Dispute Resolution and Arbitration Commons^™

Moving From Mandatory: Making Adr Voluntary In New York Commercial Division Cases, Ari Davis

Cardozo Journal of Conflict Resolution

Due to its success during the last thirteen years, New York's Commercial Division in the state's Supreme Court has become the model for other states and countries seeking to establish a commercial division for their court systems. Before 1993, New York's state court system had its dockets clogged with commercial cases. Judges who heard commercial litigation cases often did not have the expertise or resources to handle them well or give them proper attention. As a result, New York businesses turned to Delaware's Chancery Court, federal courts, and private dispute resolution to resolve their disputes and avoid the New York …

Helping Those Who Are Helping Us: Sarbanes-Oxley Whistleblower Protection And Its Interplay With Arbitration, Adam Fisher

Cardozo Journal of Conflict Resolution

The accounting profession took a major blow to its credibility in 2002 when numerous scandals surfaced on the front pages of newspapers seemingly everyday. The most notable stories told of two women who, despite the enormous pressure and harassment they knew they would face, came forward to reveal the ugly truth behind the facades of America's corporate skyscrapers. Cynthia Cooper and Sherron Watkins, employees at WorldCom and Enron respectively, blew the whistle on major accounting frauds at these companies. Their employers' retaliation was harsh and swift, revealing the truth about how todays' corporate juggernauts operate.

The Road Less Traveled: Using Adr To Help Reform Firsttime Juvenile Offenders, Maggie Gertz

Cardozo Journal of Conflict Resolution

Section I of this Note details the history of the juvenile justice system, making specific reference to the various developments in juvenile justice policy, concluding with a discussion of the conflicts involved in juvenile offending. Section II examines ADR techniques that have been used in the juvenile justice field, with some success, as an alternative to further prosecution, incarceration or other punishment, highlighting Victim-Offender Mediation and Family Group Conferencing. In Section III, I analyze why ADR techniques are an ideal solution to the ills of the current system, and how these methods meet many of the goals of the traditional …

An Unfair Advantage: Comparing The International Court Of Justice To A Form Of Adr And Why It Was Inappropriate For The Court To Issue An Advisory Opinion In The Case Of Israel's Separation Fence, Mimi Trenk

Cardozo Journal of Conflict Resolution

This Note will begin with a concise background of the ArabIsraeli conflict. It will then explain the three arguments presented to the Court as to why it should have declined to exercise jurisdiction and the Court's response. It will explore the similarities of non-binding arbitration, as a form of alternative dispute resolution, and the Advisory Opinion. It will then examine whether, in the interests of justice, it was appropriate for the Court to issue the opinion, even though it is considered to be non-binding. This Note will examine the Israeli Supreme Court as the proper forum to enforce the rights …

Transparency In International Commercial Arbitration, Catherine A. Rogers

Faculty Scholarship

Scholars have long been making the case for expanding transparency in the international commercial arbitration system, but recently these proposals have taken on a greater sense of urgency and an apparent willingness to forcibly impose transparency reforms on unwilling parties. These new transparency advocates exhort the general public's stakehold in many issues being arbitrated, which they contend necessitates transparency reforms, including compulsory publication of international commercial arbitration awards.

In this symposium essay, I begin by developing a definition of transparency in the adjucatory setting, and conceptually distinguishing from other concepts, like "public access" and "disclosure," which are often improperly treated …

Investor-State Dispute Settlement Between Developed Countries, William S. Dodge

Vanderbilt Journal of Transnational Law

Free trade agreements between developed countries now frequently contain provisions on investor protection, but the resolution of disputes remains problematic. Chapter 11 of the North American Free Trade Agreement (NAFTA) allows investors to bring direct claims against a host state before an international tribunal without exhausting domestic remedies. This has resulted in a number of claims against the United States by Canadian investors and against Canada by U.S.investors. Chapter 11 of the Australia-United States Free Trade Agreement (AUSFTA) does not permit direct claims, relying instead on a state-to-state dispute resolution mechanism.

