Dispute Resolution and Arbitration Commons^™

More Than Just Territorial: The 8th Circuit Establishment A Resourceful Precedent In Claiming Jurisdiction Over Denials To Compel Arbitration, Ashley Marshall

Journal of Dispute Resolution

This note argues that the Eighth Circuit's decision to claim jurisdiction in Industrial Wire Products, Inc. v. Costco Wholesale Corp. was practical and resourceful, as that court is better suited to decide matters of contract interpretation. The highly specialized Federal Circuit should devote its time and expertise to governing cases in particular areas of law, like patent litigation and administrative law. This note further argues that the Eighth Circuit preserved judicial resources and adhered to the parties' intentions in holding that the patent infringement claims were required to proceed through arbitration.

Arbitration Clauses In Contracts Of Adhesion Trap Sophisticated Parties Too, Andrea Doneff

Journal of Dispute Resolution

Part II of this Article will provide a survey of the FAA, the cases that have enforced it since its passage in 1925, and the distinctions made by the drafters and the courts. Part III addresses a number of the common themes and limitations raised by cases applying the FAA, including the ability to protect statutory rights, the right to contract and have courts enforce contractual obligations, the need to protect consumers subject to mandatory arbitration clauses, and the need for finality in arbitration. Part IV reviews recent legislative and Supreme Court decisions considering issues regarding sophisticated and unsophisticated parties …

Building Bridges To Resolve Conflict And Overcome The Prisoner's Dilemma: The Vital Role Of Professional Relationships In The Collaborative Law Process, David Hoffman, Dawn Ash

Journal of Dispute Resolution

Part 1 of this article describes the rapid growth of Collaborative Practice and the dense fabric of professional relationships that has been woven with the Collaborative Practice community. Part H explores the Prisoner's Dilemma, which explains why, in the absence of such relationships and mutual commitments to collaboration, there are hard-to-resist pressures to engage in competitive, win-lose, adversarial forms of negotiation. Part II also explores the role that lawyers can play in overcoming those pressures. Part III is based on interviews with teams of Collaborative lawyers and other professionals, who describe the personal qualities and skills that support strong relationships …

Summary Of Polk V. Nevada, 126 Nev. Adv. Op. No. 19, John L. Ward

Nevada Supreme Court Summaries

No abstract provided.

Punitive Damages In Securities Arbitration: An Empirical Study, Stephen Choi, Theodore Eisenberg

Cornell Law Faculty Publications

This article provides the first empirical analysis of punitive damages in securities arbitrations. Using a data set of over 6,800 securities arbitration awards, we find that claimants prevailed in 48.9 percent of arbitrations and that 9.1 percent of those claimant victories included a punitive damages award. The existence of a punitive damages award was associated with claims that suggested egregious misbehavior and with claims that provided higher compensatory awards. The pattern of punitive awards is more consistent with a traditional view of punitive damages that incorporates a retributive component than with a law and economics emphasis on efficient deterrence. We …

Summary Of In Re Sandoval, 126 Nev. Adv. Op. No. 15, Amy Kominsky

Nevada Supreme Court Summaries

This case is a certified question that originates from the United States Bankruptcy Court for the District of Nevada to determine whether a default judgment entered for failure to respond to a valid complaint has issue preclusive effects.

Arbitration Clauses In Ceo Employment Contracts: An Empirical And Theoretical Analysis, Erin O'Hara O'Connor, Kenneth Martin, Randall Thomas

Scholarly Publications

A bill currently pending in Congress would render unenforceable mandatory arbitration clauses in all employment contracts. Some perceive these provisions as employer efforts to deprive employees of important legal rights. Company CEOs are firm employees, and, unlike most other firm employees, they can actually negotiate their employment contracts, very often with attorney assistance. Moreover, many CEO employment contracts are publicly available, so they can be examined empirically. In this paper, we ask whether CEOs bargain to include binding arbitration provisions in their employment contracts. After exploring the theoretical arguments for and against including such provisions in these agreements, we use …

Arbitration Clauses In Ceo Employment Contracts: An Empirical And Theoretical Analysis, Randall Thomas, Kenneth J. Martin, Erin O'Connor

Vanderbilt Law School Faculty Publications

A bill currently pending in Congress would render unenforceable mandatory arbitration clauses in all employment contracts. Some perceive these provisions as employer efforts to deprive employees of important legal rights. Company CEOs are firm employees, and, unlike most other firm employees, they can actually negotiate their employment contracts, very often with attorney assistance. Moreover, many CEO employment contracts are publicly available, so they can be examined empirically. In this paper, we ask whether CEOs bargain to include binding arbitration provisions in their employment contracts. After exploring the theoretical arguments for and against including such provisions in these agreements, we use …

What Is "(Im)Partial Enough" In A World Of Embedded Neutrals?, Nancy A. Welsh

Faculty Scholarship

The Supreme Court’s decision in Caperton v. A. T. Massey Coal Co. highlighted the fragility of judicial independence and impartiality in the United States. A similar, less-noticed fragility of independence and impartiality exists among the arbitrators, mediators and administrative hearing officers who resolve an increasing number of disputes. Everywhere one looks, there is unremarked yet remarkable evidence of the rise of - embedded neutrals, particularly in uneven contexts between one-time and repeat players. This phenomenon becomes particularly worrisome when the embedded neutral’s role is due to their special relationship with the repeat player, and the one-time player is not as …

