Dispute Resolution and Arbitration Commons^™

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

Cardozo Journal of Conflict Resolution

No abstract provided.

Pacifying Professional Negligence Disputes - The Prospective Path For Mediation Within The Psilocybin Industry, Miranda Sapoznik

Cardozo Journal of Conflict Resolution

No abstract provided.

Corporate Governance And Gender Equality: A Study Of Comply-Or-Explain Disclosure Regulation, Aaron A. Dhir, Sarah Kaplan, Maria Arabella Robles

Seattle University Law Review

In 2020, the Nasdaq Stock Market filed a proposal with the U.S. Securities and Exchange Commission seeking permission to adopt a board diversity-related disclosure requirement for its listed companies. In 2021, the SEC approved the proposal, thus entrenching Nasdaq’s position as the most significant stock exchange to date to mandate listing rules that reflect the intention of diversifying corporate boardrooms. Nasdaq’s movement into the diversity space is not the first attempt to address homogeneous boards in the U.S. In 2009, the SEC adopted a rule requiring publicly traded firms to report on whether they consider diversity in identifying director nominees. …

Judicial Ethics And The Eradication Of Racism, Dontay Proctor-Mills

Seattle University Law Review

In 2020, the Washington Supreme Court entrusted the legal community with working to eradicate racism from its legal system. Soon after, Washington’s Commission on Judicial Conduct (hereinafter the Commission) received a complaint about a bus ad for North Seattle College featuring King County Superior Court Judge David Keenan. Along with a photo of Judge Keenan’s face, the ad included the following language: “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities. David’s changing the world. He started at North.” The Commission admonished Judge Keenan for violating the Code of Judicial Conduct, in part …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Why Corporate Boards Should Include Lgbtq+ People, Jeremy Mcclane, Darren Rosenblum

Seattle University Law Review

Corporate boardrooms sit at the heart of most of society’s most consequential decisions but fall far short of the diversity of our society. The current movement toward board diversification aims to remedy the underrepresentation of marginalized groups on corporate boards. More recently, some efforts have included LGBTQ+ people, even though the basis for their inclusion on corporate boards remains largely unstated. This Article examines both the normative and instrumental bases for LGBTQ+ inclusion in board diversity initiatives, articulating unspoken assumptions and linking LGBTQ+ people to the broader inclusion effort. In so doing, it begins to surface the unique issues LGBTQ+ …

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

Cardozo Journal of Conflict Resolution

No abstract provided.

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 …

Victim-Offender Mediation: A Missing Component Of A Multi-Pronged Approach To Reduce New York City Subway Crime, Elizabeth Neuburger

Cardozo Journal of Conflict Resolution

No abstract provided.

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 …

Why And What Federal Nil Rights Legislation Is Needed, Matthew J. Mitten

Cardozo Arts & Entertainment Law Journal

The article argues that federal Name, Image, and Likeness (NIL) rights legislation is essential to maintain the amateur/educational model of intercollegiate sports, preserve the distinction between college and professional athletics, and ensure competitive balance. It emphasizes the need for national uniformity to prevent conflicting state laws and address antitrust concerns.

Competencies Of Ombuds In Higher Education, Alicia Booker

Department of Conflict Resolution Studies Theses and Dissertations

This study aimed to deepen the understanding of ombuds (i.e., ombudsman, ombudsperson) who practice in higher education settings by exploring what ombuds consider the critical competencies to fulfill a variety of professional functions, how ombuds acquired those competencies, and how ombuds are assessed and self-assess. The purpose of this qualitative case study was to make an empirically researched recommendation for an ombuds in higher education competency model. The researcher gathered data from 23 ombuds in the United States working in institutions of higher education. The researcher analyzed the data gathered from semi-structured interviews using descriptive coding in the first coding …

Opening The Virtual Window: How On-Line Processes Could Increase Access To Justice In The Criminal Legal System, Cynthia Alkon, Amy Schmitz

Faculty Scholarship

This article explores the potential of technology to improve access to justice (A2J) in criminal courts, specifically for nonviolent misdemeanor cases. Despite a push for innovation in courts, criminal courts have been slow to embrace change and technological innovation due to factors like constitutional constraints and funding limitations. This article argues that criminal courts need "virtual windows" alongside traditional "brick and mortar doors" to enhance A2J. It proposes a problem-solving approach focusing on misdemeanor cases, a high-volume category where technology can have a significant impact. The paper highlights the importance of ensuring defendants make "knowing and intelligent" pleas despite the …

