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Articles 3151 - 3180 of 7745

Full-Text Articles in Dispute Resolution and Arbitration

"Pay-For-Delay" Settlements Post-Actavis: Why Mediation Can Tackle The "Unreasonable" Antitrust Settlements, Sheena Ching Jan 2015

"Pay-For-Delay" Settlements Post-Actavis: Why Mediation Can Tackle The "Unreasonable" Antitrust Settlements, Sheena Ching

Cardozo Journal of Conflict Resolution

This Note discusses the benefits that mediation can have on the reverse payment settlement and antitrust debate, and how it can satisfy the "rule of reason" requirement post-Actavis. Accordingly, Section II discusses the legislative history and policy of the Hatch-Waxman Act. It elaborates on the pioneer drug development process and how the combination of legislation and the inherent nature of drug development resulted in "pay-for-delay" settlements. Section III discusses majority and dissenting opinions in the landmark Supreme Court case FTC v. Actavis as well as the circuit split decisions that led up to the Court's ultimate ruling and …

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Mediation: The Best And Worst Of Times, Jacqueline Nolan-Haley Jan 2015

Mediation: The Best And Worst Of Times, Jacqueline Nolan-Haley

Faculty Scholarship

At this period in the evolution of dispute resolution, mediation is in a unique time zone, similar to what Dickens described in a Tale of Two Cities, as the best and worst of times, the seasons of Light and Darkness. It is the best of times, the season of Light and a time of joy in honoring human connections, as mediation is widely embraced in the public and private sectors. From government agencies and courts to corporations and United Nations peacemaking units, mediation offers a vision of hope in the midst of drowning bureaucracies, clogged dockets, corporate scandals and ethnic …

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Judicial Participation In Plea Bargaining: A Dispute Resolution Perspective, Rishi Batra Jan 2015

Judicial Participation In Plea Bargaining: A Dispute Resolution Perspective, Rishi Batra

Faculty Articles

There is a common perception that judges do not or should not play a role in the criminal plea bargaining discussions between prosecutors and defense counsel. However, in many state jurisdictions, judicial participation is allowed or even encouraged by statute or by case law. This Article briefly summarizes some of the issues with the plea bargaining process, including how structural issues with the way defense counsel are appointed and compensated, along with the power of prosecutors, makes good representation for defendants less likely. By then performing a fifty-state survey of rules for judicial participation in plea bargaining, the Article explicates …

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A Window Into The Soul Of International Arbitration: Arbitrator Selection, Transparency And Stakeholder Interests, Catherine A. Rogers Jan 2015

A Window Into The Soul Of International Arbitration: Arbitrator Selection, Transparency And Stakeholder Interests, Catherine A. Rogers

Faculty Scholarship

New Zealand Law Foundation International Dispute Resolution Lecture 2013, delivered at Stone Lecture Theatre, University of Auckland Faculty of Law, 26 November 2013. This essay derives from that lecture, which considers the important issue of arbitrator selection, appointment and challenge standards and procedures, and introduces the Arbitrator Intelligence project - a proposed solution for informational asymmetries that can affect the fairness of arbitrator selection and appointment.

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Repatriation Of Korean Cultural Property Looted By Japan-Can A Sincere Apology Resolve The Centuries-Old Korea/Japan Disputes?, Melissa (Youngjae) Koo Jan 2015

Repatriation Of Korean Cultural Property Looted By Japan-Can A Sincere Apology Resolve The Centuries-Old Korea/Japan Disputes?, Melissa (Youngjae) Koo

Cardozo Journal of Conflict Resolution

This Note will focus on the disputes between Korea, both North and South Korea, and Japan surrounding Korean cultural property looted by Japan and will explore concrete solutions for resolving such issues through alternative dispute resolution-more specifically, an apology. It will consider two predominant exampies of cultural property looting, which occurred during Japanese invasions of Korea-first, at the end of the sixteenth century and, the second, from 1910 to 1945. Additionally, Japan has frequently been characterized as being a "significant market" for stolen cultural property. It is reported that there are at least 34,157 objects of Korean origin in Japan, …

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Involved, Empowered And Inspired: How Mediating Halakhic Prenuptial Agreements Honors Jewish And American Law And Builds Happy Families, Lara Traum Jan 2015

