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Articles 1 - 30 of 47
Full-Text Articles in Legal Remedies
Philosophical Counselling And Mediation Theory And Practice: Exploring A Pathway To Justice, Nayha Acharya
Philosophical Counselling And Mediation Theory And Practice: Exploring A Pathway To Justice, Nayha Acharya
Articles, Book Chapters, & Popular Press
This paper will demonstrate how philosophical counselling would invaluably contribute to the arena of conflict resolution via mediation and civil justice generally. Mediation is a conflict resolution process that involves a third party who facilitates disputants in arriving at a self-determined resolution. This process is being incorporated into civil justice systems globally, but how mediation should be conducted to achieve truly just outcomes needs immediate and thoughtful attention. At its best, mediation empowers parties to co-create a just and fair resolution to their conflict through a dialogical exploration of their interests, needs, and relevant norms and values. This is dramatically …
Exploring The Role Of Mandatory Mediation In Civil Justice, Nayha Acharya
Exploring The Role Of Mandatory Mediation In Civil Justice, Nayha Acharya
Articles, Book Chapters, & Popular Press
In this article, I offer a framing of the debates around mandatory mediation that rest on the premise that a legitimate civil justice process depends on unhindered access to an adjudicative system, which must be recognized as a procedural right. This is a keystone of the rule of law, and a valid legal system that deserves the authority that it asserts is contingent on this. My central thesis is that requiring mediation (which is independent of the rule of law) before allowing full access to adjudication compromises the procedural rights of legal subjects, and the rule of law principle. Such …
Taming Blockbuster Punitive Damages Awards, W. Kip Viscusi, Benjamin J. Mcmichael
Taming Blockbuster Punitive Damages Awards, W. Kip Viscusi, Benjamin J. Mcmichael
Vanderbilt Law School Faculty Publications
Blockbuster punitive damages awards, i.e., those awards exceeding $100 million, attract attention based on their sheer size. While there have been fewer such awards in the last decade, they remain an important presence in the legal landscape. Taking notice of these and other large punitive damages awards, courts and state policymakers have taken steps to both constrain them and render them more predictable. States have enacted punitive damages caps to limit the amount of punitive damages courts can award, but these caps often contain a number of exceptions and apply only to damages under a specific state’s law. At a …
The Politics Of Access: Examining Concerted State/Private Enforcement Solutions To Class Action Bans, Myriam E. Gilles
The Politics Of Access: Examining Concerted State/Private Enforcement Solutions To Class Action Bans, Myriam E. Gilles
Faculty Articles
Procedural and substantive constraints on the ability of ordinary people to access the civil justice system have become all too commonplace. The “justice gap” owes much to cuts in funding for legal aid and court administration, heightened pleading standards, ever-rising costs of discovery, increasingly restrictive views on standing to sue, and the co-opting of small claims court by businesses seeking to collect debts, among other obstacles in the path to the courthouse. But the most consequential impediment, surely, is the enforcement of mandatory arbitration clauses with class action bans, which bar consumers and employees from bringing or being represented in …
Empowering Individual Plaintiffs, Alex Stein, Gideon Parchomovsky
Empowering Individual Plaintiffs, Alex Stein, Gideon Parchomovsky
All Faculty Scholarship
The individual plaintiff plays a critical—yet, underappreciated—role in our legal system. Only lawsuits that are brought by individual plaintiffs allow the law to achieve the twin goals of efficiency and fairness. The ability of individual plaintiffs to seek justice against those who wronged them deters wrongdoing, ex ante, and in those cases in which a wrong has been committed nevertheless, it guarantees the payment of compensation, ex post. No other form of litigation, including class actions and criminal prosecutions, or even compensation funds, can accomplish the same result. Yet, as we show in this Essay, in many key sectors of …
Us-Cool Retaliation: The Wto’S Article 22.6 Arbitration, Chad P. Bown, Rachel Brewster
Us-Cool Retaliation: The Wto’S Article 22.6 Arbitration, Chad P. Bown, Rachel Brewster
Faculty Scholarship
This paper examines the World Trade Organization’s Article 22.6 arbitration report on the dispute over the United States’ country of origin labeling (US–COOL) regulation for meat products. At prior phases of the legal process, a WTO Panel and the Appellate Body had sided with Canada and Mexico by finding that the US regulation had negatively affected their exports of livestock – cattle and hogs – to the US market. The arbitrators authorized Canada and Mexico to retaliate by over $1 billion against US exports – the second largest authorized retaliation on record and only the twelfth WTO dispute to reach …