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 …

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 …

Large Corporations And Investor-State Arbitration, Weijia Rao

Faculty Scholarship

Policymakers and scholars have expressed concerns about growing corporate influence over government regulations, including in the context of investor-state dispute settlement (“ISDS”). Encouraged by high profile victories and examples of “regulatory chill,” critics of ISDS have argued that it excessively serves large multinational corporate interests at the expense of government regulatory agendas. In part due to such criticisms, various proposals have been made, including the replacement of ISDS with multilateral investment courts or state-to-state arbitration.

This Article introduces a novel dataset on ISDS claimant characteristics, which reveals that most ISDS claimants are actually small- or medium-sized firms. Using this dataset, …

The Dischargeability Of Money Judgements Versus Property Interests In Arbitration Awards For Domestic Contributions In The Context Of Unmarried Couples, Gabriella Hansen

Bankruptcy Research Library

(Excerpt)

A debt which arises prior to the filing of the petition for discharge in bankruptcy is dischargeable unless it can be categorized as one of the statutory exceptions to discharge listed in section 523(a) of title 11 of the United States Code (the “Bankruptcy Code”). Section 523(a)(5) of the Bankruptcy Code prohibits the discharge of awards of domestic support due to a debtor’s spouse, former spouse, or child. Accordingly, maintenance, alimony, and child support, often awarded in divorce proceedings, fall under the federal bankruptcy law statutory exceptions to discharge for domestic support obligations.

When an unmarried couple separates and …

Exploring The Role Of Mandatory Mediation In Civil Justice, Nayha Acharya

Articles, Book Chapters, & Popular Press

In this article, I offer a framing of the debates around mandatory mediation that rest on the premise that a legitimate civil justice process depends on unhindered access to an adjudicative system, which must be recognized as a procedural right. This is a keystone of the rule of law, and a valid legal system that deserves the authority that it asserts is contingent on this. My central thesis is that requiring mediation (which is independent of the rule of law) before allowing full access to adjudication compromises the procedural rights of legal subjects, and the rule of law principle. Such …

Philosophical Counselling And Mediation Theory And Practice: Exploring A Pathway To Justice, Nayha Acharya

Articles, Book Chapters, & Popular Press

This paper will demonstrate how philosophical counselling would invaluably contribute to the arena of conflict resolution via mediation and civil justice generally. Mediation is a conflict resolution process that involves a third party who facilitates disputants in arriving at a self-determined resolution. This process is being incorporated into civil justice systems globally, but how mediation should be conducted to achieve truly just outcomes needs immediate and thoughtful attention. At its best, mediation empowers parties to co-create a just and fair resolution to their conflict through a dialogical exploration of their interests, needs, and relevant norms and values. This is dramatically …

Race & International Investment Law: On The Possibility Of Reform And Non-Retrenchment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The international investment regime is in flux. The mainstream practice of investment law and arbitration works on the basis of the regime’s foundations in contract and property law. However, critical scholarship in the field has unearthed the coloniality of power that permeates both the practice of international investment law and the current reform exercise led by the United Nations Commission on International Trade Law (UNCITRAL) Working Group III. These critical scholars warn of the imminent reproduction and entrenchment of the systemic inequities, power asymmetries, and investment law’s investor-state dispute settlement (ISDS) regime which is skewed against post-colonial host states. The …

From Cryptocurrencies To Cryptocourts: Blockchain And The Financialization Of Dispute Resolution Platforms, Matthew Dylag

Articles, Book Chapters, & Popular Press

This paper contributes to emerging discussions of blockchain governance through an analysis of dispute resolution platforms that reimagine justice. We focus specifically on Kleros, a blockchain-enabled dispute resolution platform, that promises to secure, authenticate, and democratize access to justice for the twenty-first century. We advance the concept of cryptocourts whereby jurors, incentivized by accumulating cryptocurrency, rapidly mobilize using principles of on-demand crowdsourcing to resolve disputes. We critique the broader social imaginaries that cryptocourts such as Kleros will result in a more open, trustworthy, transparent, and democratic systems of justice. These platforms instead pose important questions concerning their potential impact …

Accessibility In The Digital Age - Why The United States Needs A New Approach To The Americans With Disabilities Act, William J. Seguin

Cardozo Journal of Equal Rights & Social Justice

The note argues that the Americans with Disabilities Act (ADA) must be updated to address digital accessibility, as its current framework, designed for the physical world, fails to accommodate the realities of the digital age. The ADA's success in promoting physical accessibility contrasts sharply with its inadequacy in ensuring equal access to digital spaces, highlighting the need for a new approach that includes digital platforms under its protections.

