Dispute Resolution and Arbitration Commons^™

Arbitration Case Law Update 2016, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

This chapter identifies decisions by the U.S. Supreme Court and selected federal and high state courts in the past year that interpret and apply the Federal Arbitration Act (FAA). This chapter also analyzes the impact some of these cases might have on securities arbitration practice.

Negotiation Symposium Virtual Book Club, John M. Lande

Faculty Blogs

As part of the Tower of Babel Symposium, speakers suggested publications providing useful insights about negotiation. The author conducted conversations with the speakers, which are collected in this post.

Sharing Risk In The Sharing Economy: Insurance Regulation In The Age Of Uber, Alexander B. Traum

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Book Review: Challenges And Recusals Of Judges And Arbitrators In International Courts And Tribunals, S. I. Strong

Faculty Publications

The proliferation of international courts and tribunals over the last few decades has made it increasingly important to ensure that such proceedings are entirely above reproach. In particular, questions have arisen about what should be done in cases where a judge’s or arbitrator’s continued presence threatens the legitimacy of the proceedings. As fundamental as this question is, very little has been written about the standards for challenge and removal of such officials. Fortunately, Challenges and Recusals of Judges and Arbitrators in International Courts and Tribunals, a new collection of essays edited by Chiara Giorgetti, Associate Professor of Law at the …

Book Review: The Conflict Paradox: Seven Dilemmas At The Core Of Disputes By Bernie Mayer, Kelly Browe Olson

Law Faculty Scholarship

Bernie Mayer's latest book is an excellent journey into seven key dilemmas in conflict. Mayer devotes a chapter to each of the following dilemmas: Competition and Cooperation, Optimism and Realism, Avoidance and Engagement, Principle and Compromise, Emotions and Logic, Impartiality and Advocacy, and Autonomy and Community. In this review, I suggest that the book is a thorough guide through seemingly diverse and opposing conflict theories. I go through each chapter and detail how Mayer sees these concepts as interwoven instead of oppositional. He walks his readers through what have been thought of as distinctive, even opposing, approaches, theories, and concepts …

Does Rigorously Enforcing Arbitration Agreements Promote “Autonomy”?, Hiro N. Aragaki

Indiana Law Journal

In recent years, the U.S. Supreme Court has helped transform arbitration law into a radical private-ordering regime in which freedom of contract has come to eclipse public regulation. Arbitration jurisprudence justifies this transformation in part on a profound and longstanding commitment to the ideal of individual autonomy, understood as the freedom—lacking in litigation—to select a disputing process best suited to one’s needs.

In this Article, I question the cogency of this justification. I argue, first, that autonomy has had different and sometimes conflicting meanings even within arbitration jurisprudence. Second, depending on the meaning one ascribes to autonomy, it is at …

Transcanada Lawsuit Highlights Need To Scuttle Tpp, Jeffrey D. Sachs, Brooke Güven, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

The Obama administration is still trying, against the odds, to push the Trans-Pacific Partnership trade and investment agreement (TPP) through the lame-duck session of Congress after the November presidential vote. The administration knows that TPP can’t pass before the election because both Hillary Clinton and Donald Trump oppose it; therefore, they are hoping for a stealth Senate vote between the election and inauguration of the new president in 2017.We can therefore “thank” TransCanada for reminding us why the TPP needs to be scuttled.

Magistrate Judges, Settlement, And Procedural Justice, Nancy A. Welsh

Faculty Scholarship

This Article begins, in Part I, with an overview of magistrate judges’ history and role generally, including a discussion of the mechanism of “blind consent” that must be undertaken before a magistrate judge may conduct a trial. Part I then turns to magistrate judges’ role in settlement and ADR, outlines the procedural and ethical rules governing judges’ role in settlement, and highlights research revealing lawyers’ concerns regarding judges’ role in settlement. In Part II, the Article provides a brief overview of mediation in the federal courts and considers the relationship between judge-hosted settlement sessions and mediation. With this background regarding …

Taking Charge 2016: A Study Of The Strategic Budgeting Priorities Of The Residents Of Lincoln, Nebraska, Lisa M. Pytlikzillig, Addison Fairchild

Lisa PytlikZillig Publications

This report presents the results of the 2016 Taking Charge initiative sponsored by the City of Lincoln. This initiative included an online survey and a half-day, face-to-face, Community Conversation. Most previous Taking Charge activities have focused more narrowly on the immediate concerns of an impending budget proposal (e.g. which specific programs should be funded or discontinued to maintain a balanced budget). This year’s efforts also focused on specific items relevant to the City’s future budget policy priorities. As usual, residents were also given the opportunity to rate the City’s performance and City officials on a variety of performance characteristics.

