Dispute Resolution and Arbitration Commons^™

Shackling The Secretary's Hands: Limits To Authorizing Whistle-Blower Settlements Under Section 210 Of The Energy Reorganization Act - Macktal V. Secretary Of Labor, Jay M. Dade

Journal of Dispute Resolution

In seeking to encourage nuclear industry employees to report safety concerns, Section 210 of the Energy Reorganization Act of 1974 (ERA) acts to protect such "whistle-blowers" in the event they are terminated or discriminated against because of their whistle-blowing activities.2 When an employee and an employer negotiate a Section 210 "whistle-blower" complaint and subsequently submit the settlement for approval, the Secretary of Labor faces certain encumbrances when reviewing the agreement . This limitation on review arises when certain provisions may be in violation of public policy.4 In Macktal v. Secretary of Labor, the United States Court of Appeals for the …

Less Law Than Meets The Eye, David D. Friedman

Michigan Law Review

A Review of Order Without Law: How Neighbors Settle Disputes by Robert C. Ellickson

Authority And Authenticity: Scribbling Authors And The Genius Of Print In Eighteenth-Century England, Marlon B. Ross

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Making A Commitment To Social Change: Extending The Canon Of Dispute Processing Research, Frank W. Munger

Articles & Chapters

No abstract provided.

Comsumer Dispute Resolution In Missouri: Missouri's Need For A True Consumer Ombudsman

Journal of Dispute Resolution

The purpose of this Article is to explore the practicality of such a "modest proposal." In determining whether Missouri really needs a consumer ombudsman, the first order of business must be to comprehend how consumer protection developed in Missouri. Once established, this framework sheds lights upon how complaints are processed and what remedies are available to Missouri consumers. Only after we know the extent of the typical consumer's helplessness can we start to appreciate the need for an alternative dispute resolution device in Missouri. Finally, this article concludes by proposing a viable solution to Missouri's consumer crisis-the Consumer Ombudsman.

Continuing Power Of Cultural Tradition And Socialist Ideology: Cross-Cultural Negotiations Involving Chinese, Korean, And American Negotiators, The, Richard W. Downing

Journal of Dispute Resolution

This Comment approaches the issue of "cultural" factors in international negotiations by examining cross-cultural negotiation in which the People's Republic of China (PRC) and Korea (North and South) have dealt with Western nations. First, the cultural heritage of these nations appears important. Confucian ideals, for example, have had a tremendous impact on China for thousands of years,7 and they continue to influence modern societies. Second, more recent political tradition, namely the "ideology" of Marx, Lenin, and Mao, has also had an impact on the conduct and goals of conflict resolution today. As one scholar states, the "Chinese view of negotiation, …

Settlement In Securities Fraud: Is Settlement Promoting Litigation - In Re Jiffy Lube Securities Litigation, Brian R. Hajicek

Journal of Dispute Resolution

In the complex securities fraud arena, partial pretrial settlement in cases involving multiple defendants would appear to reduce litigation in the dispute. However, conflict over the proper method of allocating responsibility for a damage award among settling and non-settling defendants can in fact increase litigation. Federal courts disagree as to which method most fairly and equitably apportions damage liability. In re Jiffy Lube Securities Litigation is the most recent case that touches upon the issue of damage allocation among settling and non-settling defendants. This Note will address competing policy considerations which drive courts to choose different allocative methods.

Tax Liability And Inarbitrability In International Commercial Arbitration, Thomas E. Carbonneau, Andrew W. Sheldrick

Faculty Scholarship

This essay engages in a narrow but crucial inquiry into the limits the inarbitrability defense may now impose upon the exercise of arbitral jurisdiction. While it is assumed that matters relating directly to status and capacity, testamentary dispositions, and title to immovable property fall outside the jurisdictional reach of international arbitrators, the question becomes whether any national regulatory laws, such as tax laws, benefit from the same status of inviolability.

Arbitration And Salary Inflation In Major League Baseball, Deborah R. Swank

Journal of Dispute Resolution

Major league baseball has undergone significant changes since its inception over a century ago.2 While the game itself remains basically the same, the system governing management and player relations is hardly the same as it was even twenty years ago.' In years past, team owners exercised absolute authority over terms of players' employment including player mobility and salary levels. 4 Under this system, players essentially had no voice in salary determinations and players were contractually restricted from signing with another team.5 Players were forced either to accept the terms as offered by management or to quit the game altogether.6

Title Page

Journal of Dispute Resolution

No abstract provided.

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.

