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Full-Text Articles in Legal Remedies

Filling The Gap Between Morality And Jurisprudence: The Use Of Binding Arbitration To Resolve Claims Of Restitution Regarding Nazi-Stolen Art , Rebecca Keim Apr 2012

Filling The Gap Between Morality And Jurisprudence: The Use Of Binding Arbitration To Resolve Claims Of Restitution Regarding Nazi-Stolen Art , Rebecca Keim

Pepperdine Dispute Resolution Law Journal

Recognizing the gaps in existing legislation, this article will argue that disputes arising between claimants and museums regarding the repatriation of Nazi-looted artwork should be decided by binding arbitration rather than litigation. To facilitate such arbitration, international law should support the creation of an arbitration commission, which would provide the most efficient and consistent way to resolve claims. Moreover, a neutral forum with clear rules of law and procedure capable of resolving claims would not only be more fair to claimants, but also to museums and personal collectors. This article will first discuss the severity and magnitude of Nazi looting …

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Will Eeoc V. Waffle House, Inc. Signal The Beginning Of The End For Mandatory Arbitration Agreements In The Employment Context? , Marc A. Altenbernt Apr 2012

Will Eeoc V. Waffle House, Inc. Signal The Beginning Of The End For Mandatory Arbitration Agreements In The Employment Context? , Marc A. Altenbernt

Pepperdine Dispute Resolution Law Journal

Since the inception of several employment and discrimination statutes, arbitration has grown exponentially as an alternative for the adjudication of employment disputes. The Supreme Court has traditionally held that statutory claims are indeed arbitrable pursuant to a valid arbitration agreement under the Federal Arbitration Act ("FAA"). In an effort to end employment discrimination based on "race, color, religion, sex, or national origin," Congress enacted the Civil Rights Act of 1964 ("Title VII"). In order to adequately effect this calling, the Equal Employment Opportunity Commission ("EEOC") was created as the Act's primary enforcement mechanism. While arbitration agreements under the FAA and …

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Contracting Around Ruaa: Default Rules, Mandatory Rules, And Judicial Review Of Arbitral Awards, Christopher R. Drahozal Apr 2012

Contracting Around Ruaa: Default Rules, Mandatory Rules, And Judicial Review Of Arbitral Awards, Christopher R. Drahozal

Pepperdine Dispute Resolution Law Journal

By specifying that its provisions generally are default rules and listing particular exceptions, the Revised Uniform Arbitration Act (“RUAA”) provides much needed certainty and avoids unnecessary litigation, at least compared to the Federal Arbitration Act, which does not always identify which of its provisions are default rules. In one important respect, however, RUAA jettisons that valuable certainty. The RUAA drafters left open (or at least sought to leave open) the question whether parties can contract to expand the grounds for judicial review of arbitration awards beyond those set out in the statute. In other words, the drafters purported not to …

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The Third Party Non-Signatory's Ability To Compel International Commercial Arbitration: Doing Justice Without Destroying Consent , James M. Hosking Mar 2012

The Third Party Non-Signatory's Ability To Compel International Commercial Arbitration: Doing Justice Without Destroying Consent , James M. Hosking

Pepperdine Dispute Resolution Law Journal

This article analyzes the legal theories and other mechanisms employed in international commercial arbitration to achieve a workable compromise among the above-cited propositions. In so doing it touches on larger, more complex questions like the position of third parties in contract law, the jurisdictional foundations of arbitration, and the role of choice-of-law issues in determining the validity of the arbitration agreement. However important these broader concerns may be, they should not undermine the importance of the issue in its own right.

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The Confirmation Of Punitive Awards In Arbitration: Did Due Process Disappear?, Stuart M. Boyarsky Mar 2012

The Confirmation Of Punitive Awards In Arbitration: Did Due Process Disappear?, Stuart M. Boyarsky

Pepperdine Dispute Resolution Law Journal

Part I of this article provides a brief overview of the reasoning behind the limited judicial review of an arbitral award. Part II describes the state action doctrine and explains how several courts have used the doctrine in order to apply due process protection to proceedings involving private actors. In particular, this section discusses several significant decisions that involve the issue of whether a court's confirmation of an arbitrator's award of punitive damages creates state action and requires the application of constitutional protections such as due process. This Note concludes that due to a leading decision by the Eleventh Circuit, …

