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Dispute Resolution and Arbitration Commons™

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2009

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Articles 151 - 180 of 190

Full-Text Articles in Dispute Resolution and Arbitration

Coping With Combat Claims: An Analysis Of The Foreign Claims Act's Combat Exclusion, Jordan Walerstein Jan 2009

Coping With Combat Claims: An Analysis Of The Foreign Claims Act's Combat Exclusion, Jordan Walerstein

Cardozo Journal of Conflict Resolution

The purpose of this Note is to show that, although the FCA has positively impacted U.S. military operations, the so-called "combat exclusion" severely hampers its effectiveness. Therefore, Congress should eliminate the distinction between combat and noncombat claims and adopt a unified, permanent claims system to adjudicate all claims made by civilians against U.S. military forces operating overseas. Part II of this Note explores the origins of the "combat exclusion" in international law, and Part III traces the history of civilian compensation through World War I and World War II. Part IV surveys U.S. military use of the FCA and ad …

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Judges Gone Wild: Why Breaking The Mediation Confidentiality Privilege For Acting In "Bad Faith" Should Be Reevaluated In Court-Ordered Mandatory Mediation, Samara Zimmerman Jan 2009

Judges Gone Wild: Why Breaking The Mediation Confidentiality Privilege For Acting In "Bad Faith" Should Be Reevaluated In Court-Ordered Mandatory Mediation, Samara Zimmerman

Cardozo Journal of Conflict Resolution

This Note focuses on the reasons why a good faith requirement or a bad faith exception for breaking mediation confidentiality is objectionable and offers an alternative for the Florida court system that, if implemented, could mitigate such disadvantages. I will discuss "the intersection between [a] court-ordered mediation, the confidentiality of which is mandated by law ... and the power of a court to control proceedings," and persons who appear before it by sanctioning conduct that taking place in mediation. Part II of this Note will begin by providing a background to the Doe v. Francis civil case. It will highlight …

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Arbitration After Hall Street V. Mattel: What Happens Next?, Stanley A. Leasure Jan 2009

Arbitration After Hall Street V. Mattel: What Happens Next?, Stanley A. Leasure

University of Arkansas at Little Rock Law Review

No abstract provided.

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Family Group Conferencing And Child Protection Mediation: Essential Tools For Prioritizing Family Engagement In Child Welfare Cases, Kelly Browe Olson Jan 2009

Family Group Conferencing And Child Protection Mediation: Essential Tools For Prioritizing Family Engagement In Child Welfare Cases, Kelly Browe Olson

Law Faculty Scholarship

Family group conferencing (FGC) and child protection mediation maximize family engagement in child welfare cases by prioritizing families' roles in discussions and decisions. This article examines how FGC helps professionals to focus on family and community strengths, encourages family engagement, and provides targeted case plans for families and timely, permanent placements for children. It explores how courts and agencies use these interventions to empower families to contribute to resolutions in ways that are not possible in traditional litigation processes. These complementary processes help children and families by providing forums where families are allowed to make informed choices and take an …

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Building The Civilization Of Arbitration - Introduction, Thomas E. Carbonneau Jan 2009

Building The Civilization Of Arbitration - Introduction, Thomas E. Carbonneau

Faculty Scholarship

The U.S. Supreme Court's work product has generated a large and growing arbitration bar. It also has finally begun to stimulate a greater volume of academic activity on the topic of arbitration. The work of legal practitioners and academics,along with the courts' decisional law, are "Building a Civilization of Arbitration" that codifies advances and grapples with the controversial aspects of law-in-the making.The Penn State Dickinson School of Law takes great pride in welcoming a distinguished group of lawyers and law teachers to the pages of its Law Review.They are the leaders in the field of arbitration. Their contributions identify the …

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A Theory Of Wto Adjudication: From Empirical Analysis To Biased Rule Development, Juscelino F. Colares Jan 2009

A Theory Of Wto Adjudication: From Empirical Analysis To Biased Rule Development, Juscelino F. Colares

Vanderbilt Journal of Transnational Law

The positive theory of litigation predicts that, under certain conditions, plaintiffs and defendants achieve an unremarkable and roughly equivalent share of litigation success. This Article, grounded in an empirical analysis of WTO adjudication from 1995 through 2007, reveals a high disparity between Complainant and Respondent success rates: Complainants win roughly ninety percent of the disputes. This disparity transcends Case Type, Party Identity, Income Level, and other litigant-specific characteristics. After analyzing and discarding standard empirical and theoretical alternative explanations for the systematic disparity in success rates, this study demonstrates, through an examination of patterns in WTO adjudicators' notorious decisions, that biased …

