Dispute Resolution and Arbitration Commons^™

Stutz, Robert Arbitration Chart, Edmund P. Edmonds

Arbitrator Charts

No abstract provided.

Roberts, Thomas Arbitration Chart, Edmund P. Edmonds

Arbitrator Charts

No abstract provided.

Two Models Of Interest Arbitration, Martin H. Malin

All Faculty Scholarship

Most states prohibit public employees from striking and the federal government makes a strike by a federal employee a felony. Many public employee labor relations acts give organized employees a right to arbitrate when their union and employer are unable to reach agreement on the terms of a contract. Much discussion of such interest arbitration schemes has focused on whether the process inhibits bargaining (the chilling effect) or is habit forming (the narcotic effect). These discussions contrast the use of traditional interest arbitration, where the arbitrator may award any outcome that falls between the parties’ final offers, with final offer …

Trust And Intention To Comply With A Water Allocation Decision: The Moderating Roles Of Knowledge And Consistency, Joseph A. Hamm, Lisa M. Pytlikzillig, Mitch Herian, Alan Tomkins, Hannah Dietrich, Sarah Michaels

Lisa PytlikZillig Publications

Regulating water resources is a critically important yet increasingly complex component of the interaction between ecology and society. Many argue that effective water regulation relies heavily upon the compliance of water users. The relevant literature suggests that, rather than relying on external motivators for individual compliance, e.g., punishments and rewards, it is preferable to focus on internal motivators, including trust in others. Although prior scholarship has resulted in contemporary institutional efforts to increase public trust, these efforts are hindered by a lack of evidence regarding the specific situations in which trust, in its various forms, most effectively increases compliance. We …

Mickey Goes To France: A Case Study Of The Euro Disneyland Negotiations, Lauren A. Newell

Law Faculty Scholarship

Euro Disneyland (since renamed Disneyland Resort Paris) in Marne-la-Vallée, France was declared a success even before it was built, and yet it narrowly escaped a humiliating bankruptcy after opening. This article applies intercultural negotiation theory to examine how The Walt Disney Company proved fallible in its negotiations with the French government and citizens in the course of constructing and operating Euro Disneyland.

Through a case study of the negotiations, this article reveals why the reality proved so different from the expectations. It concludes with advice for how The Walt Disney Company — and, by implication, any multinational firm — should …

The Curious Case Of Transformative Dispute Resolution: An Unfortunate Marriage Of Intransigence, Exclusivity, And Hype, Robert J. Condlin

Faculty Scholarship

Why do proponents of Transformative Dispute Resolution (TDR) defend the Theory in such intransigent, exclusivist, and grandiose terms? TDR is a mature theory, and a relatively sophisticated one, and qualities of this sort usually go hand in hand with a balanced, refined, and well-modulated sense of self. But TDR proponents will have none of that. They make ambitious (some would say outlandish) assertions about the Theory’s capacity to develop moral and political character, reform deliberative government, and resolve ethno-political conflict, while simultaneously rejecting overtures from sympathetic outsiders to rein in the overstated aspects of these claims and craft a more …

Stopped At The Starting Gate: The Overuse Of Summary Judgment In Equal Pay Cases, Deborah Thompson Eisenberg

Faculty Scholarship

Prepared for a symposium about the overuse of summary judgment in employment discrimination cases, this Article provides a grassroots empirical analysis of what is happening in equal pay cases on the front lines of the district courts. Analyzing a database of 500 federal district court decisions—both published and unpublished—that considered whether to grant summary judgment on an equal pay claim from 2000 to 2011, the review shows that dismissing equal pay claims at the summary judgment stage has become the modus operandi for most federal courts. Courts granted 68% of summary judgment motions in equal pay cases—meaning that only about …

Alternative Dispute Resolution And Public Confidence In The Judiciary: Chief Judge Bell's "Culture Of Conflict Resolution", Deborah Thompson Eisenberg, Rachel Wohl, Toby Treem Guerin

Faculty Scholarship

Chief Judge Robert M. Bell has been a visionary leader in the development of alternative dispute resolution (“ADR”). His innovations have made Maryland a model state for conflict resolution programs in the courts and, uniquely, beyond the courthouse doors in a broad range of arenas. This article provides an overview of the “culture of conflict resolution” he ignited in the judiciary and in communities.

Apologies In The Marketplace, Kish Vinayagamoorthy

Scholarly Articles

In order to better appreciate the insufficiency of money in repairing relationships, Part I describes the benefits that an apology brings to the injured party, transgressor, and the broader community in which the parties belong. Part II explains the increasing significance of relationships to certain categories of commercial transactions and provides examples of the types of relational damage that a contractual breach can cause to these commercial relationships. Part III explains how the benefits previously described in Part I are applicable to repairing the types of commercial relational harm described in Part II. Given that relationships matter especially in transnational …

A Minor Problem With Arbitration: A Proposal For Arbitration Agreements Contained In Employment Contracts Of Minors, Richard A. Bales, Matthew Miller-Novak

McGeorge Law Review

No abstract provided.