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Forgive And Forget: Recognition Of Error And Use Of Apology As Preemptive Steps To Adr Or Litigation In Medical Malpractice Cases , Ashley A. Davenport Mar 2012

Forgive And Forget: Recognition Of Error And Use Of Apology As Preemptive Steps To Adr Or Litigation In Medical Malpractice Cases , Ashley A. Davenport

Pepperdine Dispute Resolution Law Journal

Medical malpractice cases are a special breed within the field of tort jurisprudence as mistakes in the medical field are regrettably inevitable. Medical universities use some of the greatest hospitals in this country as interactive classrooms to teach future physicians. A vast number of people are treated in hospitals throughout the United States every day, and of those treated, a number are neglected under the confines of the law. The American public expects infallible care from our health care system and any deviation from perfection may result in legal action. Those wronged seek litigation primarily as a means to punish …

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Unraveling The Mystery Of Wilko V. Swan: American Arbitration Vacatur Law And The Accidental Demise Of Party Autonomy , James M. Gaitis Mar 2012

Unraveling The Mystery Of Wilko V. Swan: American Arbitration Vacatur Law And The Accidental Demise Of Party Autonomy , James M. Gaitis

Pepperdine Dispute Resolution Law Journal

This article begins with a brief description of what the Wilko Court said with respect to the vacatur of arbitral awards and how federal and state appellate courts have construed that language. Traditional American arbitration vacatur law, including but not limited to the cases relied upon by the Wilko Court, are then reviewed in depth such that the Wilko decision and the Wilko Court's choice of language may be placed in context and fully examined. The intent and proper operation of the FAA are then discussed based on both the legislative history of the FAA and other authorities that consistently …

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Revisiting The Promise Of Mediation For Employment Discrimination Claims , Susan K. Hippensteele Feb 2012

Revisiting The Promise Of Mediation For Employment Discrimination Claims , Susan K. Hippensteele

Pepperdine Dispute Resolution Law Journal

This paper generally examines the theory and practice of alternative dispute resolution (ADR) and specifically examines the role mediation has played in propelling rights discourse away from the center of efforts to achieve equal employment opportunity in the United States. It further addresses assumptions regarding individual employee goals in the context of a legal environment in which litigating to achieve rights-based remedies is increasingly difficult for grievants.

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Using Adr Principles To Resolve Environmental Disputes: How Mediated Settlements Have Helped Struggling Cercla Survive , Jamie R. Adams Feb 2012

Using Adr Principles To Resolve Environmental Disputes: How Mediated Settlements Have Helped Struggling Cercla Survive , Jamie R. Adams

Pepperdine Dispute Resolution Law Journal

The goal of this article is to show that the use of Alternative Dispute Resolution ("ADR") principles has made the remediation of numerous hazardous waste sites possible, and has thus enabled the struggling program to continue benefiting Americans everywhere. First, this article provides background information regarding the enactment of the Comprehensive Environmental Clean-up and Liability Act ("CERCLA") and its successor, the Superfund Amendments Reauthorization Act ("SARA"). Second, it explains why using ADR principles, instead of litigation, are vital methods of resolving CERCLA disputes. Third, three examples of major Superfund sites that were successfully cleaned up due to the use of …

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Economical Litigation Agreements: The "Civil Litigation Prenup" Need, Basis, And Enforceability , Daniel B. Winslow, Alexandra Bedell-Healy Feb 2012

Economical Litigation Agreements: The "Civil Litigation Prenup" Need, Basis, And Enforceability , Daniel B. Winslow, Alexandra Bedell-Healy

Pepperdine Dispute Resolution Law Journal

This article identifies the basis and limits of the parties' abilities to define and enforce discovery in an ex ante contract. Despite the deficiencies of litigation, the free, public dispute resolution forum of the civil justice system provides significant value in commercial disputes. That value can be used to maximum mutual advantage only if parties replace the infinite discovery permitted in conventional litigation with the finite discovery contracted in Economical Litigation Agreement (ELA) litigation. This article will help parties to understand the benefit and enforceability of the ELA.

