Dispute Resolution and Arbitration Commons^™

Negotiation Theories Engage Hybrid Warfare, Sharon Press, Nancy A. Welsh, Andrea Kupfer Schneider

Faculty Scholarship

The concept of hybrid warfare has arisen recently to describe the efforts, short of outright war, used by nations to disrupt and destabilize each other. This Article reviews available negotiation theories, concepts and skills to determine whether they can help governmental actors and business organizations targeted by hybrid warfare respond effectively. In other words, can negotiation theories, concepts and skills be used to engage effectively in “hybrid conflict management”? The Article urges that international diplomacy and multiparty negotiation theories and skills, as well as the more recent scholarship that has developed regarding hostage negotiation and “wicked problems,” are likely to …

Arbitration Under Union-Negotiated Collective-Bargaining Agreements: The Need For Perspicuity When Employees Waive The Right To Pursue Discrimination Claims In Federal Court, Travis Thickstun

Loyola University Chicago Law Journal

How clear and unmistakable should arbitration clauses be when employees waive their right to pursue discrimination claims in federal court under union-negotiated collective-bargaining agreements? The United States courts of appeals have been split on this question since the Supreme Court handed down its decisions in Wright v. Universal Maritime Service Corp. and 14 Penn Plaza LLC v. Pyett.¹ In Wright, the Court held that waiver in union-negotiated collective-bargaining agreements must be “clear and unmistakable.”² Eleven years later, in Pyett, the Court affirmed its clear-and-unmistakable standard for waiver of a union member’s right to pursue …

Escaping Arbitration And Class Action Waivers For Harassment Because Of Pregnancy, Sexual Orientation Or Gender Identity, Sandra F. Sperino

Faculty Publications

In 2022, Congress amended the Federal Arbitration Act (FAA) through the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. This amendment is being abbreviated to a rather clumsy acronym: EFASASHA. EFASASHA allows a person alleging sexual harassment or sexual assault to invalidate certain arbitration agreements and joint-action waivers. Congress passed the Act in response to testimony in which workers alleged that serial sexual harassment and assault continued because workers' claims were forced into private arbitration and could not be publicly adjudicated.

This Essay argues that the language that Congress used in EFASASHA is much broader than its title …

Success Stories In Community Courts: Listening To Participants' Voices, Hadar Dancig-Rosenberg, Tali Gal

Cardozo Journal of Conflict Resolution

No abstract provided.

Between Cooperation And Conflict In Second Look Sentence Review, Kay L. Levine, Ronald F. Wright

Cardozo Journal of Conflict Resolution

No abstract provided.

Community Accountability, M. Eve Hanan, Lydia Nussbaum

Scholarly Works

This Essay takes a close look at how the idea of community accountability is used in current transformative and restorative justice efforts, situating the concept within the history of delegalization, or a collection of different efforts to reclaim conflict resolution and public safety from the state. In fact, these efforts to reclaim the authority and means of redressing harm from legal systems may track earlier efforts to reclaim dispute resolution from the state. In Part I, we situate both transformative and restorative justice movements in the history of delegalization while noting essential differences between the objectives of these two reform …

Investment Bankers And Inclusive Corporate Leadership, Afra Afsharipour

Seattle University Law Review

Few major deals happen without the engagement and advice of investment bankers. Whether a company is undertaking an initial public offering or engaging in a large merger or acquisition deal, investment bankers play a central role in advising corporate executives. Successful investment bankers are devoted to cultivating relationships with executives. And these relationships place bankers in a position to earn tens of millions in fees for their advisory and service roles in connection with corporate dealmaking. Investment bankers’ constant endeavors to nurture relationships with executives, while also maximizing their own ability to enhance fees, commonly leads to allegations of double-dealing, …

Selective Patronage, Omari Scott Simmons

Seattle University Law Review

Contemporary academic corporate governance narratives have a blind spot. They focus on institutions, rules, regulations, processes, procedures, intermediaries, and market forces. Yet, missing in this narrative, is the impact of corporate leadership. Ignoring the “black box” of corporate leadership, particularly individual actors, renders an incomplete descriptive assessment as well as potential miscalculations. The examination of key historical figures and their corporate activism provides an important lens through which to identify potential challenges and opportunities related to the contemporary ESG movement.