A Theory Of Sharing Decision-Making In Mediation, Omer Shapira

McGeorge Law Review

No abstract provided.

Speech, Brian S. Harvey

Journal of Business & Technology Law

No abstract provided.

Criminal Mediation Has Taken Root In Idaho's Courts, Maureen Laflin

Articles

No abstract provided.

Without Precedent: Legal Analysis In The Age Of Non-Judicial Dispute Resolution, Mark Edwin Burge

Cardozo Journal of Conflict Resolution

For more than a century, the American system of legal education has predominantly emphasized the role of cases and judgemade law, but with the understanding that the craft of the lawmaking judge is constrained by the doctrine of stare decisis. This case-oriented approach to teaching law extends to statutes: students learn of the role of courts in interpreting and explaining statutes, making judicial construction of statutes part-and-parcel of statutory law. Thus, pervading the formative first year of law school is the assumption that the role of lawyers is principally to analyze what courts have done in the past in …

Ensuring Remedies To Cure Cramming, Amy J. Schmitz

Faculty Publications

The unauthorized addition of third party charges to telecommunications bills ("cramming") is a growing problem that has caught the attention of federal regulators and state attorney generals. This Article therefore discusses the problems associated with cramming, and highlights consumers’ uphill battles in seeking remedies with respect to cramming claims. Indeed, it is imperative for policymakers, researchers, consumer advocates, and industry groups to collaborate in developing means for resolving these claims. Accordingly, this Article offers a proposal for resolving cramming disputes in order to advance this collaboration, and inspire development of a functioning online dispute resolution ("ODR") process to handle these …

Beyond The Self-Execution Analysis: Rationalizing Constitutional, Treaty And Statutory Interpretation In International Commercial Arbitration, S. I. Strong

Faculty Publications

International commercial arbitration has long been considered one of the paradigmatic forms of private international law and has achieved a degree of legitimacy that is virtually unparalleled in the international realm. However, significant questions have recently begun to arise about the device’s public international attributes, stemming largely from a circuit split regarding the nature of the New York Convention, the leading treaty in the field, and Chapter 2 of the Federal Arbitration Act, which helps give effect to the Convention in the United States. Efforts have been made to place the debate about the New York Convention within the context …

Dispute Resolution Mechanisms For Intractable Medical Futility Disputes, Thaddeus Mason Pope

Faculty Scholarship

Medical futility disputes occur frequently in healthcare facilities across the United States. In this Article, I provide an overview of dispute resolution mechanisms through which healthcare providers can resolve these disputes. In Section I, identify three distinctive features of medical futility disputes. First, they usually concern life-sustaining medical treatment for patients in a hospital’s intensive care unit. Second, these patients typically lack decision making capacity. So, a surrogate must make treatment decisions on the patient’s behalf. Third, this surrogate and the patient’s physician disagree over the treatment plan. The surrogate wants to continue life-sustaining treatment. But the physician thinks that …

Cornerstones, Curb Cuts, And Legal Education Reform , Judith Welch Wegner

Journal of Dispute Resolution

This essay seeks to contribute to this dialogue by offering both theoretical and practical observations about legal education reform. This approach reflects the judgment that current efforts to improve legal education will only get so far unless underlying impediments to change that are often invisible become better understood. The essay provides legal educators with theoretical insights from the design, organizational behavior, education, and psychology literature in order to help that process along. Theoretical insights can be hard to apply in the abstract, however. The essay therefore also offers practical recommendations about both small and large actions that might be taken …

Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington

University of Michigan Journal of Law Reform

Two years ago I ranted against the Supreme Court's subversion of the Rules Enabling Act and its opposition to the benign aims of the twentieth-century progressive law reformers expressed summarily in Rule 1 of our Federal Rules of Civil Procedure. I observed then that the majority of the Justices of the Supreme Court appeared to have joined the Chamber of Commerce, aligning themselves also with Vice President Dan Quayle's 1989 Council on Competitiveness that denounced effective civil procedure as an enemy of economic development. I was then commenting adversely on what the Court had done to transform Rule 8. I …

Mass Procedures As A Form Of "Regulatory Arbitration" - Abaclat V. Argentine Republic And The International Investment Regime, S. I. Strong

Faculty Publications

This article takes a unique and intriguing look at the issues presented by Abaclat, considering the legitimacy of mass procedures from a regulatory perspective and using new governance theory to determine whether a new form of regulatory arbitration is currently being developed. In so doing, the discussion describes the basic parameters of regulatory litigation and analyzes the special problems that arise when regulatory litigation is used in the transnational context, then transfers those concepts into the arbitral realm. This sort of analysis, which is entirely novel as a matter of either public or private law, will shape future inquiries regarding …

Lost Options For Mutual Gain? The Layperson, The Lawyer, And Dispute Resolution In Early America, Carli N. Conklin

