Dispute Resolution and Arbitration Commons^™

Constitutional Futurism As Pedagogy, Jeremiah Chin

Seattle University Law Review

Constitutional Law has transformed from a course on history to a discussion of current events. Cases like Students for Fair Admissions v. Harvard College, Dobbs v. Jackson Women’s Health Organization, and Loper Bright Enterprises v. Raimondo reveal that the study of constitutional law is not a static, or even linear, discussion of constitutional text and history. Law is a shifting, changing enterprise that reflects social constructions of power, authority, and identity. How do we teach, learn, and understand constitutional law that is so laden with history, riddled with theories of consistency and adherence to precedent, but ultimately subject …

Can We Train Bots To Negotiate Like Lawyers? And What Do We Learn About Bargaining As We Do?, Dwight Golann

Suffolk University Law School Faculty Works

Forthcoming in 79 Wash. U. J. of Law and Policy ____ (2025)

AI “bots” like ChatGPT can negotiate without training, but they are overly cooperative, making concessions that weaken their bargaining position—unlike skilled legal negotiators, who adapt their tactics to individual situations as well as what occurs in the process and move as needed between cooperative and competitive tactics.

The article explores how to train bots to “negotiate like lawyers” by giving them role instructions, knowledge about bargaining, and iterative practice, including step-by-step instructions to create a bargaining bot in ChatGPT.

The author notes that texts on negotiation, and his …

Role-Playing For Learning: Enhancing Skills In Doctrinal Courses, Yael Efron, Nellie Munin

DRI Press

This book addresses the need that educators have to make theoretical concepts tangible. Teachers across various subjects and educational settings grapple with the challenge of communicating abstract ideas to diverse audiences while aiming to ignite curiosity and sustain engagement. The authors offer their insight into the method of role-playing in various law courses in a highly diverse class. The book contains thirteen simulations with teaching notes, along with the theoretical background for this method of teaching.

This is the first in a series of skills books published as part of Mitchell Hamline School of Law’s Laboratory for Advancing Dispute Resolution …

Table Of Contents & Masthead, Karina Grobman

Pepperdine Dispute Resolution Law Journal

No abstract provided.

Civility And Inter-Cultural Dialogue: Negotiating Respect In The Law School Classroom And Beyond, Chris Chambers Goodman

Pepperdine Dispute Resolution Law Journal

Increasing polarization magnifies the importance of inter-cultural dialogue, which can be fruitful if the participants treat one another with civility. Civility manifests in various forms, and this Comment will focus on civility through the lens of Stephen L. Carter’s lauded book Civility: Manners, Morals, and the Etiquette of Democracy, applying lessons at the micro-level in the law school classroom. Part II explores various aspects of civility and the rules governing civility. Then, Part III focuses on civility in the legal profession and California’s new Continuing Learning Education (CLE) requirement. Next, Part IV briefly addresses views of civility from faith perspectives. …

Keynote Address: What Is An Enemy: Spirituality And The Attitude Of Forgiveness, Kenneth Cloke

Pepperdine Dispute Resolution Law Journal

Pepperdine Dispute Resolution Law Journal’s Symposium on Faith, Dialogue, and Meaning, held in November 2024. This Keynote Address explores the relationship between spirituality and conflict resolution, with a focus on forgiveness.

Collective Judo: Ethics And Access To Justice In Mass Arbitration Companies, Michael Doman

Pepperdine Dispute Resolution Law Journal

Over the past five years, several law firms have engaged in “mass arbitration.” This strategy involves aggregating hundreds or thousands of arbitrations and filing them all at once against a company, sometimes forcing the company to either pay huge sums to defend all the claims or settle with all the claimants. This Article discusses how mass arbitration coordinated by nonlawyers and companies should be legally protected by courts and regulators, provided that companies in this space erect specific ethical safeguards. Most notably, mass arbitration companies should implement better procedures to obtain informed consent from their customers, using technology to lower …

Not So "Fast And Furious": Why "Adjournment" Pending A Set-Aside Proceeding Could Further The New York Convention's Purposes, Martina Chun

Pepperdine Dispute Resolution Law Journal

This Comment considers “adjournment” of enforcement proceedings under Article VI of the New York Convention, which allows a “pause” or a “stay” on enforcement pending a set-aside proceeding. Adjournment is an effective tool when a party initiates a proceeding to set aside, or annul, an award. While adjournment may mean that the enforcement of an award is not as “fast and furious” as some may prefer, it may be the unheralded solution—often overlooked and seldom discussed – that, despite its low profile, can significantly promote efficiency and prevent issues arising from multiple cross-border litigation proceedings.