This Article reviews the evolution of investment-dispute resolution from …

Public Access To Information In Civil Litigation Vs. Litigant's Demand For Privacy: Is The Vanishing Trial An Avoidable Consequence, Dennis J. Drasco

Journal of Dispute Resolution

Recently, the legal and academic communities have been studying the phenomenon of the "vanishing trial." The phenomenon is an observation of the fact that the American court system is experiencing a trend of shrinking trial dockets. At least one scholar has partially attributed the decline in trials to the value placed upon settlement rather than adjudication within our justice system. Those competing values have spawned a debate regarding the secrecy and confidentiality characteristic of settlements versus public access to information in civil litigation. Jurisdictions that have addressed the issue have noted the complexities involved in regard to the factors to …

Designer Trials, Elizabeth Thornburg

Journal of Dispute Resolution

This article is a thought experiment, or maybe a nightmare, about the intersection of freedom of contract and the trials that have not vanished. Could contracting parties effectively agree in advance of a dispute that any litigation of the case will comply with certain rules? Would such an agreement be enforced even in a contract of adhesion? If so, parties with sufficient bargaining leverage could design away many of the characteristics of litigation that they find unappealing without the need to resort to private processes. The result: a designer trial with the procedural deck stacked in favor of the party …

Parties To International Commercial Arbitration Agreements Beware: Bankruptcy Trumps Supreme Court Precedent Favoring Arbitration Of International Disputes, Lindsay Biesterfeld

Journal of Dispute Resolution

Phillips v. Congelton (In re White Mountain Mining Co.), presents a heightened version of the conflict between the general policy favoring enforcement of arbitration agreements and the policy favoring resolution of bankruptcy-related claims in the bankruptcy court proceedings as the case involves a dispute over the enforcement of an international agreement to arbitrate a claim that is a "core" bankruptcy proceeding. In Phillips, the Fourth Circuit analyzed the underlying purposes of both the bankruptcy code and the federal arbitration statutes, and resolved the conflicting purposes of the two by giving greater deference to the policy favoring resolution of bankruptcy-related claims …

Mandatory Mediation: The Extra Dose Needed To Cure The Medical Malpractice Crisis, Florence Yee

Cardozo Journal of Conflict Resolution

This Note discusses the advantages and drawbacks of mandating participation in mediation in medical malpractice disputes. Part II of this Note reviews the extent of the current medical malpractice crisis. Part III examines litigation as the traditional means of resolving medical malpractice disputes and suggests that litigation's weaknesses eclipse any of its strengths. Part IV evaluates the lingering challenges to arbitration, accounting for its ineffectiveness in resolving medical malpractice disputes. Part V analyzes why mediation may be the better alternative to both litigation and arbitration in resolving such disputes, and how its hurdles can be best surmounted by mandatory mediation. …

A Modest Proposal To Streamline Fair Use Determinations, David Nimmer

Cardozo Arts & Entertainment Law Journal

No abstract provided.

No Longer Just Company Men: The Flexible Workforce And Employment Discrimination, Review Essay On 'From Widgets To Digits Employment Regulation For The Changing Workplace', By Katherine V.W. Stone (2004), Miriam A. Cherry

All Faculty Scholarship

In her new book, From Widgets to Digits, Professor Katherine V.W. Stone reviews and analyzes the dramatic changes, both technological and demographic, that have transformed work in America during the last thirty years. The book broadly documents the shift from an economy that primarily relies on the production and consumption of goods to one in which learning and the transmittal of knowledge is central to the creation of wealth. Professor Stone describes how in the past, workers may have expected job security and long-term employment, but that recent economic, social, and technological change have led to a more temporary and …

It's About The Relationship: Collaborative Law In The Employment Context, Marcia L. Mccormick

All Faculty Scholarship

Work is central to American life and drives us in fundamental ways. And the workplace, as a result, dominates our lives. We are spending ever greater amounts of time in the workplace and less time in civic and social engagements. As a consequence, our relationships at work have become so significant that they are nearly as important to us as our family relationships. In fact, the employment relationship is similar to the family relationship in the emotional support from coworkers it can provide and in the financial support it provides. Because the employment relationship is so common and psychologically so …

Title Page

Journal of Dispute Resolution

No abstract provided.

