Dispute Resolution and Arbitration Commons^™

Appraising Surge In Legal Scholarship Regarding Restorative Justice And Discovering Lenses To The South: Is Global Criminal Justice Necessarily Different Than United States Ideal?, Nancy D. Erbe

ExpressO

The recent interest in restorative justice around the world provides a critical lenses to the South. Can we bridge our philosophical differences and preserve our most cherished ideals through a pragmatic look at viable alternatives. Restorative justice appears to be leading the way.

Appreciating Adr's Global Role With Good Governance, Nancy D. Erbe

ExpressO

Alternative dispute resolution is surging around the world given its parallels to and provision critically needed governance. International practitioners are interviewed to identify the most noteworthy trends and concerns. Will ADR erode or elevate good governance?

The North Korean Nuclear Crisis: Past Failures And Present Solutions, Morse Tan

ExpressO

North Korea has recently announced that it has developed nuclear weapons and has pulled out of the six-party talks. These events do not emerge out of a vacuum, and this article lends perspective based on an interdisciplinary lens that seeks to grapple with the complexities and provide constructive approaches based on this well-researched understanding. This article analyzes political, military, historical, legal and other angles of this international crisis.

Past dealings with North Korea have been unfruitful because other nations do not recognize the ties between North Korean acts and its ideology and objectives. For a satisfactory resolution to the current …

From St. Ives To Cyberspace: The Modern Distortion Of The Medieval 'Law Merchant', Stephen E. Sachs

ExpressO

Modern advocates of corporate self-regulation have drawn unlikely inspiration from the Middle Ages. On the traditional view of history, medieval merchants who wandered from fair to fair were not governed by domestic laws, but by their own lex mercatoria, or "law merchant." This law, which uniformly regulated commerce across Europe, was supposedly produced by an autonomous merchant class, interpreted in private courts, and enforced through private sanctions rather than state coercion. Contemporary writers have treated global corporations as descendants of these itinerant traders, urging them to replace conflicting national laws with a law of their own creation. The standard history …

Finding A Happy Ending For Foreign Investors: The Enforcement Of Arbitration Awards In The People's Republic Of China, Ellen S. Reinstein

ExpressO

The Chinese judicial system has long been criticized for its rampant local protectionism and corruption and its lack of protections for foreign parties. To avoid litigation in China, most foreign investors insist on arbitration clauses in their contract. But even if they win the arbitration, foreigners must return to the Chinese courts to enforce the arbitration awards. Western lawyers, scholars and business people have repeatedly criticized the Chinese courts for their unwillingness to enforce arbitration awards in favor of foreign investors in favor of Chinese parties.

Over the last ten years, the Chinese Supreme People’s Court has attempted to address …

The Legitimacy Crisis In Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions, Susan Franck

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The "Duty" To Be A Rational Shareholder, David A. Hoffman

ExpressO

How and when do courts determine that corporate disclosures are actionable under the federal securities laws? The applicable standard is materiality: would a (mythical) "reasonable investor" have considered the disclosures important. As I establish through empirical and statistical testing of 500 cases analyzing the materiality standard, judicial findings of immateriality are remarkably common, and have been stable over time. Materiality's scope results in the dismissal of a large number of claims, and creates a set of cases in which courts attempt to explain and defend their vision of who is, and is not, a "reasonable investor." Thus, materiality provides an …

Awakening An Empire Of Liberty: Exploring The Roots Of Socratic Inquiry And Political Nihilism In American Democracy, Maurice R. Dyson

ExpressO

This book review timely examines Cornel West’s latest sequel to his 1992 best seller, Race Matters. In Democracy Matters, West unflinchingly examines the waning of democratic energies and nihilistic practices of private and public sector in our present age of democracy. This review takes a critical examination of the logic underpinning West’s arguments, his nomenclature of various nihilism plaguing our society, the sometimes clumsy employment of literary devices and his thesis regarding the ‘niggerization’ of America after 9/11 that can serve as a basis for unifying collective action against imperialism. West makes a compelling argument that the public needs to …

Learning To Crawl: The Use Of Voluntary Caps On Damages In Medical Malpractice Litigation, Ralph Peeples, Catherine Harris

ExpressO

Medical malpractice insurance “crises” seem to recur with distressing frequency. Indeed, the escalating costs of malpractice insurance premiums have become the focal point for advocates of tort reform. While we know quite a bit about the medical malpractice system, we know very little about what might work to fix things. Many reforms have been tried; little has worked. The two most commonly attempted reforms – at least at present- are legislatively imposed caps on non-economic damages (i.e., pain and suffering) and the use of screening panels. Neither of these alternatives offers a satisfactory resolution to the problem.