The Role Of Language Interpretation In Providing A Quality Mediation Process, Alexandra Carter, Shawn Watts
The Role Of Language Interpretation In Providing A Quality Mediation Process, Alexandra Carter, Shawn Watts
Faculty Scholarship
This paper focuses on the role of language in mediation and the challenges multiple language fluencies bring to the practice. Beginning with a discussion of the process and ethics of mediation as a form of alternative dispute resolution, as distinct from other forms of dispute resolution including arbitration, the paper shifts to consider the importance of language. Language, and more specifically interpretation, plays a central role in the integrity of the mediation process and the quality of its outcomes. Each stage of mediation requires the participants and the mediator understand one another to ensure effective communication and a quality process. …
Individualized Injunctions And No-Modification Terms: Challenging "Anti-Reform" Provisions In Arbitration Clauses, Myriam E. Gilles
Individualized Injunctions And No-Modification Terms: Challenging "Anti-Reform" Provisions In Arbitration Clauses, Myriam E. Gilles
Faculty Articles
The Supreme Court’s recent decisions in AT&T Mobility v. Concepcion and American Express v. Italian Colors have considered only whether class actions for monetary damages may be barred by arbitration clauses requiring individual adjudication. The Justices have not examined the enforceability of arbitration clauses or arbitral rules which explicitly prohibit claimants from seeking or arbitrators from granting broad injunctive relief in an individual dispute. I term these "anti-reform" provisions because they broadly prohibit an individual arbitral claimant from seeking to end a practice, change a rule, or enjoin an act that causes injury to itself and to similarly-situated non-parties. This …
Screening Out Innovation: The Merits Of Meritless Litigation, Alexander A. Reinert
Screening Out Innovation: The Merits Of Meritless Litigation, Alexander A. Reinert
Faculty Articles
Courts and legislatures often conflate merit-less and frivolous cases when balancing the desire to keep courthouse doors open to novel or unlikely claims against the concern that entertaining ultimately unsuccessful litigation will prove too costly for courts and defendants. Recently, significant procedural and substantive barriers to civil litigation have been informed by judicial and legislative assumptions about the costs of entertaining merit-less and frivolous litigation. The prevailing wisdom is that eliminating merit-less and frivolous claims as early in a case’s trajectory as possible will focus scarce resources on the truly meritorious cases, thereby ensuring that available remedies are properly distributed …
Future Claimants And The Quest For Global Peace, Rhonda Wasserman
Future Claimants And The Quest For Global Peace, Rhonda Wasserman
Articles
n the mass tort context, the defendant typically seeks to resolve all of the claims against it in one fell swoop. But the defendant’s interest in global peace is often unattainable in cases involving future claimants – those individuals who have already been exposed to a toxic material or defective product, but whose injuries have not yet manifested sufficiently to support a claim or motivate them to pursue it. The class action vehicle cannot be used because it is impossible to provide reasonable notice and adequate representation to future claimants. Likewise, non-class aggregate settlements cannot be deployed because future claimants …
Supplying Compliance: Why And When The United States Complies With Wto Rulings, Rachel Brewster, Adam Chilton
Supplying Compliance: Why And When The United States Complies With Wto Rulings, Rachel Brewster, Adam Chilton
Faculty Scholarship
In studies of compliance with international law, the focus is usually on the “demand side” – that is, how to increase the pressure on the state to comply. Less attention has been paid, however, to the consequences of the “supply side” – who within the state is responsible for the compliance. This Article is the first study to systematically address the issue of how different actors within the United States government alter national policy in response to the violations of international law. The Article does so by examining cases initiated under the World Trade Organization (WTO) Dispute Settlement Understanding (DSU). …
Pricing Compliance: When Formal Remedies Displace Reputational Sanctions, Rachel Brewster
Pricing Compliance: When Formal Remedies Displace Reputational Sanctions, Rachel Brewster
Faculty Scholarship