Involved, Empowered And Inspired: How Mediating Halakhic Prenuptial Agreements Honors Jewish And American Law And Builds Happy Families, Lara Traum

Cardozo Journal of Conflict Resolution

This Note discusses the pitfalls of existing halakhic prenuptial protocols and advances the use of mediation in the prenuptial drafting process. Section II of this Note provides a history of Jewish marital and divorce law, explaining the significance of halakhic legal documents and religious arbitration units. Section III examines the unresolved relationship between Jewish and American systems, discusses the advent of American prenuptial agreements, and highlights the shortcomings of existing prenuptial agreements in the Orthodox Jewish community. Section IV proposes that prenuptial mediation best honors halakha, American law, and individual interests.

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Safe And Sound: How Adr Can Protect Aquatic Life And National Security, James Diskint Jan 2015

Safe And Sound: How Adr Can Protect Aquatic Life And National Security, James Diskint

Cardozo Journal of Conflict Resolution

Part I of this Note examines the background of the LFA conflict, introducing the reader to the parties involved in the litigation, the nature of LFA sonar technology, the applicable statutory laws, and the litigation history. Part II outlines ADR procedures and proposes that ECR mediation would serve as an ideal forum for the LFA dispute. ECR involvement would help protect both aquatic life and national security by empowering the parties to collaboratively find creative solutions to complex problems and reach closure from the unending cycle of litigation.

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Judging As Judgment: Tying Judicial Education To Adjudication Theory, Robert G. Bone Jan 2015

Judging As Judgment: Tying Judicial Education To Adjudication Theory, Robert G. Bone

Journal of Dispute Resolution

The thesis of this Article, simply stated, is that judicial education makes sense only against the backdrop of general ideas and beliefs about law, courts, and adjudication. These ideas and beliefs motivate a focus on educating judges and help guide more specific pedagogical choices. I explore this broad thesis from both a historical and a normative perspective. Historically, I argue that interest in judicial education caught fire in the 1960s in large part because of prevailing beliefs about law and the proper function of courts. Normatively, I argue that the connection between judicial education and normative views of courts and …

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Judicial Bias: The Ongoing Challenge, Kathleen Mahoney Jan 2015

Judicial Bias: The Ongoing Challenge, Kathleen Mahoney

Journal of Dispute Resolution

This article calls for a renewed commitment to judicial education on the roles that gender, race, class and other biases can have on judicial decisions and impartiality. This article also calls for the appointment of a more representative and diverse judiciary. An explosion of activity occurred for about a decade between the late 1980s until the late 1990s to promote and implement social context education for judges to help judges understand the realities of people most unlike themselves, and to appoint judges to be more representative of the population of Canada. But this trend has diminished to the point that …

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Writing Reasoned Decisions And Opinions: A Guide For Novice, Experienced, And Foreign Judges, S. I. Strong Jan 2015

Writing Reasoned Decisions And Opinions: A Guide For Novice, Experienced, And Foreign Judges, S. I. Strong

Journal of Dispute Resolution

Producing well-written reasoned judgments (a term that is used herein to denote both trial court decisions and appellate opinions) is the goal of all members of the bench. Badly written rulings can have significant legal consequences for both the parties, who may incur costs as a result of a need to appeal a poorly worded decision or opinion, and society as a whole, since a poorly drafted precedent may drive the law in an unanticipated and unfortunate direction or lead to increased litigation as individuals attempt to define the parameters of an ambiguous new ruling. As a result, helping judges …

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“Throwing The Baby Out With The Bathwater”: Parenting Coordination And Pennsylvania’S Decisions To Eliminate Its Use, Sophie B. Mashburn Jan 2015

“Throwing The Baby Out With The Bathwater”: Parenting Coordination And Pennsylvania’S Decisions To Eliminate Its Use, Sophie B. Mashburn

Journal of Dispute Resolution

Parenting coordination is a relatively new ADR practice utilized by courts to assist in resolving high conflict divorce cases. Though considered controversial by some, it can also serve as an effective tool for divorced parents who struggle with regular co-parenting decisions. Parenting coordination is defined as: A child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children’s needs, and with prior approval of the parties and/or court, making …