Being There: Perils Of Disembodied Mediation, Rob Mcniff

Pepperdine Dispute Resolution Law Journal

Following the growth of online mediation during the COVID-19 pandemic, practitioners and ADR scholars sought to delineate the virtues and shortcomings of the online process. Many report satisfaction with online mediation. Still, critics find the process devoid of emotional experience or otherwise “dehumanizing.” As ADR practitioners contrast online and face-to-face experiences, and recommend a forum to disputing parties, they should acknowledge that online platforms can never replicate physical encounters between embodied persons. This Article draws on the work of 20th century philosophers, psychologists, and sociologists to explore mediation as corporeal encounter between embodied subjects. Online mediation, by constraining the involvement …

Corruption's Challenge To Arbitral Legitimacy, Margaret L. Moses

Pepperdine Dispute Resolution Law Journal

The widespread growth of corruption in international business transactions has created a crisis of legitimacy for international arbitration. Because international contracts regularly provide for resolution of disputes by arbitration, the deep-rooted presence of fraud, bribery, money laundering and other illicit activity raises challenges to arbitrators about their proper role in resolving disputes tainted by corruption. In cases of corruption, parties may refrain from presenting facts and evidence that reveal their deceptive practices. Arbitrators need to be more interventionist in these kinds of cases than they have been in traditional arbitration practice. Following the Introduction in Part I, Part II of …

Stranger Disputes: When Artificial Intelligence Turns Arbitration Upside Down, Imre Stephen Szalai

Pepperdine Dispute Resolution Law Journal

Arbitration agreements are everywhere in the United States. These agreements already block access to courts in a troubling manner, and pursuant to these agreements, parties must resolve their disputes before a private, human arbitrator with broad, virtually unreviewable powers. However, with the growth of AI, companies could easily redraft their contracts to require arbitration before non-human bots or AI arbitrators instead of a human arbitrator. Based on the history, values, policy, and text of the Federal Arbitration Act (FAA), this Article concludes that the FAA would govern and support the use of an AI arbitrator. As a result, a pre-dispute …

Is Current “Repeat Player” Theory Much Ado Over Much Less—An Evidence-Based Overhaul, Edward P. Mcdermott

Journal of Dispute Resolution

This empirical study suggests that the existence and impact of the “repeat player effect” (“effect”) may be exaggerated. Legal and conflict resolution theorists suggest that the existence of repeat players is a process flaw. They opine that first time players (“one-shotters”) are at a disadvantage to repeat players. Stulberg extended this process flaw theory to mediation.

Arbitration: An Unstoppable Wave?, Matthew Boston

Journal of Dispute Resolution

In recent years, large companies have started favoring the use of compelled arbitration agreements. Arbitration is one of many mechanisms encompassed under alternative dispute resolution (“ADR”), a broad framework by which parties may seek alternatives to litigation. As a whole, ADR arose with the intent of avoiding the high costs of litigation. Arbitration became the “principal form of ADR” for a period of time, with cost savings in mind.

Cooperative Creativity: The Adr Foundations Of Modern Dance Copyright, Audrey O'Brien

Journal of Dispute Resolution

In the mid-twentieth century, the landscape of copyright was quickly changing, facing new technologies as well as cultural changes that would ultimately test the limits of the 1909 Copyright Act. Choreographic copyright protection changed immensely throughout the last half of the twentieth century, and one ballet company at the forefront of the changing tides of copyright law was the New York City Ballet (“NYCB”), led by choreographer George Balanchine. By the time Balanchine passed, the legacy of both his company, NYCB, and his body of copyrighted work was immense enough to determinatively color the way choreographic copyrights are handled under …

Faculty List

Journal of Dispute Resolution

No abstract provided.

