Dispute Resolution and Arbitration Commons^™

Consideration Of 'Contracting Culture' In Enforcing Arbitration Provisions, Amy J. Schmitz

Faculty Publications

The Federal Arbitration Act mandates strict and uniform enforcement of standardized pre-dispute arbitration provisions. This may not be proper, however, in light of the importance of context with respect to these provisions. This Article therefore seeks to remind courts of the importance of exchange context by proposing a "contracting culture" continuum for enforcing these arbitration provisions that acknowledges the impacts of these provisions in a particular communal context. "Contracting culture" encompasses economic and non-economic relational factors that impact dispute resolution agreements, but go beyond common conceptions of "culture" focused on ethnicity, nationality, or religion. It also explores beyond the primary …

The Arbitration Penumbra: Arbitration Law And The Rapidly Changing Landscape Of Dispute Resolution, Thomas J. Stipanowich

Nevada Law Journal

No abstract provided.

Process Purity And Innovation In Dispute Resolution: A Response To Professors Stempel, Cole, And Drahozal, Richard C. Reuben

Faculty Publications

This article uses a "process characteristics and values" approach to make the case against displacing arbitration finality with substantive judicial review. It responds to a trio of articles in a forthcoming Nevada Law Review symposium on whether and how the Federal Arbitration Act should be amended. In one article, Nevada Law Professor Jeffrey Stempel contends all arbitration awards should be subject to substantive judicial review similar to that of public trial courts. In a second article, Ohio State Professor Sarah Cole argues that substantive review should generally be permitted when the parties agree to it by contract, an issue now …

Returning To The Circle: The Reemergence Of Traditional Dispute Resolution In Native American Communities, Jessica Metoui

Journal of Dispute Resolution

An examination of Native American cultural definitions of justice illustrates the cultural relevance of traditional dispute resolution processes. Because these alternative processes focus largely on community inclusion and the importance of party healing after a crime, concepts central to Native American worldview, traditional dispute resolution is superior to the mainstream adversarial court system for handling many criminal matters in the Native American context. The successes of traditional dispute resolution processes in Native American communities are also evidence of the potential cross cultural applications of such processes within the mainstream criminal justice system

Private Rights And Collective Governance: A Functional Approach To Natural Resources Law, Eric T. Freyfogle

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

4 pages.

"Eric T. Freyfogle, Max L. Rowe Professor of Law, University of Illinois College of Law"

Judging Judges And Dispute Resolution Processes, John M. Lande

Faculty Publications

This article critiques Professor Chris Guthrie's lead symposium article entitled, "Misjudging." Guthrie's article makes two major arguments. The first is a descriptive, empirical argument that judges are prone to error because of three types of "blinders" and that people underestimate the amount of such judicial error. The second argument is prescriptive, recommending that, because of these judicial blinders, disputants should consider using non-judicial dispute resolution processes generally, and particularly facilitative mediation and arbitration.This article critiques both arguments. It notes that, although Guthrie presents evidence that judges do make the kinds of errors that he describes, his article does not address …

Coping With Lasting Social Injustice, Jonathan R. Cohen

UF Law Faculty Publications

Sometimes we experience poetry in human life -- a sense of joy and wonder, connectedness and meaning, and occasionally even transcendence. Sometimes we do not. This is, I believe, a general aspect of the human condition. Such generality notwithstanding, different persons face different obstacles to hearing that poetry. Some obstacles are internal, rooted in an individual's personality. Others are external, deriving from an individual's family, community, or society. This essay explores one distinctive and particularly difficult external obstacle to that poetic joy: lasting social subordination. How does lasting social subordination affect a subordinated person's ability to hear that poetry? What, …

Misjudging, Chris Guthrie

Vanderbilt Law School Faculty Publications

Judging is difficult. This is obviously so in cases where the law is unclear or the facts are uncertain. But even in those cases where the law is as clear as it can be, and where the relevant facts have been fully developed, judges might still have difficulty getting it right. Why do judges misjudge? Judges, I will argue, possess three sets of "blinders": informational blinders, cognitive blinders, and attitudinal blinders. These blinders make adjudication on the merits - by which I mean the accurate application of governing law to the facts of the case - difficult. This difficulty, in …