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Lawyers Without Borders, Catherine A. Rogers Jan 2009

Lawyers Without Borders, Catherine A. Rogers

Faculty Scholarship

Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy …

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Restating The U.S. Law Of International Commercial Arbitration, Catherine A. Rogers Jan 2009

Restating The U.S. Law Of International Commercial Arbitration, Catherine A. Rogers

Faculty Scholarship

In December 2007, the American Law Institute ("ALI") approved the development of a new Restatement, Third, of the U.S. Law of International Commercial Arbitration (the "Restatement"). On February 23, 2009, the Restaters and authors of this Essay presented a Preliminary Draft of a chapter of the Restatement (the "Draft") at an invitational meeting in New York. The Draft addresses Recognition and Enforcement of Arbitral Awards. This brief Essay provides some reflections of the Reporters from the process of producing and presenting the Draft. Subsequent Drafts have been produced and approved by the ALI.

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Judicial Approbation In Building The Civilization Of Arbitration, Thomas E. Carbonneau Jan 2009

Judicial Approbation In Building The Civilization Of Arbitration, Thomas E. Carbonneau

Faculty Scholarship

This article describes and assesses the work of three national courts in regard to arbitration. The English experience demonstrates that judicial diffidence toward arbitration and concomitant reverence for the cohesion of substantive law can hamper the acceptance and function of arbitration within the legal system. The French and American experiences attest to a contradistinctive use of judicial authority in regard to arbitration. In both legal systems, the courts have been instrumental to the elaboration of a receptive and accommodating law on arbitration. In these legal systems, legislative enactments are used as a springboard for developing a judicial policy and decisional …

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Table Of Contents - Issue 1 Jan 2009

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

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Crowning The New King: The Statutory Arbitrator And The Demise Of Judicial Review, Michael H. Leroy Jan 2009

Crowning The New King: The Statutory Arbitrator And The Demise Of Judicial Review, Michael H. Leroy

Journal of Dispute Resolution

Judicial review of arbitration awards is highly deferential-but when does it become rubber stamping? Using original data, I find that federal courts vacated only 4.3 percent of 162 disputed arbitration awards. A sub-sample of forty-four employment discrimination arbitration awards under Title VII produced similar results. By comparison, federal Courts of Appeals in 2006 reversed 12.9 percent of 5,917 rulings made by civil court judges on the merits of legal claims.

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Future Of Mediation: A Sociological Perspective, The, Brian Jarrett Jan 2009

Future Of Mediation: A Sociological Perspective, The, Brian Jarrett

Journal of Dispute Resolution

Arguably, these sociological pressures are central to the future direction of the mediation field and, in the aggregate, provide a useful building block in the development of an emerging sociology of mediation-a development that could fill the theory-to-practice gap which currently bedevils the mediation field. Understanding sociological forces reminds us of the constraints within which mediators, as social actors, must work. More importantly, an awareness of these pressures is, conceivably, essential to the development of an autonomous and discernible profession that remains capable of welcoming a diversity of practitioners and their respective approaches. I summarize each of these pressures below …

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Confidential Arbitration Of Whistleblower Actions: A Loophole That Could Effectively Undo The Sarbanes-Oxley Act Of 2002, Nicholas E. Eckelkamp Jan 2009

Confidential Arbitration Of Whistleblower Actions: A Loophole That Could Effectively Undo The Sarbanes-Oxley Act Of 2002, Nicholas E. Eckelkamp

Journal of Dispute Resolution

Among Sarbanes-Oxley Act of 2002 's many requirements and protections are protections for whistleblowers, the Sherron Watkins' and Cynthia Coopers' of the world, who are the first to take risks to alert others of a potential fraud. These whistleblowers normally would be able to utilize the court system to vindicate their rights in the event of a retaliatory employment action. Recently, however, employers have begun using mandatory arbitration agreements to keep potentially embarrassing whistleblower actions out of the court system. Guyden v. Aetna, Inc. is a recent Second Circuit case that examined the enforceability of such agreements, ultimately holding that …