Covid-19 And Investor-State Disputes: Have The Stars Aligned For Mediation?, Mark Mclaughlin

Research Collection Yong Pung How School Of Law

In response to the global pandemic, governments have compelled the production of ventilators, limited service provision to “essential” goods, suspended bills for electricity, gas and water, and implemented price and export controls. Regulatory measures have consciously inhibited economic activity and disrupted investment interests. Inevitably, foreign investors are among those adversely affected by measures directed towards the containment of COVID-19. Since the first bilateral investment treaty (“BIT”) was concluded in 1959, international investment agreements (“IIAs”) have served as derogations to the general international law principle that States have absolute discretion to restrict and regulate foreign investors within their territories.2 As such, …

Introduction: Negotiation Strategies For War By Other Means, Chris Honeyman, Andrea Kupfer Schneider

Cardozo Journal of Conflict Resolution

We are delighted to introduce the topic of hybrid warfare into the dispute resolution field, with the first symposium for a law audience focused on how hybrid warfare might be more effectively understood, and defended against, through negotiation theories. In the last three-plus years we, along with three colleagues, have enlisted a number of additional colleagues from a variety of fields in a very unusual project-how to engage with a type of conflict often called grey zone conflict (by some people) or hybrid warfare (by others). Our conflict management experts have come from a wide array of disciplines, as well …

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.

The Uncitral Model Law At The Us State Level, George A. Bermann

Faculty Scholarship

The arbitration law of the United States remains, regrettably, the Federal Arbitration Act (FAA), enacted in 1925 and essentially unchanged. Despite its age, it has been significantly amended only once, in order to transpose into law the New York and Panama Conventions. Otherwise, it reads just as it did when enacted almost a century ago. Given its age and the remarkable developments in the law of arbitration over past decades, the FAA unsurprisingly fails to address a very large number of issues that have arisen in arbitral proceedings and judicial decisions on arbitration in the many intervening years. Even the …

Res Judicata In International Arbitration, George A. Bermann

Faculty Scholarship

Res judicata, or claim preclusion, is no less important a matter in international arbitration than in national court litigation. Nothing less than the finality of an adjudication is at stake. In principle, a tribunal should decline to adjudicate a dispute if it has already been adjudicated either in a prior judgment or award. Apart from all the disadvantages of duplicative proceedings, a tribunal’s failure to treat a prior adjudication as preclusive made lead to set aside of its award. Even if an adjudication is final and binding, or in the case of an award entitled to recognition, certain so-called “identities” …

Access To U.S. Discovery In International Commercial And Investor-State Arbitration, George A. Bermann

Faculty Scholarship

A provision of U.S. law — 28 U.S.C. section 1782 has for decades enabled litigants in foreign courts and international tribunals to avail themselves of U.S.-style discovery. Litigants and even so-called other interested parties have access to documentary and testimonial evidence even though the parties and dispute have no connection with the U.S. and such discovery is unavailable in the fora where the proceedings are pending. Use of this powerful evidence-gathering tool section 1782 in proceedings before foreign courts and international tribunals has become commonplace.

Among the most controversial issues in the U.S. law of international arbitration in recent years …

Intra-Eu Investment Disputes And The Monopoly Over The Interpretation Of Eu Law, Petros C. Mavroidis, Frederico Ortino

Faculty Scholarship

Following a recent European Charter Treaty (“ECT”) decision, it appears that the fate of intra-EU investment disputes, when adjudicated in fora other than the Luxembourg courts, is finally all but sealed. In Green Power, an arbitration tribunal confirmed prior decisions taken in different jurisdictions that there is no room for adjudicating intra-EU investment disputes away from Luxembourg. This decision sided with the approach already developed by the Court of Justice of the European Union (“CJEU”) in three decisions, namely, Achmea, Komstroy, and PL Holdings, which in turn led to legislative action by the Energy Charter Treaty aiming to put an …