The conventional wisdom in international law is that dispute resolution institutions sharpen the reputational costs to states. This article challenges this understanding by examining how the inclusion of dispute resolution tribunals and remedy regimes can alter reputational analysis by shifting the audience¹s understanding of how mandatory a treaty's substantive obligations are. Drawing on the distinction between prices and sanctions, this article contests the assumption that the introduction of a remedy regime in international agreements will regularly increase compliance with the treaty¹s substantive terms. Instead, some remedy regimes may 'price' deviations from the treaty¹s terms and thereby facilitate breaches of the …
Access-To-Justice Analysis On A Due Process Platform, Ronald A. Brand
Access-To-Justice Analysis On A Due Process Platform, Ronald A. Brand
Articles
In their article, Forum Non Conveniens and The Enforcement of Foreign Judgments, Christopher Whytock and Cassandra Burke Robertson provide a wonderful ride through the landscape of the law of both forum non convenience and judgments recognition and enforcement. They explain doctrinal development and current case law clearly and efficiently, in a manner that educates, but does not overburden, the reader. Based upon that explanation, they then provide an analysis of both areas of the law and offer suggestions for change. Those suggestions, they tell us, are necessary to close the “transnational access-to-justice gap” that results from apparent differences between rules …
Through The Looking Glass: Understanding Social Science Norms For Analyzing International Investment Law, Susan Franck, Calvin Garbin, Jenna Perkins
Through The Looking Glass: Understanding Social Science Norms For Analyzing International Investment Law, Susan Franck, Calvin Garbin, Jenna Perkins
Articles in Law Reviews & Other Academic Journals
When social science methods are being employed in a new context — such as the assessment of international investment law — there is value in exploring the underlying assumptions and normative baselines of the enterprise. This article and response address critiques about the methodology of an article in the Harvard International Law Journal by: (1) describing the value of social science in international investment law; (2) replicating the research using new methodologies to conduct more than 20 new tests that were still unable to ascertain the existence of a reliable relationship between development status and outcomes on the basis of …
Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux
Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux
Publications
No abstract provided.
Punitive Damages In Securities Arbitration: An Empirical Study, Stephen Choi, Theodore Eisenberg
Punitive Damages In Securities Arbitration: An Empirical Study, Stephen Choi, Theodore Eisenberg
Cornell Law Faculty Publications
This article provides the first empirical analysis of punitive damages in securities arbitrations. Using a data set of over 6,800 securities arbitration awards, we find that claimants prevailed in 48.9 percent of arbitrations and that 9.1 percent of those claimant victories included a punitive damages award. The existence of a punitive damages award was associated with claims that suggested egregious misbehavior and with claims that provided higher compensatory awards. The pattern of punitive awards is more consistent with a traditional view of punitive damages that incorporates a retributive component than with a law and economics emphasis on efficient deterrence. We …
The Story Of Bivens V. Six Unknown-Named Agents Of The Federal Bureau Of Narcotics, James E. Pfander
The Story Of Bivens V. Six Unknown-Named Agents Of The Federal Bureau Of Narcotics, James E. Pfander
Faculty Working Papers
In Bivens v. Six Unknown-Named Agents of the Federal Bureau of Narcotics, the Supreme Court recognized the right of an individual to sue federal government officials for a violation of constitutional rights. Drawing on interviews with some of the participants, including Webster Bivens himself and one of the agents who conducted the search, this chapter in the forthcoming book Federal Courts' Stories describes the events that led to the litigation and the complex array of factors that informed the Court's approach to the case. After placing the Bivens decision in context, the chapter evaluates the competing narratives that have grown …
The Sounds Of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration In Cases Of Contractual Silence Or Ambiguity, S. I. Strong
Faculty Articles
The Article's overall aim is to determine the international enforceability of international class awards in cases in which the arbitration agreement is silent or ambiguous as to class treatment. Part I therefore describes the current consensus on class arbitration in the United States to lay the groundwork for further discussion. This Part also describes the incidence of class arbitration in other domestic contexts, showing that class arbitration is not as "uniquely American" as opponents have claimed. Part I continues with an overview of international class arbitration to date and identifies the likelihood of international class arbitration's expansion in the future. …