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Licensing Technology To The Brics: The Case For Adr, Aaron Pereira Jan 2009

Licensing Technology To The Brics: The Case For Adr, Aaron Pereira

Cardozo Journal of Conflict Resolution

This Note seeks to explore the application of mechanisms of Alternative Dispute Resolution ("ADR") to overcome problems associated with the traditional methods of international patent litigation, with a focus on the BRIC countries. It starts with an outline of patent rights including their international licensing. The Note will then move on to a discussion of the present mechanisms of international patent protection and perceived problems with the current system, the ways in which ADR can help overcome these problems and the limitations of ADR in this field. Finally, the Note will examine the enforcement of ADR awards, the application of …

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Alternative Dispute Resolution In Small Consensual Litigation: Too Much Of A Good Thing?, Mark S. Simms Jan 2009

Alternative Dispute Resolution In Small Consensual Litigation: Too Much Of A Good Thing?, Mark S. Simms

Cardozo Journal of Conflict Resolution

The evolution of equity in tort has brought about the use of alternative methods of dispute resolution in reaching settlements in mass tort cases: "Indeed, equity is a progressive force in the law. When formal adjudication cannot provide a plain, adequate, and complete remedy, the system of ADR should be flexible enough to deliver individualized justice." It appears, however, that the use of ADR is not always a prudent exercise of the court's power, nor is it always conducive to individual justice. This Note examines the Gray case, in which the court appointed a special master, thereby assigning one man …

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Disciplining The Disciplinary Systems In Professional Sports: An Attempt To Fix The Arbitrary And Overreaching Disciplinary Powers Of Sports Commissioners, David Sirotkin Jan 2009

Disciplining The Disciplinary Systems In Professional Sports: An Attempt To Fix The Arbitrary And Overreaching Disciplinary Powers Of Sports Commissioners, David Sirotkin

Cardozo Journal of Conflict Resolution

This Note contends that commissioners' abilities to unilaterally discipline players must be checked for the protection of players, and that more grievance appeals should go to neutral arbitrators. Part I outlines the commissioners' powers in the four major American sports leagues as conferred upon them by their respective CBAs. Part II discusses the history of commissioners' power in sports to illustrate how their powers have evolved and expanded over time. Part III distinguishes the NFL Commissioner's power and disciplinary authority from that of the NBA, MLB, and NHL Commissioners, as it displays a particularly egregious example of a commissioner's unilateral …

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The Funny Thing About Mediation: A Rationale For The Use Of Humor In Mediation, Whitney Meers Jan 2009

The Funny Thing About Mediation: A Rationale For The Use Of Humor In Mediation, Whitney Meers

Cardozo Journal of Conflict Resolution

This Note will show that, because of the lack of scholarly research addressing the use of humor in mediation, general perceptions about the legal profession, and current perceptions about the use of humor in mediation, some mediators shy away from using humor in their practice because they do not fully understand when to use it and how to embrace it. While there are significant risks to consider when assessing whether humor is appropriate for a particular mediation, this Note seeks to identify some of the benefits of using humor in practice. It offers a rationale for the use of humor …

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Eye Of The Tiger: China Will Rise Up To The Challenge Of Its Rivals, Benjamin S. Thompson Jan 2009

Eye Of The Tiger: China Will Rise Up To The Challenge Of Its Rivals, Benjamin S. Thompson

Cardozo Journal of Conflict Resolution

This note will discuss the details of the enforcement challenges within Mainland China, identify the economic forces of the world market on China's arbitration processes, and will examine these force's certain effects on its arbitral award enforcement challenges. The perspective introduced herein describes the challenges and options that Mainland China will encounter with its arbitral award enforcement issues, and how the international, commercial market will force these difficulties to be quickly repaired. The expectations of the Chinese government's reaction to the economic markets, organizations, and countries that it now more frequently encounters extends to the judicial and arbitral enforcement practices …

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Bargaining Power And Background Law, Nancy Kim Jan 2009

Bargaining Power And Background Law, Nancy Kim

Faculty Scholarship

Power in contract law typically refers to the bargaining strength of each contracting party in relation to the other. In assessing the relative bargaining power of each party, courts and commentators often consider factors specific to the parties, such as socio-economic status and education level. In this Essay, I suggest another factor that affects the power of the parties in negotiating or modifying their agreement, one that I refer to as the "background law." The background law is the substantive law that governs the subject matter of the contract. This Essay focuses specifically on the background law of copyrights and …

