Dispute Resolution and Arbitration Commons^™

If There's A Will, There's A Way: The California Supreme Court's Sidestep Of The U.S. Supreme Court, Ryan Cummins

Arbitration Law Review (2009 - Present)

No abstract provided.

Bezio V. Draeger: A Missed Opportunity For A Doctrinal Solution To The Jurisdictional Split As To The Arbitrability Of Legal Malpractice Claims, Brian Cressman

Arbitration Law Review (2009 - Present)

No abstract provided.

Arbitration And The Constitution, Gabrielle Gilbeau

Arbitration Law Review (2009 - Present)

No abstract provided.

Skills And Values: Alternative Dispute Resolution: Negotiation, Mediation, Collaborative Law, And Arbitration, Guy Bowe

Arbitration Law Review (2009 - Present)

No abstract provided.

A Reply To "Hollow Spaces", George A. Bermann, Jack J. Coe Jr., Christopher R. Drahozal, Catherine A. Rogers

Buffalo Law Review

No abstract provided.

Adr Cases, Jacob Glasser

Law Student Publications

Description of recent case law regarding alternative dispute resolution.

Show Me The Mediation!: Introducing Mediation Prior To Salary Arbitration In Major League Baseball, Sam B. Smith

Hofstra Law Review

No abstract provided.

In Defense Of Idea Due Process, Mark Weber

College of Law Faculty

Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker. This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and …

Table Of Contents - Issue 1

Journal of Dispute Resolution

Table of Contents - Issue 1

Opening Remarks, October 4, 2013 Symposium: Resolving Ip Disputes: Calling For An Alternative Paradigm, James Levin

Journal of Dispute Resolution

Today, 225 years after the Constitution was drafted, we can look back and see how the protection of individual property through our patent system has helped our country grow. In 2012 alone, there were more than 576,763 U.S. patents applications filed and 276,788 patents issued. These numbers don't include the tens of thousands of patents that were bought, sold, and licensed in the private market each year. Not surprisingly, an ever-increasing number of patents are challenged through litigation. In 2012, almost 5000 patent infringement cases were filed. Litigation expenses can easily cost each party in a dispute millions of dollars, …

Developing A Framework For Arbitrating Standards-Essential Patent Disputes, Jorge L. Contreras, David L. Newman

Journal of Dispute Resolution

This article lays the groundwork for the development of such procedures and identifies several key areas requiring further study and deliberation. Particular attention is paid to fundamental questions such as whether SEP arbitration should be mandated by SDOs, which conflicts should be arbitrated, whether arbitral decisions should be confidential, and what form arbitration proceedings should take. While, at this early stage, these difficult questions cannot be answered definitively, this article offers a framework for further discussion that the authors hope will be useful for policy makers, industry participants, and commentators considering these important issues.

Case Study In Patent Litigation Transparency, A, Bernard Chao, Derigan Silver

Journal of Dispute Resolution

By focusing on a single high profile patent case, Monsanto v. DuPont, this article explores the problem of transparency in patent litigation from two perspectives. First, this article provides metrics for understanding the nature and quantity of documents that were filed under seal in the Monsanto case. Second, this article scrutinizes particular aspects of the case to provide a more nuanced understanding of what the public cannot see. Although primarily descriptive, this article critically analyzes the sealing of so many documents by questioning the level of judicial oversight applied in decisions to seal court filings. It then goes on to …

Public Injunctions As A Way Around Concepcion: California's Continued Resistance To The Federal Arbitration Act, Elizabeth Kiesewetter

Journal of Dispute Resolution

This note outlines the general applicability of the FAA and preemption. Next, it examines the Supreme Court's precedent concerning preemption, as it relates to class actions and public policy. This note argues that California's public injunction exception does prohibit outright the arbitration of a particular type of claim and is, thus, preempted by the FAA. The Supreme Court will likely see this rule as being at odds with the FAA and as another repudiation from the California courts of their long-standing FAA jurisprudence. Finally, this note argues that, despite the likely preemption of California's rule, there are strong policy arguments …

Pressure To Plead: How Case-Management Mediation Will Alter Criminal Plea-Bargaining, Taylor C. Leonard

Journal of Dispute Resolution

This note first discusses the facts and proceedings in Milligan. Next, it explores the history and importance of plea-bargaining in the United States and how mediation has slowly become a part of criminal proceedings. Next, this note examines the Milligan court's reasoning for upholding the mediation plea bargain at issue in that case, in light of the legal landscape concerning ADR and the criminal justice system. Finally, this note argues in favor of using case-management mediation in criminal plea negotiations, and explores the proper methods and procedures to make these mediations successful.