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Breaking The Impasse: A Two-Pronged Approach For Resolving Sovereign Debt Holdout Disputes, Alexander Shapos Jan 2015

Breaking The Impasse: A Two-Pronged Approach For Resolving Sovereign Debt Holdout Disputes, Alexander Shapos

Cardozo Journal of Conflict Resolution

Sovereign debt holdout disputes implicate billions of dollars. For nearly a decade, one such dispute has led to a de facto embargo on Argentina as well as an inability for investment funds to enforce multibillion-dollar judgments. Thus, it is significantly in the interests of both future sovereign bond issuers and future creditors to preemptively avoid unproductive impasses. But with no existing formal bankruptcy regime, sovereigns are left to litigate, arbitrate, or negotiate their debt disputes. This Note proposes that litigation is an inappropriate remedy to resolve such disputes-and instead, it proposes a two-pronged approach for preventing and resolving disputes. The …

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Where Do We Fight?: A Way To Resolve The Conflict Between A Forum Selection Clause And Finra Arbitration Rule 12200, Suleman Malik Jan 2015

Where Do We Fight?: A Way To Resolve The Conflict Between A Forum Selection Clause And Finra Arbitration Rule 12200, Suleman Malik

Cardozo Journal of Conflict Resolution

First, Section II summarizes the historical background of the dispute between Goldman Sachs & Co. ("Goldman Sachs") and Golden Empire Schools Financing Authority ("Golden Empire"). Second, Section II identifies the forum selection and merger clauses from the 2004 Broker-Dealer Agreement at issue in Golden Empire. Third, Section II provides a brief background of FINRA and its rules and regulations most pertinent to this dispute, mainly FINRA Rule 12200. Fourth, Section II discusses the emerging circuit split and explains the holdings from each of the circuits. As discussed more fully below, Golden Empire marks a growing circuit split over the availability …

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A Legislative Pendency Proposal To Address The Consumer Harm Caused By The Broken Retransmission System, Marla S. Merchut Jan 2015

A Legislative Pendency Proposal To Address The Consumer Harm Caused By The Broken Retransmission System, Marla S. Merchut

Cardozo Arts & Entertainment Law Journal

No abstract provided.

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When Disciplines Collide: Polygamy And The Social Sciences On Trial, Jodi Lazare Jan 2015

When Disciplines Collide: Polygamy And The Social Sciences On Trial, Jodi Lazare

Articles, Book Chapters, & Popular Press

This article draws on the Supreme Court of British Columbia's Reference re: Section 293 of the Criminal Code of Canada [the Polygamy Reference] as a concrete example of the benefits and limitations of intense judicial reliance on social science evidence in the adjudication of constitutional rights and freedoms at the trial level. By examining the evidence tendered, I suggest that the current adversarial model of adjudication is illsuited to combining the legal and the social scientific endeavours. The divergent values, methodologies and objectives of the legal and scientific enterprises severely limit the benefits that the former can yield, thus compromising …

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Law As An Ally Or Enemy In The War On Cyberbullying: Exploring The Contested Terrain Of Privacy And Other Legal Concepts In The Age Of Technology And Social Media, A. Wayne Mackay Jan 2015

Law As An Ally Or Enemy In The War On Cyberbullying: Exploring The Contested Terrain Of Privacy And Other Legal Concepts In The Age Of Technology And Social Media, A. Wayne Mackay

Articles, Book Chapters, & Popular Press

This article focuses on the role and limits of law as a response to cyberbullying. The problem of cyberbullying engages many of our most fundamental legal concepts and provides an interesting case study. Even when there is general agreement that the problem merits a legal response, there are significant debates about what that response should be. Which level and what branch of government can and should best respond? What is the most appropriate legal process for pursuing cyberbullies—traditional legal avenues or more creative restorative approaches? How should the rights and responsibilities of perpetrators, victims and even bystanders be balanced? Among …

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Hryniak: Two Years Later: The Multiple Applications Of ‘That Summary Judgment Case’ From The Supreme Court Of Canada, Jessica Fullerton, Suzie Dunn Jan 2015

Hryniak: Two Years Later: The Multiple Applications Of ‘That Summary Judgment Case’ From The Supreme Court Of Canada, Jessica Fullerton, Suzie Dunn

Articles, Book Chapters, & Popular Press

In January 2014, the Supreme Court of Canada released its decision in Hryniak v Mauldin2 and called for a “culture shift” in the approach to summary judgment and the civil justice system more generally. With the ambitious goal of reducing protracted, costly litigation that undermines access to justice – all the while ensuring the fair and just adjudication of disputes – it is surprising that Hryniak has not garnered more attention.