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I Want The Opposite Of What You Want: Reducing Fixed-Pie Perceptions In Online Negotiations, Laura Klaming, Jelle Van Veenen, Ronald Leenes Jan 2009

I Want The Opposite Of What You Want: Reducing Fixed-Pie Perceptions In Online Negotiations, Laura Klaming, Jelle Van Veenen, Ronald Leenes

Journal of Dispute Resolution

Negotiators typically believe their opponents' interests are diametrically opposed to their own. The existence of these fixed-pie perceptions has been identified as a major cause of ineffective conflict resolution and seem to be relatively resistant to change. In contrast to what negotiators typically believe, most conflict situations contain potential for solutions that benefit both parties instead of favoring one party at the expense of the other. Integrative agreements can be reached if opposing negotiators realize that they might have different priorities.

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Promise Of Confidentiality In Mediation: Practitioners' Perceptions, The, T. Noble Foster, Selden Prentice Jan 2009

Promise Of Confidentiality In Mediation: Practitioners' Perceptions, The, T. Noble Foster, Selden Prentice

Journal of Dispute Resolution

In response to these articles, we sought to determine the perceptions of mediation practitioners in our own region, the Seattle/King County area, regarding mediation confidentiality and privilege. This paper presents our finding and addresses the following: (1) the scope of confidentiality and privilege under Washington law; (2) recent Washington case law addressing evidence of mediation communications; (3) a review of Florida's recent legislation - significantly different from Washington law, and unique among state mediation statutes - which provides for sanctions in the event confidentiality is breached; and (4) the perceptions of mediators, attorneys, and judges from the greater Seattle area …

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I Lost My Home, Don't Take My Voice: Ensuring The Voting Rights Of The Homeless Through Negotiated Rulemaking, Sarah Devlin Jan 2009

I Lost My Home, Don't Take My Voice: Ensuring The Voting Rights Of The Homeless Through Negotiated Rulemaking, Sarah Devlin

Journal of Dispute Resolution

"The right to vote, as the citizen's link to his laws as government, is protective of all fundamental rights as privileges." This right is often unexercised or taken for granted; but for hundreds of thousands of homeless citizens, voting is a right which is beyond reach. The U.S. Department of Housing and Urban Development estimated that on any given night in 2005, more than 754,000 Americans were without a traditional residence--living in emergency shelters, transitional housing, or on the streets. While many of those people are only temporarily homeless, many others are being disenfranchised by an electoral system that requires …

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Immunity And Justice For All: Has The Second Circuit Overextended The Doctrine Of Absolute Immunity By Applying It To Arbitration Witnesses, W. Monroe Bonnheim Jan 2009

Immunity And Justice For All: Has The Second Circuit Overextended The Doctrine Of Absolute Immunity By Applying It To Arbitration Witnesses, W. Monroe Bonnheim

Journal of Dispute Resolution

In Rolon v. Henneman, the Second Circuit Court of Appeals considered whether absolute immunity should apply to witnesses in an arbitration proceeding. The common law doctrine of absolute immunity from civil liability for judges has a long pedigree dating back to English courts. When the United States Supreme Court reaffirmed the doctrine after Congress passed 42 U.S.C. § 1983, the Court cautioned against extending the doctrine beyond judges. Since then, however, the doctrine has been extended to prosecutors and witnesses at public trials, and more recently, to arbitrators and arbitral institutions. Whether absolute immunity should be further extended to witnesses …

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Making Friends Of Foes: Bringing Labor And Management Together Through Integrative Bargaining, Carly Duvall Jan 2009

Making Friends Of Foes: Bringing Labor And Management Together Through Integrative Bargaining, Carly Duvall

Journal of Dispute Resolution

Collective bargaining's unique history and structure make it an ideal setting for integrative bargaining ("LB").1 First, most collective bargaining agreements have a set expiration date, which causes the parties to constantly return to the bargaining table to negotiate new terms. Second, collective bargaining in the labor-management setting has a long history in the United States, and unions and management tend to form long-lasting relationships. Finally, collective bargaining agreements address complex interests and are designed to meet the needs of a variety of constituents. These factors combine to produce a relationship involving several individuals, going back multiple generations, who are sure …