Barricades And Checkered Flags: An Empirical Examination Of The Perceptions Of Roadblocks And Facilitators Of Settlement Among Arbitration Practitioners In East Asia And The West, Shahlaw F. Ali

Washington International Law Journal

Contemporary research on roadblocks and facilitators of settlement has thus far been framed by standard economic modeling and distributive bargaining theories. Each of these frameworks provides helpful insights into those elements that assist or hinder the settlement process. However, each of these models has thus far not examined how particular roadblocks and facilitators of settlement operate in the context of international commercial arbitration proceedings from a comparative cross-cultural perspective. How diverse regions approach roadblocks and facilitators of settlement in the context of the integration of global markets is a new arena for research and practice. To date, most research on …

Expanding The Nafta Chapter 19 Dispute Settlement System: A Way To Declaw Trade Remedy Laws In A Free Trade Area Of The Americas?, Stephen J. Powell

UF Law Faculty Publications

Chapter 19 of the NAFTA transfers judicial review of U.S., Canadian, and Mexican government investigations under the controversial anti-dumping and countervailing duty (AD/CVD) laws from national courts to binational panels of private international law experts. The system stands as a unique surrender of judicial sovereignty to an international body, a hybrid of national courts and international dispute settlement with as yet no parallel in the world of international trade or other international law regimes. Binational panel decisions have been controversial because agencies chafe at their intimate examination of agency findings and supporting evidence. Panels also are viewed as substantially more …

Adr In Labor And Employment Law During The Past Quarter Century, Theodore J. St. Antoine

Articles

Two events can serve as bookends for alternative dispute resolution (ADR) in labor and employment law during the past quarter century. The first was the 1991 U.S. Supreme Court decision in Gilmer v. Interstate/Johnson Lane Corp. The Court approved so-called "mandatory arbitration" by holding that an individual stockbroker was bound by a contract with the New York Stock Exchange to arbitrate a claim of age discrimination against his employer, rather than take the case to court. The second event, or set of events, is the current consideration by Congress of the proposed Employee Free Choice Act (EFCA) and Arbitration Fairness …

Why Adr Programs Aren’T More Appealing: An Empirical Perspective, Michael Heise

Cornell Law Faculty Publications

Standard law and economic theory suggests that litigating parties seeking to maximize welfare will participate in alternative dispute resolution (ADR) programs if they generate a surplus. ADR programs claim to generate social surplus partly through promoting settlements and reducing case disposition time. Although most associate ADR programs with trial courts, a relatively recent trend involves appellate court use of ADR programs. The emergence of court-annexed ADR programs raises a question. Specifically, if ADR programs achieve their goals of promoting settlements and reducing disposition time, why do some courts find it necessary to impose ADR participation? Attention to ADR’s ability to …

Order At The End Of Life: Establishing A Clear And Fair Mechanism For The Resolution Of Futility Disputes, Ashley Bassel

Vanderbilt Law Review

On January 22, 2008, Ruben Betancourt was admitted to Trinitas Regional Medical Center in New Jersey for surgery for malignant thymoma, a cancer of the thymus gland (a small organ underneath the breastbone).' Following surgery, the patient developed brain damage due to lack of oxygen and, as a result, lapsed into unconsciousness. For the next five months, Mr. Betancourt was admitted to various medical facilities and readmitted finally to Trinitas in July 2008 for renal failure. For six more months, the unconscious patient remained in the hospital on an artificial ventilator, receiving renal dialysis and nutrition through tube feeding.

The …

I Could Have Been A Contender: Summary Jury Trial As A Means To Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation And Early, Consensual Dispute Resolution, Nancy A. Welsh

Faculty Scholarship

With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate - or even communicate with and listen to - such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive …

Summary Of Foster V. Dingwall, 126 Nev. Adv. Op. No. 5, Anthony R. Sassi

Nevada Supreme Court Summaries

The Court clarifies and explains the procedure announced in Huneycutt v. Huneycutt 2 for seeking a remand to the district court to alter, vacate, or otherwise modify or change a district court order or judgment after an appeal to the Supreme Court has been perfected. Additionally, the Court explains that the perfection of the appeal does not toll the six-month period for seeking NRCP 60(b)(2) relief.

Colorado River Water: Mexico's Perspective On The Ongoing Negotiations, Mario López Pérez

US-Mexico Negotiations on Improved Colorado River Management: An Update (February 19)

Presenter: Mario López, Engineering and Technical Standards Manager, National Water Commission of México

53 slides

Agenda: Us-Mexico Negotiations On Improved Colorado River Management: An Update, University Of Colorado Boulder. Natural Resources Law Center, Western Water Policy Program, Colorado Water Conservation Board

US-Mexico Negotiations on Improved Colorado River Management: An Update (February 19)

The United States and Mexico are currently negotiating an international accord on a variety of Colorado River water matters, including the prospects for new water projects, conservation efforts, and operational improvements. Participants are invited to hear an update on these efforts from individuals directly involved in the negotiations, including Mario López Pérez, Engineering and Technical Standards Manager in the National Water Commission of México, who is responsible for binational water issues with the USA, Guatemala and Belize.