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.

Introduction To Vanishing Trial Symposium, John Lande

Journal of Dispute Resolution

This symposium in the Journal of Dispute Resolution takes the next step. It includes some analysis of trial court phenomena in the U.S. and expands the focus with greater emphasis on (1) investigation of trial trends outside U.S. courts, (2) explanations of the causes of changing trial patterns, (3) speculations about possible effects of changing litigation patterns, and (4) recommendations to improve the operation of the legal system.

World Without Trials, A, Marc Galanter

Journal of Dispute Resolution

Imagine some friendly visitors to America-from Europe or Asia or even from Mars-who are seeking to comprehend the American legal system. Our Martian visitors would have seen A Civil Action and The Runaway Jury at the Red Canal multiplex and surely they have seen syndicated episodes of the ubiquitous Law and Order. Upon arrival they turn on the TV news in their hotel room and scan the newspaper slipped under the door and find both saturated with accounts of square-jawed wife murderers, egomaniacal corporate executives, and freakish entertainers on trial. Unsurprisingly, our visitors readily conclude that the trial is the …

Vanishing Trials: An English Perspective, Robert Dingwall, Emilie Cloatre

Journal of Dispute Resolution

This paper reviews the recent history of civil litigation in England and Wales. While previous work by Professor Kritzer has shown an absolute decline in trials over the last fifty years, with some fluctuation around this trend, this comment suggests that this may now have bottomed out. Given the evidence of a simultaneous, and continuing, decline in the number of claims filed, it may even be the case that trials are, at least temporarily, playing a larger part in the civil justice system than they have for many years. In contrast to the experience in the U.S., these changes seem …

What We Know And What We Should Know About American Trial Trends, Margo Schlanger

Journal of Dispute Resolution

This brief essay first summarizes some of that knowledge-in particular, the chief features we know about the shrinking civil trial docket in federal district courts. Next, it proposes four areas of future investigation necessary to understand the contours of the trend and to assess its causes. Then, I bring together the causal hypotheses that have already been proposed, none of which has yet been securely tested. Finally, in an appended bibliography, I list data sources, reports, and scholarly analyses that will be useful to those doing future work.

Vanishing Or Increasing Trials In The Netherlands, Carolien Klein Haarhuis, Bert Niemeijer

Journal of Dispute Resolution

In this article, we will address the question of whether something like vanishing trials exists in the Netherlands. This could be the case, as some of the causes of the decline in the number of trials advanced by Galanter are also observed in the Netherlands. ADR is gaining popularity, the costs of court procedures are on the rise, and there clearly exists a development toward "managerial justice."

Worlds In A Small Room, Christopher Honeyman

Journal of Dispute Resolution

In the lead article of this symposium, Marc Galanter points out that steeply declining trial rates hold true across a variety of trial genres, including state and federal courts, criminal and civil matters, and even federal administrative agencies' own trial equivalents. This brief essay will explore a new setting in which to examine Galanter's thesis.