Faculty Publications

In 1786, legal reform activist Benjamin Austin undertook a campaign to promote the use of arbitration over litigation as the primary method of dispute resolution in Massachusetts. Although supported by a groundswell of anti-lawyer sentiment, Austin ultimately failed in securing the triumph of arbitration. Exploring Austin's pamphlet campaign in its historical context not only provides us with a snapshot of the arguments for and against dispute resolution in early America, but also serves as a corrective to the prevailing accounts of arbitration in American legal history. This article explores the context and content of Austin's pamphlet campaign and its implications …

The Role Of Mediation And Insurance In Bet The Company Litigation, Jed Melnick

Cardozo Journal of Conflict Resolution

When most of us graduate from law school, we are not able to read or understand our own car insurance policy, and yet the resolution of most commercial litigation would not happen without the involvement of insurance. The reality is that, in the context of class actions and "bet the company" litigation, insurance is usually the sole source of funds used to resolve the dispute. What follows is the transcript from a panel discussion that took place on February 9, 2012 at Cardozo Law School entitled, "The Role of Mediation and Insurance in Bet the Company Litigation." The idea behind …

The Lawyer With The Adr Tattoo, Jennifer W. Reynolds

Cardozo Journal of Conflict Resolution

This Article considers whether ADR presents a branding problem for legal professionals and, if so, how those professionals can reclaim the brand in productive, career-affirming ways. Whether one should self-identify as proponent, practitioner, or scholar of alternative practices implicates broad tensions not only around assimilating with integrity into any longstanding change-resistant profession, but also around the shortcomings of the adversarial system and the legitimacy of ADR.

The Psychology Of Mediation, David A. Hoffman, Richard N. Wolman

Cardozo Journal of Conflict Resolution

The purpose of this article is to provide an overview and summary of a broad range of psychological phenomena and examine their application to mediation. Our goal is to provide mediators-as well as the lawyers and disputants who use mediation-with a guide to navigating the powerful psychological and emotional currents that flow through the mediation process.

Constitutional Conundrums In Arbitration, S. I. Strong

Cardozo Journal of Conflict Resolution

In the immortal words of Grease, some things "go together, like rama-lama-lama, ka-dinga-da-dinga-dong." Though everyone has their own list of favorite pairings, some sure-fire winners are hot dogs and baseball, Mom and apple pie, Justice Scalia and original intent.

Other combinations are not so easy to anticipate, at least until some far-reaching visionary has taken that all-important first step, leading the rest of the world to say "yes, of course, we see it now." Again, individual preferences vary, but some possible unions include surfing and kite flying (now an Olympic sport), bacon and chocolate (now available at an internet …

Get On The Plane: Why Understanding The Israeli-Palestinian Conflict Is Best Done By Traveling There, Andrea Kupfer Schneider, Katie Lonze

Cardozo Journal of Conflict Resolution

International travel seems necessary for understanding international conflict and yet, bringing entire classes of students to the locus of the conflict can be daunting. This essay uses one such example of a class trip to demonstrate the potential learning that occurs with international travel and why, particularly when studying international conflict, onsite learning is crucial.

The genesis of this trip comes from the favorite learning experiences in college: two different international trips taken by author Andrea Schneider ("Andrea"). The first was during her junior year in a seminar on Greek-Turkish relations. The class traveled to both Greece and Turkey, meeting …

Adr's Place In Foreclosure: Remedying The Flaws Of A Securitized Housing Market, Lydia Nussbaum

Scholarly Works

Millions of Americans lost their homes during the foreclosure crisis, an unprecedented disaster still plaguing local and national economies. A primary factor contributing to the crisis has been the failure of conventional foreclosure procedures to account for the new realities of securitization and the secondary mortgage market, which transformed the traditional borrower-lender relationship. To compensate for the shortcomings of conventional foreclosure procedures and stem the tide of residential foreclosure, state and local governments turned to ADR processes for a solution. Some foreclosure ADR programs, however, have greater potential to avoid foreclosures than others. This Article comprehensively examines the key components …

What's Left To Remedy Wage Theft? How Arbitration Mandates That Bar Class Actions Impact Low-Wage Workers, Nantiya Ruan

Scholarly Works

For low-wage workers who suffer “wage theft” – employers illegally withholding portions of their wages – the dollars missing from their paychecks violate existing law and significantly impact the well-being of individuals, families, and communities. Despite this dire societal problem, the Supreme Court continues “closing the courtroom doors” in two ways: allowing employers to force workers out of court and into private arbitration; and prohibiting aggregate claims. Such trends, in combination, silence wage theft, leaving many claims unheard while unscrupulous employers gain direct advantage.

This Article explains how various procedural rulings have combined to prevent meaningful redress for wage theft. …

Live Free Or Regulate: Considering A, B And Their Dispute Resolution Clause Regarding Blackacre, Jean R. Sternlight

Scholarly Works

No abstract provided.

The Impact Of Local Patent Rules On Rate And Timing Of Case Resolution Relative To Claim Construction: An Empirical Study Of The Past Decade, Pauline M. Pelletier

Journal of Business & Technology Law

No abstract provided.