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 15, Iss. 2

Cardozo Journal of Conflict Resolution

No abstract provided.

Bioethics Mediation At The End Of Life: Opportunities And Limitations, Ellen Waldman

Cardozo Journal of Conflict Resolution

Medical advances in a wide variety of areas are helping more and more elderly people live longer. When hearts, lungs and kidneys failed in the past, death came swiftly and without discussion. Today, failing organs mobilize a sophisticated arsenal of medical technology designed to keep death at bay.

Managing Conflict In Clinical Health Care With Diminished Reliance On Third Party Intervention: Forging An Ethical And Legal Mandate For Effective Physician-Patient Communication, Edward J. Bergman

Cardozo Journal of Conflict Resolution

The world of clinical medicine is rife with conflict among caregivers, patients and their surrogates. This should not surprise given medicine's scientific, psychological, and language complexities, high stakes, fragmentation of care, multiplicity of players, time constraints, institutional politics, cultural differences, competing philosophies and economic dimensions. "Hospital life with its byzantine array of moving parts layered atop the unpredictable rhythms of illness is a permanent state of flux."

"Cut The Dog In Half": Resolving Animal Law Disputes Through The Use Of Alternative Dispute Resolution, Michael Ploudre Kaiser

Cardozo Journal of Conflict Resolution

In this article, I discuss ADR within the context of three types of animal law issues. In Part I, I discuss animal custody disputes, which I have found to be very well-suited to resolution by means of mediation. In Part II, I discuss the debate surrounding laboratory testing on animals and the reasons why several current approaches to this issue are insufficient and wasteful of resources. I outline how mediation has the potential to bridge differences and find at least short-term workable resolutions to a highly charged issue, which in turn may lead to longer-term resolutions. Lastly, in Part III, …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 15, Iss. 3

Cardozo Journal of Conflict Resolution

No abstract provided.

The Sec Adds A New Weapon: How Does The New Admission Requirement Change The Landscape?, Paul Radvany

Cardozo Journal of Conflict Resolution

This Article will examine the SEC's revised settlement policy in the aftermath of Judge Rakoff's concerns about the SEC's longstanding "no admit, no deny" policy. In order to determine the import of the SEC's new settlement policy on the conduct of companies, as well as ongoing investigations and cases, this Article will also include analysis from lawyers who have advised their clients on the SEC's policy change.

Part II provides an overview of the SEC and its Enforcement Division, and describes the SEC's prosecutorial discretion. Part III examines Judge Rakoff's decisions in SEC v. Bank of Am. Corp.1 4 and …

Informed Consent In Mediation: Promoting Pro Se Parties' Informed Settlement Choice While Honoring The Mediator's Ethical Duties, Michael T. Colatrella Jr.

Cardozo Journal of Conflict Resolution

In explaining the proper role of informed consent in mediation, this Article will proceed as follows: Part II will examine mediation's core ethical values of self-determination, impartiality and promoting a quality process. Part III will explore the meaning and origins of the informed consent doctrine; and, in Part IV, analyze the application of informed consent policies and principles to mediation in the light of mediation's core ethical values. Part V will explore ways that mediators can promote informed outcome consent within the existing ethical framework and recommend legislative reform that will help clarify the mediator's proper role of promoting fair …

The Pepperdine Model: Learn First-Then Practice, Robert A. Uhl, Judith Hale Norris

Cardozo Journal of Conflict Resolution

On January 8, 2010, FINRA's Investor Education Foundation awarded Pepperdine University School of Law's Straus Institute for Dispute Resolution a grant of $250,000 to establish a comprehensive clinical education program in investor advocacy.