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Keynote Address: Civil Justice At A Crossroads , Rebecca Love Kourlis Feb 2012

Keynote Address: Civil Justice At A Crossroads , Rebecca Love Kourlis

Pepperdine Dispute Resolution Law Journal

I really do believe that, as your title suggests, the civil justice system is at a crossroads and that, as a result, we all have new opportunities and old responsibilities. Four years ago, concerns about skyrocketing costs, unprofessional gamesmanship, and long delays in civil litigation were the stuff of grousing and shoulder shrugs. We all had a level of fatalism or cynicism about our inability to change any of those factors. Now, that is not true. There is a window of opportunity that has opened-a convergence of various forces resulting in a willingness of decision-makers to consider change. As a …

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An Unnecessary Consternation: An Analysis Of The Future Of Eu Arbitration In The Wake Of The West Tankers Decision, Mark G. Materna Feb 2012

An Unnecessary Consternation: An Analysis Of The Future Of Eu Arbitration In The Wake Of The West Tankers Decision, Mark G. Materna

Pepperdine Dispute Resolution Law Journal

This article proposes that, despite the West Tankers decision, parties are still not free to breach the terms of an arbitration agreement. On the contrary, there has been a strong trend by English courts to find ways of preventing parties from breaching such agreements. In short, this article serves to quell the panic and elucidate that the West Tankers decision is not a nail in the coffin, but rather a mechanism to reiterate European courts' dedication to ensuring that arbitration provisions remain a potent force against economic infidelity. Part II of this article will provide a brief background of anti-suit …

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Teaching The Ethical Values Governing Mediator Impartiality Using Short Lectures, Buzz Group Discussions, Video Clips, A Defining Features Matrix, Games, And An Exercise Based On Grievances Filed Against Florida Mediators , Paula M. Young Feb 2012

Teaching The Ethical Values Governing Mediator Impartiality Using Short Lectures, Buzz Group Discussions, Video Clips, A Defining Features Matrix, Games, And An Exercise Based On Grievances Filed Against Florida Mediators , Paula M. Young

Pepperdine Dispute Resolution Law Journal

Teaching Professional Ethics to Lawyers and Mediators Using Active Learning Techniques will serve as the first article in a series of articles I have planned on the use of active learning techniques to teach the core values of mediation: mediator impartiality, party self-determination, confidentiality, and quality of the process/mediator competence. This article is the second article in that series. In Section III, I summarize the first article in the series. In Section IV, I describe the role of mediator impartiality as a core value of the mediation field. I evaluate the definitions of mediation found in several ethics codes as …

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Waiving Rights Goodbye: Class Action Waivers In Arbitration Agreements After Stolt-Nielsen V. Animalfeeds International , Diana M. Link, Richard A. Bales Feb 2012

Waiving Rights Goodbye: Class Action Waivers In Arbitration Agreements After Stolt-Nielsen V. Animalfeeds International , Diana M. Link, Richard A. Bales

Pepperdine Dispute Resolution Law Journal

This article first argues that to determine the enforceability of a class action waiver, courts should take a "totality of the circumstances" approach rather than adopting a bright-line rule. A set of defined factors that also allows courts to consider real-world issues facing litigants will provide a substantial framework for courts to interpret this area of the law and will lead to more consistent and well-reasoned outcomes in the future. These factors include: the probable size of each class member's individual recovery, the potential for retaliation against class members, the awareness of potential class members that their rights have been …

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The Assault Of Jamie Leigh Jones: How One Woman's Horror Story Is Changing Arbitration In America, Jeffrey Adams Feb 2012

The Assault Of Jamie Leigh Jones: How One Woman's Horror Story Is Changing Arbitration In America, Jeffrey Adams

Pepperdine Dispute Resolution Law Journal

This article examines Jones v. Halliburton Co., the "Al Franken Amendment" to the 2010 U.S. Defense Department Budget (Franken Amendment) that was created in response to Jones, and the impact that both could have on mandatory arbitration clauses in employment contracts in the future. Part II recounts the troubling events that led to Jones and the inclusion of the Franken Amendment in the 2010 Defense Department Budget. Part III details the arguments made for and against the inclusion of the Franken Amendment. Part IV analyzes the impact that the Franken Amendment could have on mandatory arbitration clauses in contacts in …

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Collaborative Practice's Radical Possibilities For The Legal Profession:"[Two Lawyers And Two Clients] For The Situation" , Robert F. Cochran Jr. Feb 2012

Collaborative Practice's Radical Possibilities For The Legal Profession:"[Two Lawyers And Two Clients] For The Situation" , Robert F. Cochran Jr.