Congress, The Executive Brand And The Dispute Resolution Process, Charles E. Grassley, Charles Pou Jr.

Journal of Dispute Resolution

This rapid, recent expansion in administrative proceedings and related litigation is not, of course, a unique or isolated phenomenon. It is part of a greatly increased reliance on our judiciary to decide all manner of social, political, and economic issues. Much of this litigation may be an inexorable result of complicated social and economic interactions, heightened resort to regulatory schemes to deal with environmental, health and safety, civil rights and welfare concerns, and other historical factors. However, the point has been reached where much of it is unnecessary, unproductive, and less than ideally suited for many of the conflicts involved. …

Confidentiality In Mediation: A Moral Reassessment, Kevin Gibson

Journal of Dispute Resolution

In discussing mediation confidentiality, it appears that different commentators address different issues. For example, some commentaries discuss only court ordered mediation while others consider the possibility of any intervention by a neutral to be mediation, and hence under scrutiny. There is also disagreement about what should be protected: pre-mediation screening calls, post session discussions among mediators and their supervisors and so on.5 In order to keep the discussion as broad and inclusive as possible, I will use "mediation" to refer to any organized intervention by an impartial third party and to any part of that process. Although some may consider …

Just, Speedy, And Inexpensive Or Just Speedy And Inexpensive - Mandatory Alternative Dispute Resolution In The Western District Of Missouri, April A. Fredlund

Journal of Dispute Resolution

This Comment will address five questions which may arise as challenges to the Western District of Missouri's implementation of its ADR program. First, is the experimental program designed by the court likely to be predictive? That is, will the program be able to tell us whether cost and delay are being reduced by the ADR program? Second, is the program as implemented likely to reduce cost and delay? Third, does the Western District of Missouri have authority to impose mandatory ADR on litigants? Fourth, is the provision for mandatory ADR constitutionally sound? And fifth, assuming affirmative answers to these questions, …

Waiver Of A Contractual Arbitration Agreement By Causing Prejudice To The Opponent: Should Federal Courts Adopt A Bright-Line Test - Kramer V. Hammond, Mark G. Anderson

Journal of Dispute Resolution

Due to the high costs of litigation and the backlog on court dockets, parties to a contract are beginning to rely more and more on contractual provisions requiring arbitration for future disputes.2 In the past, courts were reluctant to enforce these provisions,' but now the federal courts enforce a strong presumption in favor of such provisions.' Because of this strong federal policy, waiver of the contractual agreements is not easily inferred.5 To overcome this presumption federal courts have developed tests to determine when waiver of contractual agreements to arbitrate occurs.6 These tests focus on whether the opposing party has been …

Demise Of The Faa's Contract Of Employment Exception - Gilmer V. Interstate/Johnson Lane Corp., The, Michael G. Holcomb

Journal of Dispute Resolution

The recent trend in the federal courts is to expand the scope of the Federal Arbitration Act2 (FAA) to include statutory claims. 3 Gilmer v. Interstate/Johnson Lane Corp. illustrates this trend by compelling claims under the Age Discrimination in Employment Act of 19674 (ADEA) to arbitration pursuant to an arbitration clause in an employment contract' But does this trend neglect the rights of the individual employee vis-a-vis his employer and does it undermine the purpose of the "contract of employment" exception in the FAA?' This Note will examine the Gilmer case and its adherence to the current trend of expanding …

Arbitrator And The Double Jeopardy Clause: Does The Postman Always Ring Twice - United States V. Reed, The, David A. Cole

Journal of Dispute Resolution

When an arbitrator's decision is adverse to one party, does the double jeopardy clause2 prohibit further pursuit of the claim by the successful party? With the rising emphasis being placed on arbitration clauses in collective bargaining agreements, it was only a matter of time before this question arose in the workplace. In United States v. Reed3 the Eleventh Circuit established the test for determining if an arbitrator's decision invokes the double jeopardy clause.

L'Arbitrage Et Le Recouvrement Des Prêts Consentis À Des Débiteurs Étrangers, William W. Park

Faculty Scholarship

L'auteur explore le rile complexe de 'arbitrage dans le rglement des difflrends financiers intemationaux impliquant des dettes privies et publiques. II onus rappelle que le diveloppement 6conomique global bnlficie d'un climat de confiance dons les relations commerciales internationales. Los doctrines juridiques et les procidures qui ajoutent de l'incertitude dans le processus de remboursement des prfts ne peuvent que freiner I'allocation de crdits qui pourraient autrement favoriser le commerce et l'investissement outre-frontikre, particuli~rement dons les pays en vole do diveloppement.