Not Quite A World Without Trials: Why International Dispute Resolution Is Increasingly Judicialized, Andrea Kupfer Schneider

Journal of Dispute Resolution

The focus of this brief essay is to first outline some of the factors leading to increasing judicialization on the international level where public disputes (disputes between countries) are increasingly resolved by a neutral third party. In some cases, this increased judicialization includes arbitration (which we might put under the category of ADR in the U.S.). However, the use of arbitration at the international level is not ADR as we would define it in the U.S., since the important element at the international level is that the decision-making power is handed over to a third party-whether we call that a …

Reconciling Professional Legal Education With The Evolving (Trial-Less) Reality Of Legal Practice, Julie Macfarlane, John Manwaring

Journal of Dispute Resolution

Our focus in this paper is the impact of these trends on legal education, especially professional legal education. What is undeniable is that lawyers (and judges) are more and more involved in legal tasks which are not related to trials. This does not necessarily mean that the practice of law is focused exclusively on settlement activities, although such activities are increasingly important. Pre-trial processes and procedures including motions, discovery and mandatory settlement conferences take up more time than ever before. Lawyers are playing a different role, offering different kinds of service to their clients, and performing different tasks

How Much Justice Can We Afford: Defining The Courts' Roles And Deciding The Appropriate Number Of Trials, Settlement Signals, And Other Elements Needed To Administer Justice, John Lande

Journal of Dispute Resolution

This article discusses how the court system can function optimally given declining trial rates and the limited resources available. It does not provide a detailed analysis of court financing but rather discusses broad issues relating to the role of trials in the legal system.

Whose Finding Is It Anyway: The Division Of Labor Between Courts And Arbitrators With Respect To Waiver, David Lefevre

Journal of Dispute Resolution

Given the emphasis with which the Supreme Court has made clear its policy favoring arbitration, it is not surprising that some courts may have reacted by divesting themselves of a "gateway issue" long decided by courts. Traditionally, courts have determined whether a party has acted inconsistently with its right to arbitration, thereby waiving it, but a few courts found that the question is properly before an arbitrator. Recently, the First Circuit Court of Appeals in Marie v. Allied Home Mortgage Corporation2 established a framework through which the federal circuits may begin to close the potential split of authority regarding waiver …

After Basic Mindfulness Mediation: External Mindfulness, Emotional Truthfulness, And Lie Detection In Dispute Resolution, Clark Freshman

Faculty Scholarship

No abstract provided.

Domestic Violence In Ghana: The Open Secret, Nancy Chi Cantalupo, Lisa Vollendorf Martin, Kay Pak, Sue Shin

Georgetown Law Faculty Publications and Other Works

This report discusses the findings of a Georgetown Law International Women’s Human Rights Clinic fact-finding team that traveled to Ghana, Africa in March 2003 to investigate domestic violence. The report reviews the contours of the domestic violence problem in Ghana and outlines the ways in which Ghanaian law and procedure was insufficiently addressing the problem at the time. Its chief findings include that the Ghanaian laws existing in 2003 inadequately punished perpetrators and protected victims of domestic violence and that court and police enforcement of the existing law was lacking, including because the government was allowing the removal of domestic …

Demand For A Jury Trial And The Selection Of Cases For Trial, Joni Hersch

Vanderbilt Law School Faculty Publications

This paper uses a unique data set to examine how parties in civil litigation choose whether to demand a jury trial or to waive this right and whether trial forum influences the probability of trial versus settlement. Plaintiffs are more likely to demand trial by jury when juries are relativety more favorable to plaintiffs in similar cases and jury trials are relatively less costly than bench trials. Cases in which jury trials are demanded are 5.5 percentage points more ikely to settle without a trial than cases in which jury trials are waived. This differential settlement rate by potential trial …

How To Deal With Multi-Party Nominations Of Arbitrators In International Commercial Arbitration - A Comparative Study Of Appointment Procedures With Emphasis On U.S.-European Commerce Between Private Entities, Marie-Beatrix Tupy

LLM Theses and Essays

The nomination procedure for the Arbitral Tribunal in commercial arbitration is one of the crucial points in the arbitral procedure. Parties have to have in mind the provisions of the New York Convention regarding the setting aside of an award in case of a failure during the nomination procedure of the tribunal. Besides from the famous Dutco case on multi-party arbitrations and their nomination procedures have received highest interest within the international arbitral world. As the thesis will comparatively show, all major arbitral institutions have updated their Rules, countries have even rendered new legislation with respect to the nomination procedure …