Generally, this essay examines corporate leadership’s potential to address socio-political issues through the prism of Civil Rights Movement activism. Specifically, …

Reframing The Dei Case, Veronica Root Martinez

Seattle University Law Review

Corporate firms have long expressed their support for the idea that their organizations should become more demographically diverse while creating a culture that is inclusive of all members of the firm. These firms have traditionally, however, not been successful at improving demographic diversity and true inclusion within the upper echelons of their organizations. The status quo seemed unlikely to move, but expectations for corporate firms were upended after the #MeToo Movement of 2017 and 2018, which was followed by corporate support of the #BlackLivesMatter Movement in 2020. These two social movements, while distinct in many ways, forced firms to rethink …

Women In Shareholder Activism, Sarah C. Haan

Seattle University Law Review

Even a cursory review of the history of American environmental, social, and corporate governance (ESG) shareholder activism reveals the presence of women leaders. This Article sketches some of this history and interrogates the role of women in the shareholder activism movement. That movement typically has involved claims by minority shareholders to corporate power; activists are nearly always on the margins of power, though minority shareholders may, collectively, represent a majority interest. This Article ascribes women’s leadership in shareholder activism to their longstanding position as outsiders to corporate organization. Women’s participation in shaping corporate policy—even from the margins—has provided women with …

#Metoo And The Corporation In Popular Culture, Brenda Cossman

Seattle University Law Review

#MeToo’s initial virtual explosion in the fall of 2017 was very much about Hollywood, with famous actresses speaking out against famous producers, media moguls and celebrities, exposing the ubiquity of sexual harassment and sexual violence in and around the entertainment industry. Since then, #MeToo has made its way into Hollywood representations without much irony. Films and television shows have explicitly taken up the #MeToo themes, exploring issues of sexual harassment and violence and its afterlives. Many television shows, from the relaunched version of Murphy Brown to Brooklyn Nine-Nine to The Good Fight have incorporated #MeToo themes into episodes exploring the …

Woke Capital Revisited, Jennifer S. Fan

Seattle University Law Review

Inclusive corporate leadership is now at the forefront of discussions related to corporate governance. Two corporate theories help to explain the rise in prominence of diversity, equity, and inclusion (“DEI”) efforts in corporate leadership. First, an expanded definition of corporate purpose which elevated the idea of the importance of stakeholders, contributed to the momentum from business and legal quarters for broader corporate inclusion. Second, the increasing publicness of corporations—the social expectation of how large, typically public corporations should act given their position of power—also led to corporations becoming more active in the DEI space. It is against this backdrop that …

Army Commander’S Role—The Judge, Jury, & Prosecutor For The Article 15, Anthony Godwin

Seattle University Law Review

Service members in the armed forces are bound by a different set of rules when compared to other U.S. citizens. Some of the normal safeguards and protections that civilians enjoy are much more restrictive for military service members, and this is generally for a good reason. Such restrictions are partly due to the complex demands and needs of the United States military. Congress and the President have entrusted military commanders with special powers that enable them to handle minor violations of law without needing to go through a full judicial proceeding. Non-judicial punishments (NJP), also known as Article 15s, are …

A Synthesis Of The Science And Law Relating To Eyewitness Misidentifications And Recommendations For How Police And Courts Can Reduce Wrongful Convictions Based On Them, Henry F. Fradella

Seattle University Law Review

The empirical literature on perception and memory consistently demonstrates the pitfalls of eyewitness identifications. Exoneration data lend external validity to these studies. With the goal of informing law enforcement officers, prosecutors, criminal defense attorneys, judges, and judicial law clerks about what they can do to reduce wrongful convictions based on misidentifications, this Article presents a synthesis of the scientific knowledge relevant to how perception and memory affect the (un)reliability of eyewitness identifications. The Article situates that body of knowledge within the context of leading case law. The Article then summarizes the most current recommendations for how law enforcement personnel should—and …