A …

Mindful “Judging” 1.5: The Science Of Attention, “Lie Detection,” And Bias Reduction – With Kindness, Clark Freshman, Shauna Shapiro, Sarah De Sousa

Journal of Dispute Resolution

This article addresses two overlapping audiences. We’ve written this article partly as a kind of manual like Mindfulness 1.0 for those who suspect they know little and as a resource to convince skeptical others, and the curious or even skeptical parts of ourselves, that mindfulness deserves its newfound, albeit shaky, respect. What is mindfulness and how can mindfulness help us judge, advocate, and negotiate? Judge Fogel’s writing and his position carry weight with many. This Article adds some of the latest research, including brain imaging and carefully controlled studies. We highlight multiple types of data from dramatic increases in working …

The Faa Vs. The Nlra And The Flsa: Have Courts Given The Faa Too Much Deference?, Nikki Clark

Journal of Dispute Resolution

This Comment will discuss whether courts have given too much weight to the FAA at the cost of making other federal laws such as the National Labor Relations Act (NLRA) and the Fair Labor Standards Act (FLSA) less effective. The NLRA and the FLSA are not the only federal laws that stand to be affected by the expanding application of the FAA. The Age Discrimination in Employment Act (ADEA) has also been affected by the FAA.

Table Of Contents

Journal of Dispute Resolution

No abstract provided.

An Innovative Matrix For Dispute Resolution: The Dubai World Tribunal And The Global Insolvency Crisis, Jayanth K. Krishnan, Harold Koster

Journal of Dispute Resolution

This study examines a legal experiment that occurred during the height of the global financial crisis. As markets from the United States to Europe to the Global South shook, one country – the United Arab Emirates (U.A.E.) – found itself on the brink of economic collapse. In particular, in 2009 the U.A.E.’s Emirate of Dubai (Emirate) was contemplating defaulting on $60 billion of debt it had amassed. Recognizing that such a default would have cataclysmic reverberations across the globe, Dubai’s governmental leaders turned to a small group of foreign lawyers, judges, accountants, and business consultants for assistance. Working in a …

State Legislative Update, M. Katherine Kerbs, Katherine E. Mcmurtrey, Courtney Lauer, Theresa Mullineaux

Journal of Dispute Resolution

Mediation is a non-binding type of dispute resolution. Mediation is a process where a neutral, third party with no authoritative decision-making power assists parties in a dispute to voluntarily reach a mutually acceptable agreement. The legal community has encouraged alternative dispute resolution, including mediation. With mediation as the primary alternative dispute resolution type in the federal district courts, it is now even more important that legislation surrounding mediation and confidentiality is created. In fact, over half of the ninety-four federal court districts now offer, and in most instances, require mediation.

Dispute Resolution Tools In Patent Infringement Cases: Aoki V. Gilbert, No. 2:11-Cv02787-Tln-Cnd, 2015 Wl 5734626 (E.D. Cal. 2015), Brandon Craig

Journal of Dispute Resolution

While arbitration has become a widely accepted alternative to litigation, the role it should play in patent disputes has been widely debated. Issued by the federal government, patents confer a temporary monopoly on the production, use, and sale of new innovations. The government may have an interest in keeping such disputes out of the private realm of arbitration, at least when the dispute is over the validity of the patent. For other patent issues such as licensing, which is essentially a private contract, arbitration may serve as a useful and cost-effective alternative. Even when arbitration is not warranted, other useful …

The English Inheritance—What The First American Colonists Knew Of Mediation And Arbitration, Derek Roebuck

Journal of Dispute Resolution

It seems fair to assume that the first American colonists took with them attitudes and practices from home, including the ways in which they routinely resolved disputes. For example, on November 11, 1647 the General Court of the Massachusetts Bay Colony authorized the purchase of Edward Coke’s Reports, First and Second Institutes and Book of Entries, “to the end we may have the better light for making and proceedings about laws.” But does that mean it was natural then for parties with differences to look to litigation for an answer? This Article provides ample evidence of a preference for other …

Professor Roebuck’S Lessons For Mediators, Arbitrators, And Historians, Douglas E. Abrams

Journal of Dispute Resolution

Professor Roebuck’s biographical essay on Nathaniel Bacon, the centerpiece of his historical article, delivers a timely lesson about how adherence to solid personal standards can elevate a mediator or arbitrator above the rest of the pack. With an eye toward future national direction, the article closes by summoning American historians to chronicle the development of alternative dispute resolution (ADR) since the nation’s colonial days.