This article proposes …

Peace And Justice: Notes On The Evolution And Purposes Of Legal Processes, Carrie Menkel-Meadow

Georgetown Law Faculty Lectures and Appearances

This text of the inaugural lecture for the A.B. Chettle, Jr. Chair in Dispute Resolution and Civil Procedure at Georgetown University Law Center presents an intellectual outline (theory and practice) for a house of justice built on the foundations of Lon Fuller, the Legal Process school, Jurgen Habermas' and Stuart Hampshire's social philosophy about democratic processes, the floors of comparative processes, drawing on the work of political theorist Jon Elster and empirical work on legal and political processes and the ceilings of new processes, like consensus building fora, truth and reconciliation commissions and other combinations of legal and political processes. …

Inter-American System, Diego Rodriguez-Pinzon

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Lawyers, Democracy And Dispute Resolution: The Declining Influence Of Lawyer-Statesmen Politicians And Lawyerly Values, Jeffrey W. Stempel

Nevada Law Journal

No abstract provided.

Recognition And Enforcement Of International Commercial Arbitration Awards, Shouhua Yu

LLM Theses and Essays

Arbitration is an effective way to solve disputes, through which parties from different countries can be partially free from anyone’s local jurisdiction. However, the recognition and enforcement of international arbitration awards still rely on the national court system. Since China opened its door to the world, more and more commercial disputes have been settled through arbitration. However, many foreign investors and writers have complained about the defects in the recognition and enforcement of arbitration awards in China. This paper will look into the causes of these defects in, and try to find ways to resolve the defects.

A Survival Guide For Small Businesses: Avoiding The Pitfalls In International Dispute Resolution, Susan Franck

Scholarly Articles in Law Reviews & Journals

In the past decade, the number of small, entrepreneurial businesses participating in the global economy has tripled. With this increase comes a rise in the number of cross-border commercial disputes. The unwary small business, not familiar with international transactions, may commit errors that adversely affect their ability to do and stay in business. This article focuses on analyzing which methods small businesses should use in constructing their dispute resolution provisions and how to avoid errors in drafting and negotiation.

The Ethics Of The Adversary System, Greg S. Sergienko

ExpressO

This article considers many commonly advanced criticisms of the adversary system. It provides an analytic framework that includes the likely results of changed ethical rules and that distinguishes and analyzes separately two different possible goals of the system, seeking the truth and promoting justice. The article is also unusual in the range of supporting materials that it synthesizes, which includes contributions from economic theory, psychological studies, philosophy, and traditional legal ethics.

The article concludes that changes in ethical codes meant to increase lawyers' duty to promote the truth will have a perverse result, decreasing the accuracy of litigation. This will …

Good Faith In The Cisg: Interpretation Problems In Article 7, Benedict C. Sheehy

ExpressO

ABSTRACT: This article examines the dispute concerning the meaning of Good Faith in the CISG. Although there are good reasons for arguing a more limited interpretation or more limited application of Good Faith, there are also good reasons for a broader approach. Regardless of the correct interpretation, however, practitioners and academics need to have a sense of where the actual jurisprudence is going. This article reviews every published case on Article 7 since its inception and concludes that while there is little to suggest a strong pattern is developing, a guided pattern while incorrect doctrinally is preferable to the current …

Evaluating Work: Enforcing Occupational Safety And Health Standards In The United States, Canada And Sweden, Daniel B. Klaff

ExpressO

The United States’ occupational safety and health enforcement system is breaking down. Klaff argues that much of this breakdown has to do with a fundamental lack of worker participation in the United States’ safety and health system. Klaff makes his case by comparing and contrasting the history and enforcement schemes of the United States, Canada, and Sweden. After arguing for economic rights as human rights, Klaff concludes by offering a set of recommendations for the United States’ occupational safety and health system based upon his value-centered analysis.

The Dilution Effect: Federalization, Fair Cross-Sections, And The Concept Of Community, Laura G. Dooley

ExpressO

The question of the relevant community from which a fair cross-section of jurors should be drawn has received little theoretical attention. This article seeks to fill that gap by using communitarian and postmodern theory to give content to the idea of "community" in the fair cross-section context. This analysis is timely and has grave practical importance, given that the federal government is increasingly assuming the prosecution of crime previously dealt with at the state level. This "federalization" of criminal enforcement has the second-order effect of changing the "community" from which criminal juries will be drawn, particularly in urban areas surrounded …

Binding Arbitration And Specific Performance Under The Faa: Will This Marriage Of Convenience Survive?, Kenneth Dunham

ExpressO

Traces the history of arbitration from ancient times to the present. Demonstrates how the process has changed and how it has been altered through the centuries into its present form enforceable under the FAA. Shows how specific performance is used to enforce arbitration in equity using the rules of contract law.