Description

Journal of Dispute Resolution

No abstract provided.

Masthead

Journal of Dispute Resolution

No abstract provided.

Table Of Contents

Journal of Dispute Resolution

No abstract provided.

Introduction To The Symposium Issue, Allie Widick

Journal of Dispute Resolution

The following articles stem from the presentations at the 2024 Mizzou Law Center for the Study of Dispute Resolution 40th anniversary symposium. The symposium, titled Dispute Resolution at Forty: Looking Back, Looking Forward, featured some of the top legal scholars, including former Mizzou Law professors, and even a former Journal of Dispute Resolution Editor-in-Chief. The three panels discussed traditional and non-traditional dispute resolution forms, the NextGen Bar Exam, and emerging trends. A highlight of the event included a keynote address with Leonard Riskin, the first director of the Center for the Study of Dispute Resolution.

Looking Forward, Reflecting Back: The Promise Of Dispute Resolution To Reform The Criminal Legal System, Cynthia Alkon

Journal of Dispute Resolution

The criminal legal system in the United States is plagued by serious and systemic problems. There have been countless efforts at reform over the last many decades that have included changes in what is a crime, how crimes are punished, how prosecutors do their job, and changes in policing. Yet, despite these efforts, problems such as mass incarceration remain deeply embedded. It is easy to be swept up in pessimism when discussing the criminal legal system. Change is hard, at best incremental, and we seem to be in the beginning of an era of backlash against recent reforms. This is …

The Settlement Privacy-Transparency Matrix: Moving Beyond The Dichotomous Mindset In The Settlement Debate, Alyson Carrel, Peter K. Chan

Journal of Dispute Resolution

The philosopher Arthur Schopenhauer once wrote, “The first forty years of life give us the text; the next thirty supply the commentary on it.” Forty years after Owen Fiss’s seminal article “Against Settlement,” it is time to reimagine how we approach the settlement debate beyond traditional dichotomies. Just as Schopenhauer recognized that time and experience allow us to better understand our past, forty years of grappling with the settlement debate have given us the perspective to see its limitations, and now with emerging technologies, new possibilities. The ‘text’ of the debate—its dichotomous framing and distributive solutions—has shaped four decades of …

Psychology And Dispute Resolution: Looking Forward, Jennifer K. Robbennolt

Journal of Dispute Resolution

There is a long and deep history of interconnection between dispute resolution and psychology. Concepts like procedural justice permeate the literature. Psychologists have investigated and provided data about phenomena such as the fixed pie bias, impasse aversion, and reactive devaluation. Research drawing on the psychology of heuristics and biases has been influential, particularly in work on settlement decision making. Studies in this tradition have explored how framing, anchoring, anticipated regret, and different ways of considering options can influence the decisions made by disputants. Psychologists have explored the role of apologies in dispute resolution, the role of emotion in negotiation, and …

“America’S Peacemaker” Needs A Makeover: The Department Of Justice’S Community Relations Service Should Use Transformative Mediation And Restorative Justice In Today’S Black Lives Matter Movement, Julianna Leung

Journal of Dispute Resolution

On March 7, 1965, civil rights leaders John Lewis and Hosea Williams led hundreds of people across the Edmund Pettus Bridge in Selma, Alabama. Their goal was to march to the state capitol of Montgomery in protest of racial segregation and the suppression of African American voters. On the other side of Pettus bridge, state troopers and spectators waving Confederate flags waited for them. When the protesters reached the end of Pettus, state trooper Major John Cloud ordered them to stop the march and leave. Williams tried to speak with Major Cloud, but Major Cloud rebuffed him. When the protestors …

Volunteered Or Voluntold: Effectiveness Of Good Faith Clauses On Court-Ordered Mediation, J. Michael Moore

