Dispute Resolution and Arbitration Commons^™

Differentiating Among International Investment Disputes, Julie A. Maupin

Faculty Scholarship

Can investor-state arbitration tribunals, which exercise jurisdiction over limited claims involving discrete parties, render awards that deliver individualized justice while also promoting systemic fairness, predictability and coherence? The answer, I argue, is a qualified yes – provided that the methods employed are tailored to the particular characteristics of each dispute. Using three well-known investment arbitrations as case studies, I illustrate that investor-state disputes vary widely in terms of their socio-legal, territorial, and political impacts. Significant variances along these three dimensions call for a differentiated approach to investor-state dispute resolution. I outline what such an approach might look like and analyze …

Analysis Of The Efficacy Of Criminal Court Mediation As A Tool Of Restorative Justice, Teresa Hoerres

Capstone Collection

This capstone research paper aims to capture the personal narratives of how participants of criminal court mediation in Brooklyn, New York actual experience the program. The program, which is facilitated by New York Peace Institute, is a cornerstone of the organization’s restorative justice program. Restorative justice has been gaining traction over the last few decades, and its application to criminal matters as an alternative dispute resolution (ADR) service, is unprecedented.

The research was conducted using a mixed methodology approach, relying on the researcher’s ethnographic observations of the criminal court mediation program from August 2013 through March 2014, as well as …

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 - 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, …

Patent Prosecution As Dispute Resolution: A Negotiation Between Applicant And Examiner, Jaron Brunner

Journal of Dispute Resolution

The phrase "negotiation is ubiquitous" has been used countless times by negotiation scholars, corporate executives, and cognitive psychologists.' At its most basic level, negotiation is simply a communication between parties when one party wants something from the other. In the legal setting, parties use negotiation to attempt to divide up limited resources, reach a settlement and attempt to execute a contract. Even procedures as mundane as filing for a patent in the United States can, and have been, described as a complex negotiation.4 However, while many practitioners describe responding to the United States Patent and Trademark Office (USPTO) as a …

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.

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 …

Cooking Up A Deal: Negotiation Recipes For Success, Jim Coben, Robert Dingwall, Dan Druckman, Noam Ebner, Howard Gadlin, Chris Honeyman, Sanda Kaufman, Michelle Lebaron, Roy Lewicki, David Matz, Carrie Menkel-Meadow, Michael Moffitt, Jen Reynolds, Andrea Kupfer Schneider, John Wade, Nancy Welsh

All Faculty Publications

If forced to be concise and pithy, what would a room full of negotiation scholars cook up? The compilation of recipes was in response to the request for each person’s own definition of negotiation effectiveness put in the form of a recipe. Not only is this interesting in terms of seeing the similarities and differences among this leading and diverse group of scholars, the exercise itself is one that can easily be replicated in negotiation or dispute resolution classes. It forces each participant to think about (a) ingredients; (b) amount of each; and (c) the order in which each skill …

Supplying Compliance: Why And When The United States Complies With Wto Rulings, Rachel Brewster, Adam Chilton

Faculty Scholarship

In studies of compliance with international law, the focus is usually on the “demand side” – that is, how to increase the pressure on the state to comply. Less attention has been paid, however, to the consequences of the “supply side” – who within the state is responsible for the compliance. This Article is the first study to systematically address the issue of how different actors within the United States government alter national policy in response to the violations of international law. The Article does so by examining cases initiated under the World Trade Organization (WTO) Dispute Settlement Understanding (DSU). …

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

McGeorge School of Law Scholarly Articles

No abstract provided.

Climate Geoengineering And Dispute Settlement Under Unclos And The Unfccc: Stormy Seas Ahead?, Meinhard Doelle

Articles, Book Chapters, & Popular Press

This paper considers the potential for the UNCLOS and UNFCCC regimes to be faced with disputes at the intersection between the management of climate change and ocean governance. Using the example of geo-engineering, the chapter considers how tensions between climate mitigation and management and conservation goals are likely to be addressed under the two regimes. The paper explores the capacity of the existing dispute resolutions mechanisms under the two regimes to deal with these tensions, conflicts and overlap.

Your Day In 'Wiki-Court': Adr, Fairness, And Justice In Wikipedia's Global Community, Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

Wikipedia has quickly become the largest volume of collected knowledge on the planet, but it is also one of the busiest centers for dispute resolution in the world. From small groups of individuals negotiating article changes on “talk pages”, to the involvement of hundreds of people in the formation of the community consensuses needed to implement new policies, to the use of binding arbitration to create final conflict resolutions, the Wikipedia community has developed a complex network of norms and rules that funnel all disagreements and intractable differences through a series of progressively more involved dispute resolution processes. I provide …

Book Review, Anna Spain

Publications

No abstract provided.

Overview Of Panel: Judges, Diplomats, And Peacebuilders: Evaluating International Dispute Resolution As A System, Anna Spain

Publications

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.

Finding Order In The Morass: The Three Real Justifications For Piercing The Corporate Veil, Jonathan Macey, Joshua Mitts

Faculty Scholarship

Few doctrines are more shrouded in mystery or litigated more often than piercing the corporate veil. We develop a new theoretical framework that posits that veil piercing is done to achieve three discrete public policy goals, each of which is consistent with economic efficiency: (1) achieving the purpose of an existing statute or regulation; (2) preventing shareholders from obtaining credit by misrepresentation; and (3) promoting the bankruptcy values of achieving the orderly, efficient resolution of a bankrupt's estate. We analyze the facts of veil-piercing cases to show how the outcomes are explained by our taxonomy. We demonstrate that a supposed …

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

Faculty Scholarship

This short essay responds to Chip Brower's thoughtful and meticulous critique of Tentative Draft No. 2 of the Restatement Third of the U.S. Law of International Commercial Arbitration. While we appreciate the concerns he raises, we disagree with the conclusions he draws both about the Restatement and the drafting process. We address here what we understand to be Professor Brower's major criticisms of the work.

Screening Out Innovation: The Merits Of Meritless Litigation, Alexander A. Reinert

Articles

Courts and legislatures often conflate merit-less and frivolous cases when balancing the desire to keep courthouse doors open to novel or unlikely claims against the concern that entertaining ultimately unsuccessful litigation will prove too costly for courts and defendants. Recently, significant procedural and substantive barriers to civil litigation have been informed by judicial and legislative assumptions about the costs of entertaining merit-less and frivolous litigation. The prevailing wisdom is that eliminating merit-less and frivolous claims as early in a case’s trajectory as possible will focus scarce resources on the truly meritorious cases, thereby ensuring that available remedies are properly distributed …

Crowd-Classing Individual Arbitrations In A Post-Class Action Era, Myriam E. Gilles, Anthony J. Sebok

Articles

Class actions are in decline, while arbitration is ascendant. This raises the question: will plaintiffs' lawyers skilled in bringing small value, large-scale litigation-the typical consumer, employment, and antitrust claims that have made up the bulk of class action litigation over the past forty years-hit upon a viable business model which would allow them to arbitrate one-on-one claims efficiently and profitably? The obstacles are tremendous: without some means of recreating the economies of scale and reaping the fees provided by the aggregative device of Rule 23, no rational lawyer would expend the resources to develop and arbitrate individual, small-value claims against …