The Stop Online Piracy Act: The Latest Manifestation Of A Conflict Ripe For Alternative Dispute Resolution, Steven Tremblay

Cardozo Journal of Conflict Resolution

This Note examines how arbitration and mediation can be injected into the online copyright debate to better serve the interests of all parties. First, this Note addresses past litigation models to compare the benefits and costs of using the courts to resolve piracy issues. The history of litigation against mass peer-to-peer file sharers and individual downloaders is an important aspect to this story. Next, this Note describes the current state of copyright laws and how SOPA and PIPA would alter copyright protection against foreign piracy. Copyright holders, predominately represented by the Recording Industry Association of America, and content hosts, such …

International Commercial Arbitration, Anticipatory Repudiation, And The Lex Mercatoria, Kyle Winnick

Cardozo Journal of Conflict Resolution

The scope of this Note is thus two-fold: (1) to delineate the doctrine of anticipatory breach as it is currently under the lex mercatoria; and, (2) to evaluate and argue for its consistency in application by international arbitral tribunals. Section I-A discusses when arbitrators will choose to apply the lex mercatoria as the substantive law of the dispute. Section I-B explains the doctrine of anticipatory repudiation and discusses its inherent ambiguity. Section IC assesses the role of the CISG and the UNIDROIT Principles as a manifestation of the lex mercatoria. Section II-A explores the severability issue and an …

Status And Contract In An Emerging Democracy: The Evolution Of Dispute Resolution In Ghana, Paul F. Kirgis

Cardozo Journal of Conflict Resolution

Ghana is one of the developing world's success stories. The first sub-Saharan colony to gain independence, it is a stable democracy experiencing sustained economic growth. Yet as Ghana reaches for the material gains of participation in modern commercial life, its dual legal systems-the system of customary adjudication by traditional authorities and the formal court systemhave come under increasing pressure. New legal developments have truncated the authority of traditional decision-makers, while an overburdened court system lacks the resources to fill the resulting adjudicative gaps. To solve the problem, Ghana is now experimenting with a system of quasi-public dispute resolution, including contractual …

We Are Not Who We Pretend To Be: Odr Alternatives To Online Impersonation Statutes, Kori Clanton

Cardozo Journal of Conflict Resolution

This Note focuses on how online dispute resolution ("ODR") processes, as opposed to litigation, offer a more efficient and effective legal solution to resolving online impersonation disputes. The purpose of this Note is to analyze the measures state legislatures and social media websites have implemented to combat online impersonation cases, and to propose a practical ODR solution that will eliminate the burdens of litigation and provide a cost-efficient and time-effective remedy. Section I provides an introduction to the current relevance and rising incidents of online impersonation via social media websites such as Facebook and Twitter. Section II explores the historical …

“Sticky” Arbitration Clauses? The Use Of Arbitration Clauses After Concepcion And Amex, Peter B. Rutledge, Christopher R. Drahozal

Scholarly Works

We present the results of the first empirical study of the extent to which businesses have switched to arbitration after AT&T Mobility LLC v. Concepcion. The Supreme Court’s decision in Concepcion led commentators to predict that every business soon would use an arbitration clause, coupled with a class arbitration waiver, in their standard form contracts to avoid the risk of class actions. We examine two samples of franchise agreements: one sample in which we track changes in arbitration clauses since 1999, and a broader sample focusing on changes since 2011, immediately before Concepcion was decided. Our central finding is consistent …

The Many Lanes Out Of Court: Against Privatization Of Employment Discrimination Disputes, Theresa M. Beiner

Maryland Law Review

No abstract provided.

Success And Failure In Adr: A Dialogue Between Partners, Lela P. Love, Joseph B. Stulberg

Articles

Love and Stulberg critically discuss policy, scholarly, and practice developments in four areas of program development in the area historically referenced as alternative dispute resolution (ADR): the range of process options; the impact of court procedures on ADR program development and practice; the nature of ADR scholarship and training; and the general public's receptiveness to or rejection of the normative principles that structure ADR collaborative processes. Their concluding remarks suggest that the promise of ADR, particularly of the mediation process, remains inspiring to many, even if its effective implementation remains uneven.

When The Price Of Settlement Is Ethically Prohibitive: Non-Disparagement Clauses That Apply To Lawyers, Elayne E. Greenberg

Faculty Publications

(Excerpt)

At last! You have lived with this case for many years, and you are now on the verge of finalizing the terms of a settlement agreement. All the contentious issues have finally been resolved, so you thought, when the defendant leans over the table and says, “Just one more thing. We want you and your client to sign a non-disparagement clause as part of the settlement.” Yes, non-disparagement clauses have been frequently used as a controversial reputational shield in high-conflict divorces, sensitive employee terminations and contentious consumer actions. However, barely discussed is whether lawyers are ethically able to suggest …