Redemption, Marissa Jackson Sow

Law Faculty Publications

In 1987, civil rights activist and widow of the Rev. Dr. Martin Luther King, Jr., Coretta Scott King, sued Boston University for approximately 83,000 letters and other documents deposited by her late husband at the University from 1964 to 1965. Dr. King, a Boston University alumnus, chose to house his documents at Boston University over other institutions based on the belief that the documents would be safest there. He stipulated with the University that he was simply giving over custody of the letters, and not ownership thereof; however, he further stipulated that in the event of his death, all documents …

Reforming Shareholder Claims In Isds, Julian Arato, Kathleen Claussen, Jaemin Lee, Giovanni Zarra

Articles

ISDS stands alone in empowering shareholders to bring claims for reflective loss (SRL) – meaning claims over harms allegedly inflicted upon the company, but which somehow affect share value. National systems of corporate law and public international law regimes generally bar SRL claims for strong policy reasons bearing on the efficiency and fairness of the corporate form. Though not necessitated by treaty text, nor beneficial in policy terms, ISDS tribunals nevertheless allow shareholders broad and regular access to seek relief for reflective loss. The availability of SRL claims in ISDS ultimately harms States and investors alike, imposing surprise ex post …

Anticipatory Deference: What Will Courts Decide And Not Decide Before Enforcing An Agreement To Arbitrate?, George A. Bermann

Faculty Scholarship

The question of deference in international arbitration usually arises when the issue before a decision-maker, be it a tribunal or a court, is one that has already been addressed and ruled upon by another decision-maker over an arbitration’s life-cycle. The salience of this question stems from the fact that international arbitration is a highly iterative and staged process over the course of which different actors are successively confronted with the same issue. This is particularly the case in regard to jurisdictional issues because the authority of a tribunal to entertain a dispute is potentially an issue at all stages.

But …

Crossing The Cultural Chasm And The Power Of Listening: How We Wrote A New Tenure Code, David Larson, Linda Hanson

Faculty Scholarship

Revising the Tenure Code of an institution of higher learning may be among the most challenging of the processes it undertakes, especially when there is a commitment to shared governance by its Board of Trustees and Faculty. At Mitchell Hamline School of Law, we recently experienced this process - both difficult and ultimately satisfying - following the combination of two law schools. In 2016, Mitchell Hamline School of Law became an independent institution formed through the combination of independent William Mitchell College of Law and Hamline School of Law, a school of Hamline University, both based in St. Paul, Minnesota. …

Beyond The Toolbox: Values-Based Models Of Mediation Practice, Robert A. Baruch Bush

Cardozo Journal of Conflict Resolution

No abstract provided.

Know Thyself - Embracing The Ambiguity Of War By Other Means, Anne Leslie

Cardozo Journal of Conflict Resolution

On paper, nothing predestined me for a career in cybersecurity. Much in the same way as nothing on paper predestined me for being involved in a multinational effort like Project Seshat to study and respond to the rising threats of 'hybrid warfare' and 'gray zone conflict', or to give a keynote address at the Cardozo Journal of Conflict Resolution Melnick Symposium themed "Negotiation Strategies for War by Other Means."

How To Undermine A Nation-State In 120 Days: Mediation And Negotiation In A Hybrid Warfare World, Christopher A. Corpora

Cardozo Journal of Conflict Resolution

The original and admittedly provocative title for this essay was "How to Take Down a State in 120 days" and the original November 2022, 20-minute presentation at Cardozo Law School was so titled. The intention behind the provocations was to demonstrate the speed of growing investment in and multi-disciplinary nature of the current hybrid war threat. We have not yet witnessed many state takedowns through this form of warfare; but we have seen states significantly undermined and captured in timelines almost as aggressive as the title suggests. We have seen authoritarian states and criminal organizations significantly weaken more vulnerable states, …

