Dispute Resolution and Arbitration Commons^™

Untimely Death Of Wrongful Death Claims: Ohio Removes Decedent-Employee Wrongful Death Claims From The Arbitral Forum, An, Christopher D. Vanderbeek

Journal of Dispute Resolution

When Bob dies, Bob's representative could file either action in order that his estate (in survival) or beneficiaries (in wrongful death) be compensated for losses stemming from his injuries or death. But in Peters v. Columbus Steel Castings Company, a more complex issue arose-what if Bob signed an agreement to arbitrate all of his claims against his employer? Would that bind Bob's representative to arbitrate an action in survival? In wrongful death? Both? The Ohio Supreme Court answered that Bob's representative would be compelled to arbitrate the survival claim, but not the wrongful death claim, as the latter is independent …

Knowing And Voluntary Standard: Is The Sixth Circuit's Test Enough To Level The Playing Field In Mandatory Employment Arbitration, The, Christina Semmer

Journal of Dispute Resolution

Most courts require that for an individual to waive her Seventh Amendment right to trial by jury, she must knowingly and voluntarily waive that right. This heightened requirement for waiver exists because the United States Supreme Court has found that "[tlhe trial by jury is justly dear to the American people... and every encroachment upon it has been watched with great jealousy." Seemingly this standard should apply to mandatory employment arbitration agreements, as shifting the venue from the courts to the arbitral tribunal implicitly means waiving the right to trial by jury. However, because the Federal Arbitration Act ("FAA") requires …

Whither Arbitration?, Peter B. Rutledge

Scholarly Works

Over the past several decades, scholars and policymakers have debated the future of arbitration in the United States. Those debates have taken on new significance in the present Congress, which is considering a variety of reform proposals. Among the most widely watched are ones that would prohibit the enforcement of predispute arbitration clauses in employment, consumer, and franchise contracts. Reviewing the available empirical literature, the paper explains how many of the assumptions driving the arbitration reform debate are unproven at best and flatly wrong at worst. It then tries to sketch out the economic impact of any move by Congress …

State Legislative Update, Gregory Cassens, Matthew D. Decker, Carly Duvall, Claire Mcguire

Journal of Dispute Resolution

The purpose of this Bill is to provide an alternative approach for individuals with a cause of action against a municipality.' Rather than the costly and time-consuming traditional method of hiring an attorney and filing a lawsuit, House Bill 2631 offers individuals an opportunity for Alternative Dispute Resolution ("ADR") in the form of arbitration. The Bill would allow any individual with a claim in contract or tort against a municipality to require the municipality to submit to the arbitration of the claim. The purpose of House Bill 2631 is to facilitate the resolution of individual claims against a city. However, …

No Exceptions: How The Legitimate Business Justification For Unconscionability Only Further Demonstrates California Courts' Disdain For Arbitration Agreements, Thomas H. Riske

Journal of Dispute Resolution

In Davis v. O'Melveny & Myers, the Ninth Circuit Court of Appeals considered whether an arbitration agreement adopted by a law firm and distributed to its employees was enforceable. When interpreting an arbitration agreement, how the contract doctrine of unconscionability should be applied by state courts, is an essential element of this case. While the Federal Arbitration Act ("FAA") has been interpreted to preempt any state law in conflict with it, state laws governing the necessary foundation to revoke a contract remain unaffected. In considering these principles, state courts have applied the doctrine of unconscionability to arbitration agreements in the …

Condominium Arrangements In International Practice: Reviving An Abandoned Concept Of Boundary Dispute Resolution, Joel H. Samuels

Articles

No abstract provided.

Brief Amicus Curiae Of The National Academy Of Arbitrators In Support Of Respondents, 14 Penn Plaza V. Pyett, No. 07-581 (U.S. June 27, 2008), James Oldham

U.S. Supreme Court Briefs

No abstract provided.