Introduction: Judicial Education, Dispute Resolution, And The Life Of A Judge: A Conversation With Judge Jeremy Fogel, Director Of The Federal Judicial Center, Jeremy Fogel Hon., S. I. Strong

Journal of Dispute Resolution

In January and June 2016, Judge Jeremy Fogel, Director of the Federal Judicial Center, sat down with Professor S.I. Strong to discuss a variety of issues ranging from the civil rules amendments and the case management process to judicial education, mediation and the role of the Federal Judicial Center. Judge Fogel also gave his views on what lawyers, academics and the public need to know about the federal judiciary and the task of judging, thereby providing important and unique insights into the judicial process.

Seeking Justice For Grandma: Challenging Mandatory Arbitration In Nursing Home Contracts, Andi Alper

Journal of Dispute Resolution

This Comment advocates against the use of mandatory arbitration in nursing home admission contracts and discusses various legal theories available to refute such clauses. Part II discusses mandatory arbitration in general and its use in nursing home admission contracts. Part III summarizes some of the common arguments made in favor of and against arbitration in nursing home admission contracts. Finally, Part IV addresses how courts analyze these agreements and possible approaches to avoid arbitration of disputes arising out of the nursing home contract.

Mediators Without Borders And The Efficacy Of Community Mediation Centers In Israel And Palestine, Jenna Homeyer

Journal of Dispute Resolution

This Comment will also discuss whether using specific techniques from each center can help restore relations between the people of Israel and Palestine. “[C]ulture is not posited as the cause of conflict, instead, it is intertwined with conflict and the processes of resolution.” What makes each center successful is that they embrace cultural differences. Instead of viewing cultural differences as an obstacle to peace they use cultural norms like Sulha, a traditional Arab way to resolve conflict, to invite peace. Each of these processes maintains a person’s dignity through the resolution process, and helps each party see the opposing party …

Masthead

Journal of Dispute Resolution

No abstract provided.

The Evolution Of Interstate Arbitration And The Peaceful Resolution Of Transboundary Freshwater Disputes, Tamar Meshel

Journal of Dispute Resolution

This Article sets out to examine the potential for arbitration to be effectively employed by states in the resolution of transboundary freshwater disputes. Part II will describe the unique nature of TFDs, briefly examine the international law principles governing such disputes as well as the main mechanisms used for their resolution, and evaluate their adequacy. Part III will suggest a new approach to interstate arbitration, intended to ‘revive’ it in the context of TFD resolution. The first element of this approach calls for a return to the original purpose and true nature of arbitration, which rather than constituting a purely …

Brexit And Eu Mediation, Nadja Alexander

Research Collection Yong Pung How School Of Law

In this post on the Kluwer Mediation Blog, the impact Brexit may have on how London is perceived as a venue for cross-border mediation within the EU is analysed.

Trading With Socialist Partners, Josef Rohlik

Georgia Journal of International & Comparative Law

No abstract provided.

Foreign Investment Protection And Icsid Arbitration, Charles Vuylsteke

Georgia Journal of International & Comparative Law

No abstract provided.

Where The “Puck” Is Going – And What Faculty Should Do To Help Students Get There, John Lande

Faculty Blogs

This post summarizes presentations and discussion at a program of the ABA Section of Dispute Resolution’s annual Legal Educators’ Colloquium. The conversation addressed anticipated changes that might affect legal and dispute resolution practice, how practice might change as a result, and how these changes could affect people’s teaching.

International Law - Justiciability - Appellants Have Standing To Seek Injunction Against United States Trade With Southern Rhodesia, But Their Suit States A Claim Incapable Of Judicial Resolution, George Shingler

Georgia Journal of International & Comparative Law

No abstract provided.

The Standard Investment Agreement: Text And Comments, Philippe Kahn

Georgia Journal of International & Comparative Law

No abstract provided.

Conference Summary: Problems And Prospects Of Trade With Eastern Europe And China, Chesterfield H. Smith, William C. Mott, William J. Casey, Philip M. Landrum, Jacobus T. Severiens, Dean Rusk, Evgeniy V. Bugrov, Andrzej B. Burzynski, Gabriel M. Wilner, Peter M. Flanigan, Benjamin Busch, Victor Hoa Li, Graham Metson, Donald Clark, Reg Murphy, Charles Hodgkins, C.C. Van Den Heuvel, Jeremy Russell, David Winter

Georgia Journal of International & Comparative Law

No abstract provided.

International Fisheries Regulation, John P. Rivers

Georgia Journal of International & Comparative Law

No abstract provided.