Journal of Dispute Resolution

Mediation is the “process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.” There is a growing trend in many states and the federal government to allow courts to refer parties to mediation or other forms of alternative dispute resolution (“ADR”). However, one of the distinguishing elements of a mediation is that the parties come to a voluntary agreement. If the court has forced the parties to mediate, does that negate the voluntary nature of mediation? The answer to this question appears to be yes, but the real …

Catching Up To Technology: Mediation’S Role In The Era Of Driverless Cars, Kaitlyn Puyear

Journal of Dispute Resolution

An autonomous vehicle (AV), also known as a driverless or self-driving car, is a vehicle that can operate itself and perform necessary functions without human intervention. Autonomous vehicles have been under development since the midtwentieth century and operate with the use of cameras and radar systems to acquire information about road conditions—allowing them to choose the easiest path of travel.

Struggling Access To Justice Through Mediation In Bangladesh: Headway Lessons From Australia, Jamila A. Chowdhury, Mehnaz Siddiqui

The Indonesian Journal of Socio-Legal Studies

Enormous case backlog and protracted delays in courts are hindering access to justice in Bangladesh. Consequently, an initiative to provide quick and low-cost consensual justice through mediation was first initiated in the family courts of Bangladesh in the year 2000. However, although after an initial success, the system has been struggling over the decades. While contemporary research has identified various constraints causing such meager disposal of cases in family courts, using expert interviews of family court judges and relevant literature review on Australian family courts, this Chapter reiterates such constraints to generate relevant headway lessons from Australia that has excelled …

Operationalising The Social Licence To Operate Along The Belt And Road: The Case For A Mediation-Focused Approach, Mark Mclaughlin

Research Collection Yong Pung How School Of Law

This article examines the intricate dynamics of community representation and stakeholder influence in the realm of international investment law. More specifically, it considers the most effective method by which to operationalise the concept of the ‘social licence to operate’ when attempting to resolve investor-state disputes. By utilising disputes relating to China’s Belt and Road Initiative as a case study, it is shown that the social impact of foreign investment projects is often a catalyst for arbitration claims. Community interests are insufficiently represented at the stage of procurement or admission of investment, which has led to violent clashes between investors and …

Valuation Procedure For Condemnation: A Fifty State Survey, David Griffiths

BYU Law Review

The Fifth Amendment requires statutorily authorized condemnors to provide just compensation to landowners for all takings. The procedural method used by states to determine just compensation varies widely among states and is often separate from the more standard procedures existing in traditional civil litigation. Regardless of their method, all fifty states and the District of Columbia each have their own unique procedure for determining just compensation. This Note distinctly classifies the procedural schemes currently used by states to initially value just compensation of condemned property into three general categories: (1) schemes that rely on commissioners to determine just compensation, (2) …

Purdue’S Side Effects: Using Due Process To Realign Mass Tort Bankruptcies, William A. Organek

BYU Law Review

In Harrington v. Purdue Pharma, the United States Supreme Court held that victims of the opioid crisis could not be forced to release their independent claims against the Sacklers, who owned and controlled Purdue, without the victims’ consent. Such releases had become a controversial mainstay of mass tort bankruptcy filings. Yet Purdue was decided on narrow, textualist grounds, leaving as a side effect many seemingly disparate and difficult questions unanswered. This Article argues that Purdue and its open issues should be analyzed through a broader due process lens in tension with some aspects of current bankruptcy practice but consistent with …

Public Policy And The Refusal To Enforce Foreign Arbitral Awards: A Comparative Analysis Of France, Singapore, And Vietnam, Phan Hoai Nam

Indonesian Journal of International Law

The multilateral frameworks governing the recognition and enforcement of arbitral awards, such as the 1958 New York Convention, along with the domestic laws of most states, are generally designed to promote the efficient enforcement of foreign arbitral awards. However, practical experience reveals inconsistencies in its application. While many states adhere to international principles, some - despite being signatories to the Convention - have exploited the broad concept of public policy to unjustifiably refuse enforcement within their jurisdictions. Conversely, other states have adopted a more restrictive approach, limiting the public policy exception to ensure predictability in enforcement. This article focuses on …