Negotiation Theories Engage Hybrid Warfare, Nancy A. Welsh, Sharon Press, Andrea Kupfer Schneider

Cardozo Journal of Conflict Resolution

When Calvin Chrustie and Chris Honeyman first approached the authors of this Article regarding the potential application of negotiation scholars' expertise to the problem of hybrid warfare, our first reaction was confusion. First, what exactly was hybrid warfare? Second, since "war" was in its name, what did our field have to say that could even potentially be useful? This Article, in some sense, is designed to begin to respond to those questions and, hopefully, to encourage other scholars in our field to weigh in with their contributions and criticisms. This Article represents only a start.

Thinking Ahead In The Grey Zone, Chris Honeyman, Ellen Parker

Cardozo Journal of Conflict Resolution

Readers who have recently begun to consider the implications of grey zone conflict or hybrid warfare for their own companies, law firms, or other organizations could be forgiven for seeing the entire subject as startling if not downright alarming. But some of our colleagues in this issue, notably Chris Corpora and Anne Leslie, have taken pains to point out how hybrid warfare could be seen instead as merely the latest and most technologically sophisticated version of attempts to undermine other countries which go back millennia. And the specific techniques that might help your company-or law firm, municipal government, university or …

A Portrait Of The Artist’S Heirs In Mediation: Adr Techniques To Prevent And Resolve Disputes Following An Author’S Death, Nicholas Beudert

Cardozo Journal of Conflict Resolution

If an author's work is powerful enough, or popular enough, it's likely that at some point someone will want to write about her. For scholars embarking upon these projects, the author's body of published work can provide insight into her psyche, but correspondence and other unpublished materials can also be valuable. Copyright law covers all of these materials, and when the author dies, she can bequest her copyright as she would the rest of her estate (if she hasn't transferred it during her lifetime). The recipient of these copyrights may now treat the copyrights as her own, as though she …

Big Screen Or Bust?: How Contractual Negotiations In Hollywood Must Adapt In The Streaming Era, Alexis Narotzky

Cardozo Journal of Conflict Resolution

Scarlett Johansson made her first appearance as her superhero alter-ego, the Black Widow, on May 7, 2010, in the movie Iron Man 2. Over the next intervening eleven years, Johansson appeared in several of Disney's Marvel ("Disney" or "Marvel") movies in supporting roles. On July 9, 2021, Marvel released the Black Widow with Scarlett Johansson as the lead character. Johansson's agreement for her character's eponymous film was built upon the expectation of large bonuses based on profit from outsized box-office receipts, understood as a profit-participation or contingent compensation contract. Johansson's lawyers negotiated for a "wide theatrical release" to protect …

The Future Of Arbitration In The United States: Textualism, A Tectonic Shift, And A Reshaping Of The Civil Justice System, Imre S. Szalai

Cardozo Journal of Conflict Resolution

No abstract provided.

Plea Bargaining In Homicide Cases: An Empirical Exploration In One State, Michael O'Hear, Darren Wheelock

Cardozo Journal of Conflict Resolution

No abstract provided.

Conflict Resolution-Negotiation: Liv V. Pga Tour, Ross Herman

Cardozo Journal of Conflict Resolution

No abstract provided.

Applying Family Mediation To The Creation Of Psychiatric Advance Directives, Olivia Kalsner Kershen

Cardozo Journal of Conflict Resolution

No abstract provided.

Arbitration Of Erisa Statutory Claims, Kathryn L. Moore

Law Faculty Books and Chapters

In light of the flood of fiduciary litigation in recent years, some plan sponsors have considered amending their plans to include provisions requiring mandatory arbitration of claims and waivers of class action or collective claims. All things being equal, arbitration is potentially more efficient and less costly than litigation, and plan sponsors hope that mandatory arbitration and class action waivers may save them time and money in the current litigious environment. In fact, however, under the current state of the law, arbitration provisions may lead to protracted litigation and additional costs, including the cost of litigating the enforceability of the …