Eleven Big Ideas About Conflict: A Superficial Guide For The Thoughtful Journalist, Leonard L. Riskin

UF Law Faculty Publications

When Professor Richard Reuben asked me to speak about the most basic ideas in conflict resolution to a group that included renowned journalists and journalism scholars, I balked. Surely these notions would seem too obvious, mundane, or superficial. But Richard - a practicing journalist for many years as well as an expert on conflict - assured me that the audience would find most of them surprising and useful. I hope he is correct.

I plan to present eleven ideas from the dispute resolution literature that I find particularly helpful in my work and life and which I think any journalist …

Introduction To The Symposium Issue On Alternative Dispute Resolution Strategies In End-Of-Life Decisions, Carol B. Liebman

Faculty Scholarship

At about 8:30 p.m. on a spring evening approximately twenty-five years ago when I was living in Newton, Massachusetts, our telephone rang. It was the emergency judge on duty that week asking me to go to a nearby suburban hospital to represent a sixty-eight-year-old woman whom I'll call Mrs. P. She had been hospitalized for heart failure and was refusing treatment, saying that she wanted to die with dignity.

Mrs. P and her husband had traveled to Boston from her home, a small town in New York about five hours away, to meet their newest grandchild. When I arrived at …

Social Conflict: Some Basic Principles, Dean G. Pruitt

Journal of Dispute Resolution

The term "conflict" has two generally accepted meanings.' The first refers to overt conflict-an argument, fight, or struggle. The second refers to subjective conflict-Party's perception that Party and Other have opposing beliefs or interests, or that Other has deprived or annoyed Party in some way. The latter concept is richer for theory building than the former, in that there are several strategies Party can employ in reaction to subjective conflict. Party can take a contentious approach and retaliate, or Party can try to impose its will on Other by means of an argument, demand, or threat. This strategy is very …

The Flight From Arbitration: An Empirical Study Of Ex Ante Arbitration Clauses In Publicly-Held Companies’ Contracts, Theodore Eisenberg, Geoffrey Miller

ExpressO

We study a data set of 2,858 contracts contained as exhibits in Form 8-K filings by reporting corporations over a six month period in 2002 for twelve types of contracts and a seven month period in 2002 for merger contracts. Because 8-K filings are required only for material events, these contracts likely are carefully negotiated by sophisticated parties who are well-informed about the contract terms. These contracts, therefore, provide evidence of efficient ex ante solutions to contracting problems. The vast majority of contracts did not require arbitration. Only about 11 percent of the contracts included binding arbitration clauses. The rate …

Crystals, Mud, Bapcpa, And The Structure Of Bankruptcy Decisionmaking, R. Wilson Freyermuth

Faculty Publications

A critical feature of any legal system is its formal dispute resolution mechanism. From the perspective of a transactions lawyer, the dispute resolution process should be structured to accomplish (or at least contribute positively toward) doctrinal clarity.

Working With Len, James E. Westbrook

Journal of Dispute Resolution

Len Riskin joined the MU faculty in 1984. Our faculty had voted in response to a recommendation of Dean Dale Whitman to begin a new emphasis on alternative dispute resolution. My recollection is that we had a group of very capable teachers with a traditional bent. On the other hand, they had an open mind about trying something new and they got along with each other very well. The kind of faculty we had and the leadership provided by Len, Dale Whitman and a few faculty members such as Tim Heinsz enabled us to do something that surprised a lot …

After Basic Mindfulness Mediation: External Mindfulness, Emotional Truthfulness, And Lie Detection In Dispute Resolution, Clark Freshman

Journal of Dispute Resolution

Some years ago, our mutual friend, Carrie Menkel-Meadow, suggested Len Riskin and I talk about our shared interest in mindfulness meditation and negotiation. At the time, I had students sit quietly, eyes closed, get in touch with what was going on before a negotiation, write it out, and then crumple up the paper. It was a primitive form of meditation and journaling and, as I look back through research, not a very sound theoretical or empirically-supported way to help.' Eventually, mindfulness meditation and practices helped move me from my very primitive attempts at mindfulness to a very rich practice that …