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What's Fair Is Fair: Tribal Assertions Of Jurisdiction Over Arbitration Decisions, Matthew E. Terry Jan 2009

What's Fair Is Fair: Tribal Assertions Of Jurisdiction Over Arbitration Decisions, Matthew E. Terry

Journal of Dispute Resolution

While the modem trend is to provide tribes with a certain amount of latitude in some areas, the court in First Specialty Insurance Corp. v. Confederated Tribes of the Grand Ronde Community of Oregon was tasked with shoehorning the facts into the applicable precedent because the various doctrines defining the limits of tribal jurisdiction under the Federal Arbitration Act ("FAA") have not often been tested, as they were here. The district court's opinion followed the modem trend by upholding the Tribe's assertion of its court system's jurisdiction, yet the court did not establish a precedent that should trouble the notion …

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Expansion Of Arbitral Immunity: Is Absolute Immunity A Foregone Conclusion, The, Jenny Brown Jan 2009

Expansion Of Arbitral Immunity: Is Absolute Immunity A Foregone Conclusion, The, Jenny Brown

Journal of Dispute Resolution

With the increased use of arbitration in recent years, the concept of judicial immunity has expanded its scope to include arbitrators. As a result, states are currently enacting their own legislation regarding arbitrator immunity and are looking for guidance in how to do so. In response, the National Conference of Commissioners on State Laws has drafted two model acts, referred to as the Uniform Arbitration Act and the Revised Uniform Arbitration Act for states to utilize in formulating their own arbitration laws. Currently the Uniform Arbitration Act has been adopted in thirteen states and is being considered in four other …

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Arguments In Favor Of The Triumph Of Arbitration, Thomas E. Carbonneau Jan 2009

Arguments In Favor Of The Triumph Of Arbitration, Thomas E. Carbonneau

Faculty Scholarship

Arbitration is not just another trial procedure. It epitomizes a practical understanding of the purpose and value of adjudicatory procedures. It poses a substantial challenge to adversarial litigation by exposing its underlying irrationality and its destructive impact upon society. It guarantees the rule of law domestically and internationally through affordable access, expedited proceedings, expertise, and bridging the gap between national legal systems. It is a valuable institution that should not become a pawn in the tired and unimaginative political discourse that substitutes 'talking points' for genuine reflection and debate. The gravamen of the current attack on arbitration is not the …

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Winners And Losers In The Panel Stage Of The Wto Dispute Settlement System, Bernard Hoekman, Henrik Horn, Petros C. Mavroidis Jan 2009

Winners And Losers In The Panel Stage Of The Wto Dispute Settlement System, Bernard Hoekman, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

Most research on the role of developing countries in the WTO Dispute Settlement (DS) system has focused on their propensity to participate as complainants, respondents, and third parties. Much of this line of research has sought to examine claims that developing countries are underrepresented as complainants and/or overrepresented as respondents in the DS system. This chapter examines whether the outcomes with regard to legal claims differ between developing and developed countries. It employs a dataset describing various aspects of the DS system that have been compiled under a World Bank project to take a first cut at exploring what the …

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Mediation And The Myth Of Universality, Nadja Alexander Jan 2009

Mediation And The Myth Of Universality, Nadja Alexander

Research Collection Yong Pung How School Of Law

In his essay entitled ‘Mediation – Pfade zum Frieden’, Professor Montada has made an important contribution to the mediation literature. He questions the universality of the standard mediation model that appears to be sweeping the world with enormous zeal and in doing so puts forward theories and principles to substantiate his view. In this article, Nadja Alexander analyses what the author has to say about the scope and potential for mediation.

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Death Of The Role-Play, Nadja Alexander, Michelle Lebaron Jan 2009

Death Of The Role-Play, Nadja Alexander, Michelle Lebaron

Research Collection Yong Pung How School Of Law

Setting someone up to fail does indeed sound unfair. In fact it could be described as an ambush – outlaw facilitators lying in wait for unsuspecting students. Not only is this unsettling in a training environment, we can ask whether this lack of transparency runs counter to the behavior expected of negotiators and mediators. Far from being a figment of our fertile imaginations, this short vignette is drawn from a real life learning situation at which both authors were present. Participants were asked at the beginning of the postgraduate workshop about their learning preferences. While most replied enthusiastically about learning …

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