Or has it? It has been nearly two years since the Supreme Court’s call for change was levied. Since that time, Hryniak has been cited more than 800 times …

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Negotiator's Nook: The Ins And Outs Of Effective Negotiation, David Spratt Jan 2015

Negotiator's Nook: The Ins And Outs Of Effective Negotiation, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

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The Diversity Challenge: Exploring The 'Invisible College' Of International Arbitration, Susan Franck Jan 2015

The Diversity Challenge: Exploring The 'Invisible College' Of International Arbitration, Susan Franck

Scholarly Articles in Law Reviews & Journals

As diversity can affect the perceived legitimacy of a state’s dispute resolution system and the quality of judicial decisions, diversity levels in the national bench and bar have been an area of transnational concern. By contrast, little is known about diversity of adjudicators and counsel in international arbitration. With a lack of accurate, complete, and publicly available data about international arbitrators and practitioners, speculation about membership in the “invisible college” of international arbitration abounds. Using data from a survey of attendees at the prestigious and elite biennial Congress of the International Council for Commercial Arbitration permitted one glimpse into the …

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The Parts Are Greater Than The Sum: What I Learned From My Mediation Clinic Students, Floralynn Einesman Jan 2015

The Parts Are Greater Than The Sum: What I Learned From My Mediation Clinic Students, Floralynn Einesman

Faculty Scholarship

I co-created the Mediation Clinic at California Western School of Law (hereafter CWSL) with my colleague Linda Morton in 1996 to provide students the opportunity to learn the process of mediation and to mediate live disputes in the community. We recognized the importance of “soft skills” such as communication, collaboration, initiative, and adaptability and therefore we sought to create an experiential learning opportunity for the students that encouraged them to nurture those skills. We wanted to teach students conflict resolution skills and to have them work together to use those skills to help individuals in the community resolve actual disputes. …

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Table Of Contents - Issue 1 Jan 2015

Table Of Contents - Issue 1

Journal of Dispute Resolution

Table of Contents - Issue 1

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Judicial Education And Regulatory Capture: Does The Current System Of Educating Judges Promote A Well-Functioning Judiciary And Adequately Serve The Public Interest?, S. I. Strong Jan 2015

Judicial Education And Regulatory Capture: Does The Current System Of Educating Judges Promote A Well-Functioning Judiciary And Adequately Serve The Public Interest?, S. I. Strong

Journal of Dispute Resolution

First, the Essay considers certain obstacles to research concerning judicial education as a means of determining why more scholars have not sounded an alarm regarding practices in this field (Section II). The Essay then addresses a number of issues relating to the current approach to judicial education to determine whether and to what extent judicial control over this issue can be considered problematic (Section III). That analysis leads logically into a discussion of various ways that the possibility of regulatory capture of judicial education could be diminished (Section IV). Finally, the Essay concludes by drawing together various strands of analysis …

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International Arbitration, Judicial Education, And Legal Elites, Catherine A. Rogers Jan 2015

International Arbitration, Judicial Education, And Legal Elites, Catherine A. Rogers

Journal of Dispute Resolution

This essay sketches an account of how investment arbitration affects development of local legal institutions, in particular domestic courts. When investment arbitration is introduced into a local legal environment, it becomes integrated with international commercial arbitration, and often domestic arbitration. This integration occurs because the local economic elites, private law firms, and local businesses that deal with (or compete with) foreign investors and investment arbitration disputes also deal with international commercial matters, international commercial disputes, and domestic arbitration.