Rethinking Bivens: Legitimacy And Constitutional Adjudication, James E. Pfander, David Baltmanis
Rethinking Bivens: Legitimacy And Constitutional Adjudication, James E. Pfander, David Baltmanis
Faculty Working Papers
The Supreme Court's decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics provides an uncertain framework for the enforcement of constitutional rights against the federal government. Rather than recognizing a federal common law right of action for use in every case, the Court views itself as devising actions on a case-by-case basis in light of a range of factors. Critics on all sides question the Court's approach, doubting either its power to fashion federal common law or the tendency of its case-by-case analysis to create gaps in constitutional enforcement. Particularly when compared with actions under …
Outward Bound To Other Cultures: Seven Guidelines For U.S. Dispute Resolution Trainers, Harold I. Abramson
Outward Bound To Other Cultures: Seven Guidelines For U.S. Dispute Resolution Trainers, Harold I. Abramson
Scholarly Works
This article was inspired by the opportunity to observe a two day negotiation training program' put together by Hamline University School of Law in Rome. It was called "Developing 'Second Generation' Global Negotiation Education." The trainers conducted a high level program for around thirty sophisticated professionals. And over forty scholars observed the training and then spent another two days discussing what was observed. Based on that experience as an observer and my own experience teaching and training abroad, along with additional research, I have identified seven guidelines for U.S. trainers. These guidelines should help trainers reduce any cultural mishaps, prepare …
The Logic Of Legal Remedies And The Relative Weight Of Norms: Assessing The Public Interest In The Tort Reform Debate, Irma S. Russell
The Logic Of Legal Remedies And The Relative Weight Of Norms: Assessing The Public Interest In The Tort Reform Debate, Irma S. Russell
Faculty Works
This article explores the background principles of consistency and proportionality in legal rules and remedies. It identifies the relative strength of the interests of individuals and the public as the key to justifying the remedies available in different areas of law. Understanding the normative guidance of particular legal rules reveals the strength of society's judgment of the interests at stake in different remedies. For example, the principle of consistency generally means that a legal doctrine applying an objective measure of one's interest must apply a like-kind measure to all interests considered, absent some explicit and justifiable basis for different formulations. …
Consequences Of Power, Tamara Relis
Consequences Of Power, Tamara Relis
Scholarly Works
This Article challenges a basic premise that litigants and their attorneys broadly understand and desire similar things from litigation-track mediation processes. In providing new empirical research from medical malpractice cases, I offer disconcerting evidence of the surprising degree to which perceptions and meanings ascribed to these litigation-track processes are not only diverse, but frequently contradictory. I demonstrate that notwithstanding their different allegiances, lawyers on all sides of cases have correspondingly similar understandings of the meaning and purpose of litigation-track mediations. At the same time, I show how plaintiffs and defendants have the same understandings and visions of what mediation is …
Solving The Digital Piracy Puzzle: Disaggregating Fair Use From The Dmca's Anti-Device Provisions, Jacqueline D. Lipton
Solving The Digital Piracy Puzzle: Disaggregating Fair Use From The Dmca's Anti-Device Provisions, Jacqueline D. Lipton
Articles
Copyright law has always involved balancing creative pursuits against innovations in copying, distribution and, more recently, encryption technologies. A significant problem for copyright law is that many such technologies can be utilized for both socially useful and socially harmful purposes. It is difficult to regulate such technologies in a way that prevents social harms while at the same time facilitating social benefits. The most recent example of this dynamic is evident in the 2005 United States Supreme Court decision in MGM v Grokster - dealing with digital file-sharing technologies. This article draws from the file sharing debate in considering another …
Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman
Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman
Rutgers Law School (Newark) Faculty Papers
In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …
Grief, Procedure And Justice: The September 11th Victim Compensation Fund, Elizabeth M. Schneider
Grief, Procedure And Justice: The September 11th Victim Compensation Fund, Elizabeth M. Schneider
Faculty Scholarship
No abstract provided.