Pepperdine Dispute Resolution Law Journal

This article will consider the two dramatic changes that collaborative practice [CP] brings to law practice: a change in the mental attitude of lawyers and clients toward the conflict and a change in lawyers' counseling techniques. Part II defines CP and compares it to traditional negotiation-pending-litigation. Part III considers the change in attorney and client mental attitudes wrought by CP, where both lawyers and clients take responsibility for identifying a resolution that will meet the needs of all of the parties. Part IV considers the type of client-counseling that is often generated by CP-lawyers in CP may strongly encourage clients …

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Veterans Court: Towards The Implementation Of A Collaborative Justice Model In San Luis Obispo County, Daniel Smee Jan 2012

Veterans Court: Towards The Implementation Of A Collaborative Justice Model In San Luis Obispo County, Daniel Smee

Continuing Education (CAPSTONE)

Veterans’ treatment courts represent an emerging trend across the country of collaborative justice designed to deal with criminal justice issues stemming from problems linked to military service. This approach places the veteran in VA (Veterans Affairs) treatment programs as a diversion from incarceration. There are few such courts in California (nine) largely in non-rural counties. This study investigated two rural counties, Tulare and Santa Barbara with Veterans courts to develop a model for such a court in San Luis Obispo County. Early recidivism data at the one-year point for Tulare County showed a zero percent rate of criminal behavior (12 …

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The Ghost That Slayed The Mandate, Kevin C. Walsh Jan 2012

The Ghost That Slayed The Mandate, Kevin C. Walsh

Law Faculty Publications

Virginia v. Sebelius is a federal lawsuit in which Virginia has challenged President Obama's signature legislative initiative of health care reform. Virginia has sought declaratory and injunctive relief to vindicate a state statute declaring that no Virginia resident shall be required to buy health insurance. To defend this state law from the preemptive effect of federal law, Virginia has contended that the federal legislation's individual mandate to buy health insurance is unconstitutional. Virginia's lawsuit has been one of the most closely followed and politically salient federal cases in recent times. Yet the very features of the case that have contributed …

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Salinger V. Colting, James Marshall Spector Jan 2012

Salinger V. Colting, James Marshall Spector

NYLS Law Review

No abstract provided.

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Suing Courts, Frederic Bloom, Christopher Serkin Jan 2012

Suing Courts, Frederic Bloom, Christopher Serkin

Publications

This Article argues for a new and unexpected mechanism of judicial accountability: suing courts. Current models of court accountability focus almost entirely on correcting legal errors. A suit against the court would concentrate on something different--on providing transition relief, by way of legal remedy, to those bearing the heaviest burdens of desirable legal change. These suits may at first appear impossible. But suing courts is conceptually rational and mechanically reasonable, a tool that eases legal transitions while navigating the many hurdles modern doctrine puts in the way. This Article sets out the first complete account of how, where, and why …

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The Federal Common Law Of Vicarious Fiduciary Liability Under Erisa, Colleen E. Medill Feb 2011

The Federal Common Law Of Vicarious Fiduciary Liability Under Erisa, Colleen E. Medill

University of Michigan Journal of Law Reform

The Employee Retirement Income Security Act of 1974 ("ERISA"), the federal law that regulates employer-sponsored benefit plans, has a rich history of judiciallycreated federal common law. This Article explores the theoretical, policy, statutory, and stare decisis grounds for the development of another area offederal common law under ERISA-the incorporation of respondeat superior liability principles to impose ERISA fiduciary liability ("vicarious fiduciary liability") upon a corporation for the fiduciary activities of its employees or agents. The Article proposes that the federal courts should adopt a federal common law rule of vicarious fiduciary liability under ERISA based on the traditional scope of …

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People V. Guardino: Examined On Appeal In People V. Hecker, Luna Droubi Jan 2011

People V. Guardino: Examined On Appeal In People V. Hecker, Luna Droubi

NYLS Law Review

No abstract provided.