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Towards A New Paradigm Of Judicial Education, Mary R. Russell Jan 2015

Towards A New Paradigm Of Judicial Education, Mary R. Russell

Journal of Dispute Resolution

When talking about judicial education, a central question emerges: What is the goal of judicial education for judges? A simple answer springs to mind: To make us better judges, of course. This of course is a deceptively simple question with a deceptively simple answer, until there is an attempt to specifically identify how to accomplish this worthy judicial education goal, and that is where simplicity disappears

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Let Me In: The Right Of Access To Business Disputes Conducted In State Courts, David W. Brown Jan 2015

Let Me In: The Right Of Access To Business Disputes Conducted In State Courts, David W. Brown

Journal of Dispute Resolution

After examining the history of the First Amendment right of access to civil proceedings, this note will analyze how the two-pronged historical test applies to arbitrations conducted in a state court. The prongs of the test — experience and logic — provide the framework for the analysis conducted in this note.6 This note argues the analysis conducted in Strine was the correct approach, and suggests the implementation of Sunshine Laws similar to those in other states as a constitutionally permissible alternative that would satisfy the holding in Strine.

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Educating Judges—Where To From Here?, Livingston Armytage Jan 2015

Educating Judges—Where To From Here?, Livingston Armytage

Journal of Dispute Resolution

In this article, I present a critique of the emerging global practice of judicial education, which has been established and grown substantially over the past thirty years. There are four challenges relating to vision, pedagogy, knowledge and leadership that confront the continuing development of judicial education.

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Of Judges, Law, And The River: Tacit Knowledge And The Judicial Role, Chad M. Oldfather Jan 2015

Of Judges, Law, And The River: Tacit Knowledge And The Judicial Role, Chad M. Oldfather

Journal of Dispute Resolution

“What does it mean to be a judge?” That’s a tall order, and one is tempted to begin—and perhaps to end—by formulating taxonomy of characteristics that judges ought to have. Indeed, that is a tactic that others have used. The resulting lists differ in their particulars, but are broadly similar. The enumerated traits include attributes like intelligence, legal knowledge, judgment, decisiveness, and so on.

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Deference, Clarity, And The Future Of Arbitration In Investor-State Dispute Settlements, Robert N. Mace Jan 2015

Deference, Clarity, And The Future Of Arbitration In Investor-State Dispute Settlements, Robert N. Mace

Journal of Dispute Resolution

The result in BG Group, PLC demonstrates the Court’s desire to sustain arbitration as an effective and independent means of resolving disputes. The Court displayed an inclination to limit the influence of the judiciary on the process of BIT arbitration, recognizing the important position of BITs in global commerce and the prominence of the United States. Ultimately, the Court aligned the interpretive framework of domestic and international arbitration review in an effort to simplify review for courts and better inform stakeholders to the level of involvement of the judicial system in BITs that contain arbitration provisions.

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International Arbitration, Judicial Education, And Legal Elites, Catherine A. Rogers Jan 2015

International Arbitration, Judicial Education, And Legal Elites, Catherine A. Rogers

Faculty Scholarship

One potentially devastating critique of investment arbitration is that it undermines or hampers development of national legal institutions. Investment arbitration was originally conceived of as a means of encouraging foreign investment and strengthening rule of law for investment protection. Critics often question whether it actually contributes to either of these goals. If investment arbitration could not deliver on intended goals related to improvements in local legal institutions, it would be disappointing. If, however, investment arbitration not only failed to deliver benefits to, but instead affirmatively undermined, local legal institutions, it would be devastating. While numerous critics have leveled this charge, …

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The Problem With Frand: How The Licensing Commitments Of Standard-Setting Organizations Result In The Misvaluing Of Patents, David Arsego Jan 2015

The Problem With Frand: How The Licensing Commitments Of Standard-Setting Organizations Result In The Misvaluing Of Patents, David Arsego

Brooklyn Journal of International Law

Standard-setting organizations (SSOs) are bodies that oversee the development of technical standards. Technical standards are common technological designs that are used across a variety of platforms, for instance LTE, which is utilized throughout the mobile phone industry. Members of SSOs contribute different pieces of technology to an ultimate design, and if a patent covers the technology, it is called a standard-essential patent (SEP). SSOs require their members to license these patents to each other on fair, reasonable, and nondiscriminatory (FRAND) terms. This Note analyzes the FRAND requirement and the different ways that courts and private parties interpret it. The ambiguity …

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