Is That All There Is? "The Problem" In Court-Oriented Mediation, Leonard L. Riskin, Nancy A. Welsh

Faculty Scholarship

The alternative process of mediation is now well-institutionalized and widely (though not universally) perceived to save time and money and satisfy lawyers and parties. However, the process has failed to meet important aspirations of its early proponents and certain expectations and needs of one-shot players. In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and other ordinary civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues …

Is That All There Is? "The Problem" In Court-Oriented Mediation, Leonard L. Riskin, Nancy A. Welsh

UF Law Faculty Publications

The alternative process of mediation is now well-institutionalized and widely (though not universally) perceived to save time and money and satisfy lawyers and parties. However, the process has failed to meet important aspirations of its early proponents and certain expectations and needs of one-shot players. In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and other ordinary civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues …

Mediation And The Art Of Regulation, Nadja Alexander

Research Collection Yong Pung How School Of Law

In a political climate filled with talk of how to best regulate mediation, it is surprising that so little regulatory theory has been brought into the discussion. The aim of this paper is to provide a conceptual framework for informed debate in relation to the regulation of mediation. The framework comprises two parts. First, four international regulatory trends in mediation are introduced: the market-contract, self-regulatory, formal framework and formal legislative approaches. Against this background the second part deals with the specific content of regulatory provisions on mediation. The resulting framework is called the Mediation Mix, which brings form and content …

Enforcement Of Arbitral Awards In Nigeria: An Appraisal Of Emerging Trends, Foluke Olamiposi Omosuyi

Archived Theses and Dissertations

No abstract provided.

Arbitration And Article Iii, Peter B. Rutledge

Vanderbilt Law Review

Arbitration implicates serious constitutional concerns that have not received adequate attention in case law or commentary. Recent litigation in the D.C. Circuit over the constitutionality of the North American Free Trade Agreement ("NAFTA") represents the most recent, high-profile example. A centerpiece of NAFTA and its implementing legislation is an arbitration mechanism that divests Article III courts of virtually all jurisdiction over countervailing duty and anti-dumping claims and invests that authority in panels of Associate Professor of Law, Columbus School of Law, Catholic University of America. Arbitration implicates serious constitutional concerns that have not received adequate attention in case law or …

Cafa's Impact On Litigation As A Public Good, Elizabeth Chamblee Burch

Cardozo Law Review

No abstract provided.

Arbitration And Article Iii, Peter B. Rutledge

Scholarly Works

Does arbitration violate Article III? Despite the critical need for a coherent theory to answer this question, few commentators or courts have made serious attempts to provide one. For much of the country's history, federal courts conveniently could avoid this nettlesome question. Prior to the twentieth century, courts simply declined to enforce pre-dispute arbitration agreements as unenforceable attempts to appropriate their jurisdiction. From the early decades of the twentieth century (with the enactment of the Federal Arbitration Act (“FAA”) in 1925) through the 1960s, the non-arbitrability doctrine prevented arbitrators from resolving issues of federal statutory law. Notably, while both of …

Non-Signatories And The New York Convention, William W. Park

Faculty Scholarship

In the context of arbitrations subject to the New York Convention, the term ,non-signatory' might evoke several lines of inquiry. Must commitments to arbitrate be signed? What legal framework guides decision-making about who agreed to arbitrate? How should courts monitor an arbitrator's assertion of jurisdiction over someone who never signed an arbitration agreement?

The second of these matters - rules about who agreed to arbitrate - will retain our attention in this paper. While few commentators deny that arbitration rests on consent,¹ less unanimity exists about what exactly constitutes such consent when one side contests that it ever waived …

Challenges Facing Investment Disputes: Reconsidering Dispute Resolution In International Investment Agreements, Susan Franck, Karl P. Sauvant, Michael Chiswick-Patterson, Rainer Geiger, José E. Alvarez, M. Sornarajah, Patrick Juillard, Jeswald W. Salacuse, Giorgio Sacerdoti, Anna Joubin-Bret, Hugo Perezcano Díaz, Michael K. Tracton, Christoph Schreuer, Howard Mann, Katia Yannaca-Small, Barton Legum, Jan Paulsson, Asif H. Qureshi, Shandana Gulzar Khan, Christopher Brummer, Brian J. Rapier

Contributions to Books

This volume brings together significant contributions from leading voices in academia, the legal profession and government on the increasingly important topic of international investment and the legal system in which it operates. With the burgeoning size of international capital flows matched only by an explosion in international agreements intending to regulate the field, there is increasing potential for incoherence amongst and between treaties and arbitral decisions.

Appeals Mechanism in International Investment Disputes compiles, compares and contrasts the analysis and arguments of the leading scholars, practitioners and government officials on the future of the international investment law regime. Its special emphasis …

C-Drum News, V. 1, No. 2, Spring 2008

The C-DRUM News

No abstract provided.