Summary Of Dictor V. Creative Mgmt. Servs., Llc, 126 Nev. Adv. Op. No. 4, Tenesa S. Scaturro

Nevada Supreme Court Summaries

Appeal of district court order granting summary judgment.

The Restrictive Ethos In Civil Procedure, A. Benjamin Spencer

Faculty Publications

Those of us who study civil procedure are familiar with the notion that federal civil procedure under the 1938 Rules was generally characterized by a "liberal ethos," meaning that it was originally designed to promote open access to the courts and to facilitate a resolution of disputes on the merits. Most of us are also aware of the fact that the reality of procedure is not always access-promoting or fixated on merits- based resolutions as a priority. Indeed, I would say that a "restrictive ethos" prevails in procedure today, with many rules being developed, interpreted, and applied in a manner …

Summary Of Great Basin Water Network V. State Eng’R, 126 Nev. Adv. Op. No. 2, Jason Vanmeetren

Nevada Supreme Court Summaries

A 2003 amendment to section 533.3702 of the Nevada Revised Statutes, empowering the State Engineer to postpone taking action on water appropriation applications “[for] municipal use,” applies retroactively to applications filed within one year of the 2003 amendment and does not apply to applications filed more than one year prior the amendment.

The Evolving Schizophrenic Nature Of Labor Arbitration, Martin H. Malin

All Faculty Scholarship

No abstract provided.

Legal Bargaining Theory's New "Prospecting" Agenda: It May Be Social Science, But Is It News?, Robert J. Condlin

Faculty Scholarship

In the good old days legal bargaining scholarship was based mostly on negotiator war stories exuberantly told. The social-scientific study of the subject did not begin in earnest until the nineteen-seventies. Since then, however, the literature of storytelling has gone into a pronounced eclipse and social-scientific study is now the principal scholarly game in town. This article questions the wisdom of this shift, almost seismic in its proportions, and argues that it is too soon to jump on the social science bandwagon. Discussion focuses on the uses made of the Prospect Theory of Daniel Kahneman and Amos Tversky and the …

Negotiating Executive Compensation In Lieu Of Regulation, Urska Velikonja

Faculty Scholarship

No abstract provided.

Efficient, Fair, And Incomprehensible: How The State 'Sells' Its Judiciary, Keith J. Bybee, Heather Pincock

College of Law - Faculty Scholarship

Sociolegal scholars often approach dispute resolution from the perspective of the disputants, emphasizing how the resources on each side shape the course of conflict. We suggest a different, “supply-side” perspective. Focusing on the state’s efforts to establish centralized courts in place of local justice systems, we consider the strategies that a supplier of dispute resolving services uses to attract disputes for resolution. We argue that state actors often attempt to “sell” centralized courts to potential litigants by insisting that the state’s services are more efficient and fair than local courts operating outside direct state control. Moreover, we argue that state …

The Crossroads Of Investment Arbitration, Susan D. Franck

Scholarly Articles

None available.

All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies And The Rule Of Law, Keith J. Bybee

College of Law - Faculty Scholarship

This paper contains the introduction to the new book, All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law (Stanford University Press, 2010).

The book begins with the observation that Americans are divided in their beliefs about whether courts operate on the basis of unbiased legal principle or of political interest. This division in public opinion in turn breeds suspicion that judges do not actually mean what they say, that judicial professions of impartiality are just fig leaves used to hide the pursuit of partisan purposes.

Comparing law to the practice of common courtesy, the …

Hearings, Mark Spottswood

Faculty Working Papers

This article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared—but false—assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing their testimony in person than if the judges were to review …

Interlocutory Review By Agreement Of The Parties: A Preliminary Analysis, James Pfander, Dave Pekarek-Krohn

Faculty Working Papers

Although the nineteenth century's final judgment rule no longer represents an absolute barrier to interlocutory appellate review, scholars disagree about what should take its place. Some favor a regime of discretionary interlocutory review, with power conferred on appellate courts to select issues that warrant intervention. Others reject discretionary review as a waste of appellate resources and call upon the rule makers to identify specific categories of non-final orders that always warrant review. While the Supreme Court's collateral order doctrine bears some similarity to this process of categorization, the Court may have called a halt to the judicial recognition of new …

Collateral Review Of Remand Orders: Reasserting The Supervisory Role Of The Supreme Court, James Pfander

Faculty Working Papers

Although some might consider the appellate review of remand orders as something of a jurisdictional backwater, recent developments suggest that the rules need attention. The Supreme Court has decided no fewer than four cases in the past few years and has failed to develop a persuasive framework. Indeed, one member of the Court, Justice Breyer, has invited "experts" to solve the problem.

In this essay, I suggest that the solution lies in the Court's own hands. Rather than proposing legislative or rulemaking solutions, I call on the Court to re-invigorate its supervisory powers and conduct direct review of district court …