Private Parties And Wto Dispute Settlement System , Alberto Alemanno

Cornell Law School Inter-University Graduate Student Conference Papers

This paper examines the (non) role that private business operators play in the implementation of WTO Dispute Settlement Reports. More precisely, by analysing the legal status of these decisions in national and regional law, it looks at what individuals are entitled to obtain when a WTO Member ignores the results of a Dispute Settlement Body’s proceedings. As private business operators bear most of the economic costs of non-compliance, there is an increasing pressure for a more direct involvement of these parties in the Dispute Settlement System mechanims. The challenge is therefore to find a way to accommodate their interests within …

"Facilitative Adr's Global Popularity And Promise", Nancy D. Erbe

ExpressO

This article presents the results of research evaluating the effectiveness of cross cultural leadership to dispute resolution process in the Balkans, Cameroon, Nepal and Ukraine. Unexpectedly, universal themes emerge that passionately advocate facilitative and inclusive multicultural dispute resolution. At the very least, they call for closer scrutiny and consideration of facilitative dispute resolution's global potential.

Beyond Reparations: An American Indian Theory Of Justice, William C. Bradford

ExpressO

The number of states, corporations, and religious groups formally disowning past records of egregious human injustice is mushrooming. Although the Age of Apology is a global phenomenon, the question of reparations—a tort-based mode of redress whereby a wrongdoing group accepts legal responsibility and compensates victims for the damage it inflicted upon them—likely consumes more energy, emotion, and resources in the U.S. than in any other jurisdiction. Since the final year of the Cold War, the U.S. and its political subdivisions have apologized or paid compensation to Japanese-American internees, native Hawaiians, civilians killed in the Korean War, and African American victims …

Beyond Rights: Legal Process And Ethnic Conflicts, Elena A. Baylis

ExpressO

Unresolved ethnic conflicts threaten the stability and the very existence of multi-ethnic states. The realities of ethnic conflict are daunting: ethnic disputes tend to be both persistent and complex, and efforts to use democracy or ethnic-blind policies to deal with those conflicts tend to fail. While multi-ethnic states have struggled to devise political solutions for ethnic conflict, they have largely ignored the role that legal processes might play in resolving ethnic discord. But at certain crucial moments in the development of ethnic conflicts, legal processes such as mediation, adjudication, and constitutional interpretation might effectively address these disputes.

This article explores …

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble": A Closer Look At Vanishing Trials, Frederic Nelson Smalkin, Frederic Nelson Chancellor Smalkin

ExpressO

This article takes a fresh look at the increasingly discussed topic of the scarcity of civil cases reaching trial in the Article III system. The number of cases tried declined by more than one-fourth in the decade from 1989-1999, and the decline continued at about the same rate to the end of the latest year for which statistics are available, 2002, while ADR (particularly arbitrations) skyrocketed.

The authors examine the history of competing English courts (particularly Common Pleas and King's Bench) for signs that, in fact, market competition can arise among dispute-resolving bodies. They also apply economic analysis to the …

Procedural Justice, Lawrence B. Solum

University of San Diego Public Law and Legal Theory Research Paper Series

Procedural Justice offers a theory of procedural fairness for civil dispute resolution.

The Article begins in Part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits? This Article responds to the challenge posed by the hard question of procedural justice.

That theory is developed …

Procedural Justice, Lawrence B. Solum

ExpressO

The real work of procedure is to guide conduct. It is sometimes said that the regulation of primary conduct is the work of the general and abstract norms of substantive law—clauses of the constitution, statutes, regulations, and common law rules of tort, property, and contract. But substance cannot effectively guide primary conduct without the aid of procedure. This is true because of three problems: (1) the problem of imperfect knowledge of law and fact, (2) the problem of incomplete specification of legal norms, and (3) the problem of partiality. The solution to these problems is particularization by a system of …

Bringing Online Dispute Resolution To Virtual Worlds: Creating Processes Through Code, Ethan Katsh

NYLS Law Review

No abstract provided.

Barriers To Immigrant Laborers' Access To Workplace Rights, Anita Sinha

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman

Rutgers Law School (Newark) Faculty Papers

In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …

“All Aboard!” An Overview Of The Continuing Debate Regarding The Enforceability Of Dispute Resolution Provisions Of Filipino Seamen Employment Contracts, Richard V. Blystone

ExpressO

No abstract provided.