence to conclude that litigants are more satisfied with mediation than with adjudicative alternatives such as arbitration and trial. She also urges that there is sufficient evidence to show that litigants prefer processes that vest decision control in third parties. Both of these assertions are subject to challenge,' but this Comment will focus upon the significance of giving decision control to the disputants in consensual processes.

Using available research, this …

Practicing "In The Interests Of Justice" In The Twenty-First Century: Pursuing Peace As Justice, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

In these comments I suggest that in our current world, both international and domestic, practicing "in the interests of justice" includes-indeed, should give great priority to-the "peace-seeking" and "problem solving" aspects of lawyering. I continue to see this as counter-cultural to the more common practices of lawyers who are argumentative, persuasive and articulate debaters, who believe fervently and vigorously that seeking justice, on behalf of a client or cause, means advocating for and "winning" a legal claim. To the contrary, seeking peace for parties (and, indeed, nation-states) in conflict, searching for consensus solutions to seemingly intractable public policy and legal …

Punitive Damages: How Jurors Fail To Promote Efficiency, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Evidence of corporate risk-cost balancing often leads to inefficient punitive damages awards, suggesting that jurors fail to base their decision making on principles of economic efficiency. In this Article, Professor Viscusi presents the results of two experiments regarding jury behavior and punitive damages. In the first experiment, Professor Viscusi found that mock jurors punish companies for balancing risk against cost, although award levels vary depending on how the economic analysis is presented at trial. The results of the second experiment suggested that mock jurors are unwilling or unable to follow a set of model jury instructions designed to generate efficient …

Procedural Justice Research And The Paucity Of Trials, Chris Guthrie

Vanderbilt Law School Faculty Publications

Professor Deborah Hensler tells an important cautionary tale about mandatory mediation in her thoughtful and provocative contribution to this volume. In Suppose It's Not True: Challenging Mediation Ideology, Hensler observes that courts are now requiring litigants to mediate civil cases "on the grounds that litigants prefer [mediation] to traditional litigation," yet there is "a long line of social psychological research on individuals' evaluations of different dispute resolution procedures" consistent with the "idea that litigants might prefer adversarial litigation and adjudication" to mediation.' Hensler acknowledges that "some experimental research has found that subjects prefer mediation," but she argues that "the empirical …

Fit And Function In Legal Ethics: Developing A Code Of Conduct For International Arbitration, Catherine A. Rogers

Faculty Scholarship

In this Article, I develop a methodology for prescribing the normative content of a code of ethics for international arbitration, and in a forthcoming companion article, I propose integrated mechanisms for making those norms both binding and enforceable. In making these proposals, I reject the classical conception of legal ethics as a purely deontological product derived from first principles. I argue, instead, that ethics derive from the interrelational functional role of advocates in an adjudicatory system, and that ethical regulation must correlate with the structural operations of the system. The fit between ethics and function, I will demonstrate, not only …

The Duckwater Shoshone Drug Court, 1997-2000: Melding Traditional Dispute Resolution With Due Process, Ronald Eagleye Johnny

American Indian Law Review

No abstract provided.

Introduction: What Adr Means Today, Theodore J. St. Antoine

Other Publications

The sort of cachet a Hollywood screenplay once ascribed to "plastics" seems today to have adhered to "ADR." ADR stands, of course, for alternative dispute resolution. It refers to various methods by which neutral third parties assist persons engaged in a conflict to settle their differences without invoking the decision-making power of the state. And for many people, ADR has become the byword for a much-needed panacea for an overly litigious society. This book is designed to get behind the mystique of ADR, to show how it really works, and to enhance the skills of anyone interested in exploiting its …

International Legal Developments In Review: 2001, Roger P. Alford

Journal Articles

Contents

• Editor's Preface
• Introduction

When Litigation Is Not The Only Way: Consensus Building And Mediation As Public Interest Lawyering, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

British social philosopher Stuart Hampshire recently articulated the fundamental and foundational principles of the modem conflict resolution movement (and I do call it a movement). He asserted that, "there will always be a plurality of different and incompatible conceptions of the good and there cannot be a single comprehensive and consistent theory of human virtue. Correspondingly, "our political enmities in the city or state will never come to an end while we have diverse life stories and diverse imaginations.'' Hampshire, a socially progressive, socialist philosopher hoped to articulate universal conceptions of the good. In his lifetime of reflection on this …

Perceptions About The Wto Trade Institutions, John H. Jackson

Georgetown Law Faculty Publications and Other Works

This article, based on a lecture given at the inauguration ceremony for the new Advisory Centre on WTO Law, describes the broader world trading landscape into which this new Centre emerges. Taking into account the possible implications of the events on September 11, this article provides a brief analysis of the current trade policy climate, asserting the necessity of institutions for the successful functioning of markets. After a short institutional history of the GATT/WTO, the author describes the importance of institutional rules, treaty text, and practice for the success of the WTO and presents the current debate over what the …

Zoning, Taking, And Dealing: The Problems And Promise Of Bargaining In Land Use Planning, Erin Ryan

Faculty Publications

No abstract provided.

Can Saints Negotiate? A Brief Introduction To The Problems Of Perfect Ethics In Bargaining, Scott R. Peppet

Publications

No abstract provided.

Twenty-Five Years Later With Promises To Keep: Legal Education In Dispute Resolution And Training Of Mediators, Lela P. Love

Articles

No abstract provided.

Separability And Competence-Competence In International Arbitration: Ex Nihilo Nihil Fit? Can Something Indeed Come From Nothing?, Robert H. Smit

Faculty Scholarship

The doctrine of separability provides that an arbitration clause is “separable” from the contract containing it and thus may survive a successful challenge to the validity of the contract. The doctrine of competence-competence provides that arbitrators have jurisdiction to decide challenges to the arbitration agreements upon which their own jurisdiction is based. These two doctrines have appropriately been called the conceptual cornerstones of international arbitration as an autonomous and effective form of international dispute resolution. The doctrines, taken together, ensure that the parties’ intent to arbitrate any disputes that arise out of their international contractual relationship is effectuated without undue …