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Bayer Schering Pharma Ag V. Barr Laboratories, Inc., Joshua Zarabi Jan 2011

Bayer Schering Pharma Ag V. Barr Laboratories, Inc., Joshua Zarabi

NYLS Law Review

No abstract provided.

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Law, Politics, And The Erosion Of Legitimacy In The Delaware Courts, Kent Greenfield Jan 2011

Law, Politics, And The Erosion Of Legitimacy In The Delaware Courts, Kent Greenfield

NYLS Law Review

No abstract provided.

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American Academy Of Religion V. Napolitano, Margaret Laufman Jan 2011

American Academy Of Religion V. Napolitano, Margaret Laufman

NYLS Law Review

No abstract provided.

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A Lesson From The Holocaust Restitution Movement For Armenians: Generate Momentum To Secure Restitution, Vartges Saroyan Jan 2011

A Lesson From The Holocaust Restitution Movement For Armenians: Generate Momentum To Secure Restitution, Vartges Saroyan

Cardozo Journal of Conflict Resolution

This Note proceeds in five parts. Part I provides a historical background of the events prior to and during the Armenian Genocide, and the claims arising out of the Genocide. Part II discusses the status of Genocide restitution and the roadblocks that continue to prevent widespread recovery. Part III explains the timeline of the Holocaust restitution movement and how advocates for restitution were finally able to have some success. Part IV proposes that Genocide-era claims be sought not only by filing lawsuits, but also by creating momentum through negotiation and other principles of ADR. Part V concludes by reiterating the …

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After The Ecj's West Tankers: The Clash Of Civilizations On The Issue Of An Anti-Suit Injunction, Grace Gunah Kim Jan 2011

After The Ecj's West Tankers: The Clash Of Civilizations On The Issue Of An Anti-Suit Injunction, Grace Gunah Kim

Cardozo Journal of Conflict Resolution

This Note argues that the ECJ's West Tankers decision to ban an anti-suit injunction in Europe, coupled with the recent European Commission's reform proposals to govern arbitration within the jurisdictional framework of the Brussels Regulation No. 44/ 2001 ("Brussels Regulation"), directly clash with the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention") and practically amount to a blanket rule that bars English courts from upholding arbitration agreements.

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Respondent Superior As An Affirmative Defense: How Employers Immunize Themselves From Direct Negligence Claims, J. J. Burns Jan 2011

Respondent Superior As An Affirmative Defense: How Employers Immunize Themselves From Direct Negligence Claims, J. J. Burns

Michigan Law Review

Most courts hold that where a defendant employer admits that it is vicariously liable for its employee's negligence, a plaintiff's additional claims of negligent entrustment, hiring, retention, supervision, and training must be dismissed. Generally, courts apply this rule based on the logic that allowing a plaintiff's additional claims adds no potential liability beyond that which has already been admitted. Furthermore, since the additional claims merely allege a redundant theory of recovery once a respondeat superior admission has been made, the prejudicial evidence of an employee's prior bad acts which often accompanies direct negligence claims against employers can be excluded without …

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Presumed Guilty Until Proven Innocent: The Burden Of Proof In Wrongful Conviction Claims Under State Compensation Statutes, Daniel S. Kahn Oct 2010

Presumed Guilty Until Proven Innocent: The Burden Of Proof In Wrongful Conviction Claims Under State Compensation Statutes, Daniel S. Kahn

University of Michigan Journal of Law Reform

Despite significant efforts to uncover and prevent wrongful convictions, little attention has been paid to the compensation of wrongfully convicted individuals once they are released from prison. State compensation statutes offer the best path to redress because they do not require the claimant to prove that the state was at fault for the wrongful conviction and because they are not susceptible to the same political influences as other methods of compensation. However, even under compensation statutes, too many meritorious claims are dismissed, settled for far too little, or never brought in the first place. After examining the current statutory framework, …

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Decriminalizing Students With Disabilities, Dean Hill Rivkin Jan 2010

Decriminalizing Students With Disabilities, Dean Hill Rivkin

NYLS Law Review

No abstract provided.

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