Punitive Damages: How Jurors Fail To Promote Efficiency, W. Kip Viscusi
Punitive Damages: How Jurors Fail To Promote Efficiency, W. Kip Viscusi
Vanderbilt Law School Faculty Publications
Evidence of corporate risk-cost balancing often leads to inefficient punitive damages awards, suggesting that jurors fail to base their decision making on principles of economic efficiency. In this Article, Professor Viscusi presents the results of two experiments regarding jury behavior and punitive damages. In the first experiment, Professor Viscusi found that mock jurors punish companies for balancing risk against cost, although award levels vary depending on how the economic analysis is presented at trial. The results of the second experiment suggested that mock jurors are unwilling or unable to follow a set of model jury instructions designed to generate efficient …
The Liability Of International Arbitrators: A Comparative Analysis And Proposal For Qualified Immunity, Susan Franck
The Liability Of International Arbitrators: A Comparative Analysis And Proposal For Qualified Immunity, Susan Franck
Articles in Law Reviews & Other Academic Journals
With the advent of the global economy and the increasing number of international commercial transactions, arbitration has become an important dispute resolution option. Arbitration is traditionally extolled because it helps to resolve commercial disputes economically, confidentially, and finally within a neutral forum.' Additionally, unlike national court judgments, arbitration provides an internationally recognized method for enforcing awards.' As a result of these benefits, arbitration is now the preferred dispute resolution mechanism for international commercial disagreements. Unfortunately, because of perceived misconduct by arbitrators and the risk of party manipulation, the arbitration process has come under increasing attack through civil actions against arbitrators.
The Interpretation Of The Remedial Provisions Of The Cisg, Evelina Wilhelmina Innocentia Visser
The Interpretation Of The Remedial Provisions Of The Cisg, Evelina Wilhelmina Innocentia Visser
LLM Theses and Essays
The drafting process of the most successful international uniform law of the last decades, the 1980 United Nations Convention on the International Sale of Goods (CISG) reflected that in order to become a set of "well-balanced subsidiary rules," international uniform must be drafted and implemented carefully. It is essential that an international uniform law is adapted to diverse cultures. The different needs and demands of the varied socio-economic systems and legal structures, perceptions, procedures, and cultures of the distinct legal systems of this world are a main and omnipresent consideration and must be capable of absorbing the unified law. Either …
Transcript Of The Florida Tobacco Litigation Symposium - Fact, Law, Policy And Significance, Jeffrey W. Stempel, Jean R. Sternlight
Transcript Of The Florida Tobacco Litigation Symposium - Fact, Law, Policy And Significance, Jeffrey W. Stempel, Jean R. Sternlight
Scholarly Works
On November 17, 1997, Professors Jeffrey W. Stempel and Jean R. Sternlight joined a group of colleagues specializing in litigation at the Florida State University College of Law Review's Symposium on the tobacco litigation settlement reached between the State of Florida and five leading tobacco manufacturers that same year. The professors appeared on a panel to discuss the the relationship among the legal system, public health concerns, and tobacco. This is a transcript of those preceedings.
Psychology, Economics, And Settlement: A New Look At The Role Of The Lawyer, Chris Guthrie, Russell Korobkin
Psychology, Economics, And Settlement: A New Look At The Role Of The Lawyer, Chris Guthrie, Russell Korobkin
Vanderbilt Law School Faculty Publications
Law and economics models of litigation settlement, based on the behavioral assumptions of rational choice theory, ignore the many psychological reasons that settlement negotiations can fail, yet they accurately predict that vast majority of lawsuits will settle short of formal adjudication. What explains this? We present experimental data that suggests lawyers might evaluate the settlement vs. adjudication decision from a perspective more closely akin to "rational choice theory" than will non-lawyers and, consequently, increase the observed level of settlement. We then evaluate whether the hypothesized difference between lawyers and non-lawyers is likely to lead to more efficient dispute resolution, concluding …