The author explores the complex role of arbitration in the settlement of international financial controversies involving both private and public debt. …

Can Buckley Clear Customs?, Harold H. Bruff

Publications

No abstract provided.

Reinsurance: Bad Faith Considerations And Insolvency Dilemma, Hui-Ju Hsieh

LLM Theses and Essays

Reinsurance is insurance that an insurance company purchases from another insurance company. The original insurance company is called the reinsured, and the insurance company that is contracted is called the reinsurer. The main purpose of reinsurance is to disperse or spread the risk of loss. The reinsurance relationship is frequently characterized as an exercise of fiduciary responsibility based upon an undertaking of utmost good faith between contracting parties. However, disputes arise; most litigation involving reinsurance has been between reinsurers and persons not party to the reinsurance agreement. This paper’s first major area of discussion is the relationship between the reinsurer …

Labour Relations In The Academy: A Case Study At The University Of Saskatchewan, Peter Mackinnon

Dalhousie Law Journal

In the wake of a protracted period of faculty unrest at the University of Saskatchewan, two decisions of the province's Labour Relations Board, and an award of a sole arbitrator will have more enduring significance than the dispute that engendered them. In this paper I propose to consider this trilogy and comment on its importance in an assessment of labour relations in an academic setting.

Jury-Determined Settlements And Summary Jury Trials: Observations About Alternative Dispute Resolution In An Adversary Culture, Neil Vidmar, Jeffrey Rice

Florida State University Law Review

No abstract provided.

Pursuing Problem-Solving Or Predictive Settlement, Craig A. Mcewen

Florida State University Law Review

No abstract provided.

Trashing, Bashing, And Hashing It Out: Is This The End Of "Good Mediation"?, James J. Alfini

Florida State University Law Review

No abstract provided.

Pursuing Settlement In An Adversary Culture: A Tale Of Innovation Co-Opted Or "The Law Of Adr", Carrie Menkel-Meadow

Florida State University Law Review

No abstract provided.

Consolidation Of Separate Arbitration Proceedings: The Effect Of The United States Arbitration Act On The District Court's Power Under Federal Rules Of Civil Procedure 42(A) And 81(A)(3), Andrew A. Davenport

Mercer Law Review

Arbitration is an extra-judicial dispute resolution technique whereby parties agree to have an impartial third person, or panel of persons, decide a dispute. The agreement to arbitrate may occur before the dispute arises, usually by including an arbitration clause in the contract, or after the dispute arises. Arbitration clauses frequently designate the location of the potential arbitration and the agency (such as the American Arbitration Association ("AAA")) that will administer the arbitration and by whose rules the arbitration will proceed.

Confidentiality In Mediation: Status And Implications, Kent L. Brown

Journal of Dispute Resolution

Mediation is becoming an increasingly popular alternative to formal adjudication. Large mediation programs handling huge numbers of both civil and criminal cases have sprung up in several of the largest cities in the nation. In Tulsa, Oklahoma, when the police write a citation, they often write "mediation" in place of a dollar amount.' The mediation program in Columbus, Ohio, handled over 9,000 cases in a one year period.2 Of those 9,000 cases, 500 ultimately resulted in criminal charges, 3 and twelve resulted in one of the disputants murdering the other.4

Recent Developments: The Uniform Arbitration Act, Scott Blair, Amy Brice, Robert Carroll, Chuck Hatfield

Journal of Dispute Resolution

Since 1983, this annual Article 2 has been prepared to provide a survey of recent developments in the case law interpreting and applying the various state versions of the Uniform Arbitration Act3. The purpose is to promote uniformity in the interpretation of the U.A.A. by developing and explaining the underlying principles and rationales courts have applied in recent cases.

Feminist Theory, Professional Ethics, And Gender-Related Distinctions In Attorney Negotiating Styles, Lloyd Burton, Larry Farmer, Elizabeth D. Gee, Lorie Johnson

Journal of Dispute Resolution

Historically, law has been a male-dominated profession; only recently has it become possible to consider the woman's experience and perspective with respect to law practice generally and negotiation practice in particular. This paper addresses two gender-related issues: first, are there identifiable gender-related distinctions in the negotiating behavior of attorneys? Second, if there are discoverable differences, are they attributable to ethical perspectives linked to gender? In addressing these questions, this article begins by reviewing the literature on feminist theory, moral development, and negotiation theory. These themes are tied together in a review of the small but growing literature on negotiation ethics. …