Resolving Conflict In Non-Ideal, Complex Systems: Solutions For The Law-Science Breakdown In Environmental And Natural Resource Law, Barbara Cosens

Articles

In 2006, the U.S. Supreme Court decided a consolidated case concerning the scope of the U.S. Army Corps of Engineers' jurisdiction to require permits for dredge and fill of wetlands under section 404 of the Clean Water Act, issuing a plurality, two concurrences, and two dissents. Each opinion has a solid legal foundation, yet none truly makes sense if the science of the resource in question is considered. The opinions in Rapanos v. United States illuminate the struggle at the law-science interface. The problem is not due to either a failure in legal reasoning or a failure in scientific methodology …

An Ecosystem Perspective On Collaboration For The Colorado River, Robert W. Adler

Nevada Law Journal

No abstract provided.

An Appreciation Of Marc Galanter's Scholarship, John M. Lande

Faculty Publications

This brief essay highlights three of Marc Galanter's works to illustrate qualities that seem especially worth emulating. Galanter's classic article, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, focuses on how the legal system actually operates in daily life and challenges a conventional wisdom that simply providing have-nots with more lawyers would substantially reduce inequality. The article is particularly relevant to the dispute resolution field, focusing on the vast majority of legally-oriented behavior that occurs outside of court. It distinguishes truly private dispute resolution (such as self-help, withdrawal from relationships, and intra-group processes) from settlement …

Leaving More Than Money: Mediation Clauses In Estate Planning Documents, Lela P. Love, Stewart E. Sterk

Articles

When probate disputes arise, an increasing number of courts have been referring those disputes to mediation. Estate planners, however, have been less proactive about drafting wills to include mediation clauses that would anticipate estate disputes and channel them away from litigation. When a will mandates mediation, the will provides a dispute resolution mechanism designed to preserve family harmony, conserve estate assets, and avoid airing the family's "dirty laundry "-objectives common to many testator. Mediation clauses in wills are no panacea. They are of little value to testators who exalt control over estate assets above all other concerns, and they are …

Improving Asylum-Seeker Credibility Determinations: Introducing Appropriate Dispute Resolution Techniques Into The Process, Daniel Forman

Cardozo Journal of International and Comparative Law

The note argues that incorporating Alternative Dispute Resolution (ADR) techniques into asylum adjudications can enhance the fairness and accuracy of credibility determinations. It proposes a two-step process, including preliminary fact-finding and early neutral evaluation, to address challenges such as cultural differences, trauma, and adversarial dynamics.

Getting To "Let's Talk": Legal And Natural Destabilizations And The Future Of Regional Collaboration, Bradley C. Karkkainen

Nevada Law Journal

No abstract provided.

On Perfect Storms And Sacred Cows Of Collaboration, Comments On Bradley Karkkainen, Getting To "Let's Talk": Legal And Natural Destabilzations And The Future Of Regional Collaboration, Kirk Emerson

Nevada Law Journal

No abstract provided.

Getting To "Let's Talk": Comments On Collaborative Environmental Dispute Resolution Processes, Carrie Menkel-Meadow

Nevada Law Journal

No abstract provided.

Séances, Ciénegas, And Slop: Can Collaboration Save The Delta?, Bret C. Birdsong

Nevada Law Journal

No abstract provided.

Collaboration In Mexico: Renewed Hope For The Colorado River Delta, Francisco Zamora-Arroyo, Osvel Hinojosa-Huerta, Edith Santiago, Emily Brott, Peter Culp

Nevada Law Journal

No abstract provided.

Collaboration And The Colorado River Compact, Patricia Mulroy

Nevada Law Journal

No abstract provided.

Collaborative Management Of The Glen Canyon Dam: The Elevation Of Social Engineering Over Law, Joseph M. Feller

Nevada Law Journal

The operation of Glen Canyon Dam on the Colorado River affects several downstream resources and water uses including water supply for consumptive uses in Arizona, California, and Nevada, hydroelectric power production, endangered species of native fish, recreational angling for non-native fish, and recreational boating in the Grand Canyon. Decisions about the magnitude and timing of water releases through the dam involve trade-offs between these resources and uses. The numerous laws affecting dam operations create a hierarchy of legal priorities that should govern these decisions. At the top of the hierarchy are mandatory requirements for water storage and delivery and for …

Beyond Conjecture: Learning About Ecosystem Management From The Glen Canyon Dam Experiment, Alejandro E. Camacho

Nevada Law Journal

No abstract provided.