Final Offer Arbitration In The New Era Of Major League Baseball, Spencer B. Gordon

ExpressO

This article provides a comprehensive analysis of the economic, athletic, and social impact of final offer salary arbitration in Major League Baseball (“MLB”). The article delves into the motivations, fluctuations, and evolution of the player-owner relationship and free agency. The commentary then focuses on the distinguishing features and intricacies of final offer arbitration. Although salary arbitration in the context of Major League Baseball is a topic oft discussed in the law review setting, the analysis rarely reaches the level exhibited in this article. Moreover, most articles on the subject were written between 1996 and 2000 when the 1994 players’ strike …

The Lack Of Dissent In Wto Dispute Settlement: Is There A “Unanimity” Problem?, Meredith Kolsky Lewis

ExpressO

This article is the first piece of scholarship to analyze in detail the fact that there has been almost no dissent in World Trade Organization (WTO) dispute settlement reports. The article first examines the empirical data with respect to dissenting and concurring opinions at both the panel and Appellate Body levels. Fewer than five percent of panel reports and two percent of Appellate Body reports contain separate opinions of any kind. It second shows that the WTO is in fact actively discouraging dissents, and discusses why this might be the case. The article argues that dissents are valuable in general, …

Thou Shalt Love Thy Neighbor: Rluipa And The Mediation Of Religious Land Use Disputes, Jeffrey H. Goldfien

ExpressO

Religious land use disputes are characterized by high levels of conflict and the potential to seriously undermine social capital in affected communities. Contemporary land use procedures reflect an antiquated heritage and reliance upon adversarial means that are inadequate to successfully resolve these socially complex local conflicts. While there are practical obstacles, mediation holds advantages over these existing procedures in terms of dispute resolution, and has greater potential to preserve and build social capital at the local level. This article examines the theoretical justification for mediation in this context, and argues for moving beyond the status quo.

Arbitration Costs And Contingent Fee Contracts, Christopher R. Drahozal

Vanderbilt Law Review

A common criticism of arbitration is that its upfront costs (arbitrators' fees and administrative costs) may preclude consumers and employees from asserting their claims. Some commentators have argued further that arbitration costs undercut the benefits to consumers and employees of contingent fee contracts, which permit the claimants to defer payment of attorneys' fees and litigation expenses until they prevail in the case (and if they do not prevail, avoid such costs altogether). This paper argues that this criticism has it exactly backwards. Rather than arbitration costs interfering with the workings of contingent fee contracts, the contingent fee mechanism provides a …

Modernizing Security In Rents: The New Uniform Assignment Of Rents Act, R. Wilson Freyermuth

Faculty Publications

This article explains the provisions of the UARA and encourages its prompt adoption in states that presently lack comprehensive statutes governing security interests in rents.

The Role Of Medicare In Medical Malpractice Reform, William M. Sage

Journal of Health Care Law and Policy

No abstract provided.

Securities Mediation: Dispute Resolution For The Individual Investor, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

Part I of this article will provide a brief history of ADR in the securities industry (primarily arbitration), and then will describe the emergence of mediation as an alternative to arbitration. Part II will explore the state and federal statutory regulations that arguably govern the securities mediation process, and their impact on procedural and substantive justice. In particular, this section will review the applicability to and impact on securities mediation of the Securities Exchange Act of 1934 (1934 Act), the Federal Arbitration Act (FAA), and state mediation statutes, including the Uniform Mediation Act. In this section, I will argue that …

The Democratic Legitimacy Of Government-Related Dispute Resolution, Richard C. Reuben

Faculty Publications

The elective branches get most of the attention when we think about democracy. But it's important to remember that one of the things that a democratic government provides is a number of structures by which disputes may be resolved peacefully. Indeed, voting itself is one way of resolving conflict at a societal level. In the United States, courts historically have been the starting point for the resolution of individual, and sometimes social, disputes. Courts would seem to exude a great deal of democratic legitimacy, but why, and under what conditions? And what about other methods of dispute resolution: How do …

Transformed, Not Transcended: The Role Of Extrajudicial Dispute Resolution In Antebellum Kentucky And New Jersey, Carli N. Conklin

Faculty Publications

The purpose of this paper is to explore the applicability of that conclusion to two states not studied by Horwitz: Kentucky and New Jersey. The study of Kentucky, a state that was largely agricultural in the antebellum period, will provide a case study for the argument that the destruction of arbitration in antebellum America was mainly due to a merchant-lawyer alliance.

Introduction To Vanishing Trial Symposium, John M. Lande

Faculty Publications

This symposium shows that "vanishing trial" phenomena touch an extremely broad range of issues including transformations of society, courts, dispute resolution procedures, and even the nature of knowledge. These phenomena relate to decisions by litigants in particular cases, court systems, national policy, and international relations. This subject is too large and complex for any symposium to analyze fully, especially at this early stage of analysis. This symposium makes an important contribution to this study, with theories and evidence about the existence, nature, and extent of reductions in trials and similar proceedings. It elaborates a range of theories about possible causes …

Confidentiality In Arbitration: Beyond The Myth, Richard C. Reuben

Faculty Publications

Many people assume that arbitration is private and confidential. But is that assumption accurate? This article is the first to explore that question in the important context of whether arbitration communications can be discovered and admitted into evidence in other legal proceedings - a question that is just beginning to show up in the cases. It first surveys the federal and state statutory and case law, finding that arbitration communications in fact are generally discoverable and admissible. It then considers the normative desirability of discovering and admitting arbitration communications evidence, concluding that the free discovery and admissibility of arbitration communications …

Enforcement Of Arbitral Awards Against Foreign States Or State Agencies, S. I. Strong

Faculty Publications

Britain's Lord Denning once said that “as a moth is drawn to the light, so is a litigant drawn to the United States.” Certainly, as a pro-arbitration state and a signatory to various international conventions concerning the enforcement of foreign arbitral awards, the United States seems a natural place to bring an action to enforce an arbitral award against a foreign state or state agency. However, suing a sovereign has not traditionally been a simple task in the United States or elsewhere. Most nations grant foreign states the presumption of immunity, thus denying that their domestic courts have jurisdiction to …

Research-Informed Models For Communicating The Value Of Court-Connected Alternative Dispute Resolution For Public Funding, Kevin Dye

Massachusetts Office of Public Collaboration Publications

The purpose of framing the research in the following models is to assist the court and its court-connected mediation programs in their ongoing dialogue with the funding decision-makers in addressing the question: Is state funding of community mediation centers and court ADR generally a worthwhile investment? As a means of setting forth components of an analytic framework, the following simplified financial models are offered to draw out salient aspects of the nature of the investment. The simplified models are employed primarily for the purpose of illustrating the investment in terms of classic financial models familiar to a budget analyst. These …

The Explained Award Of Damocles: Protection Or Peril In Securities Arbitration, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

NASD's proposed rule change requiring arbitrators to provide written explanations in arbitration awards upon the customers' request (the “explained award proposal”), which was published for public comment in July 2005, is the clearest example of NASD's proposing a rule change in response to investors' complaints. “We have found that investors want to know more about how a panel reaches its decision,” stated NASD Chairman and Chief Executive Officer Robert R. Glauber in announcing the explained award proposal. “By giving investors the option of requiring a written explanation of an arbitration panel's decision, we will increase investor confidence in the fairness …

Designer Trials, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

This article considers the intersection of freedom of contract and the trials that have not vanished. Could contracting parties effectively agree in advance of a dispute that any litigation of the case will comply with certain rules? Would such an agreement be enforced even in a contract of adhesion? If so, parties with sufficient bargaining leverage could design away many of the characteristics of litigation that they find unappealing, without the need to resort to private processes. The result: a designer trial with the procedural deck stacked in favor of the party with the greatest pre-dispute bargaining power.

Such a …