Legal Remedies Commons^™

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

The Hague Convention On Choice Of Court Agreements: The United States Joins The Judgment Enforcement Band, Matthew H. Adler, Michele Crimaldi Zarychta

Northwestern Journal of International Law & Business

In 2005, the United States signed a treaty that, if ratified, would be the United States' first-ever international agreement on judgment enforcement. The treaty provides that (a) where two commercial parties elect to resolve disputes between them in a particular forum, and (b) a judgment issues from that forum, then (c) all member states must enforce the judgment. It is a document driven by party autonomy; absent a choice of court agreement (in U.S. parlance, a choice of forum clause), the treaty has no meaning or applicability. The treaty's signing was the end of a rigorous journey. The United States …

Language, Morals, And Conceptual Frameworks In Dispute Resolution: Establishing, Employing, And Managing The Logos, Michael T. Wawrzycki

Cardozo Journal of Conflict Resolution

Any lawyer knows that words and language are important. A single word can derail a painstakingly written contract; the characterization of a would-be killer as a victim framed by racist police officers, rather than a jealous husband, can change the outcome of a case. Yet like many maxims, this important lesson is often forgotten when one is not confronted with the direct principles of words and language. Moreover, even most lawyers do not fully understand how to appropriately utilize the language tools that can change outcomes: myopically focusing on specific issues or characterizations rather than the overall conceptual frames.

Mandatory Mediation: The Extra Dose Needed To Cure The Medical Malpractice Crisis, Florence Yee

Cardozo Journal of Conflict Resolution

This Note discusses the advantages and drawbacks of mandating participation in mediation in medical malpractice disputes. Part II of this Note reviews the extent of the current medical malpractice crisis. Part III examines litigation as the traditional means of resolving medical malpractice disputes and suggests that litigation's weaknesses eclipse any of its strengths. Part IV evaluates the lingering challenges to arbitration, accounting for its ineffectiveness in resolving medical malpractice disputes. Part V analyzes why mediation may be the better alternative to both litigation and arbitration in resolving such disputes, and how its hurdles can be best surmounted by mandatory mediation. …

Improving The Construction And Litigation Resolution Process: The 2005 Amendments To The Washington Condominium Act Are A Win-Win For Homeowners And Developers, Mark F. O'Donnell, David E. Chawes

Seattle University Law Review

On August 1, 2005, significant amendments to the Washington Condominium Act (WCA) became effective. These amendments were intended to substantially reduce water infiltration in multiunit residential buildings and to simplify the condominium construction dispute resolution process. The heart of the amendments is the implementation of alternative dispute resolution (ADR) procedures, as well as fee-shiftingprovisions which require the non-prevailing party to pay the attorney fees and costs of the prevailing party. A decade of lawsuits brought under the WCA by condominium owners associations against builders and developers, and in turn by builders against subcontractors, alleging defects in the ability of the …

Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins

ExpressO

This LL.M. Intercultural Human Rights thesis (May, 2005), awarded the best student paper prize for 2005 by the Institute of Policy Sciences at Yale University (in October, 2005), after analysing past and curent issues regarding the culture wars controversy of "reparations", proposes a specific process for establishing Truth and Reconciliation regarding the legacy of slavery in the United States. The proposal recommends commissions in each Federal judicial district under the supervision of a U.S. Slavery Justice and Reconciliation Commission (USSJRC), calling for "America's 21st Century Contract with Africa and African-Americans".

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Finding The Contract In Contracts For Law, Forum, And Arbitration, William John Woodward

ExpressO

Contract provisions specifying the law or forum (either judicial or arbitration) have begun appearing in litigated cases, as businesses have pressed many courts for their enforcement against consumers. In at least some of the cases, enforcement of a choice of law provision results in the displacement of the consumer’s home state protection by the lesser consumer protection of the State of the form drafter’s choosing. This phenomenon raises serious problems of federalism and local control of consumer protection. But while considerable scholarly attention has been lavished on so-called “mandatory arbitration” in this context, much less has attempted to improve our …

Investor Protection And Foreign Investment Under Nafta Chapter 11: Prospects For The Western Hemisphere Under Chapter 17 Of The Ftaa, Jacqueline Granados

Cardozo Journal of International and Comparative Law

The article argues that adopting NAFTA-like investor protection provisions in the Free Trade Area of the Americas (FTAA) could significantly increase foreign direct investment (FDI) across the Americas, benefiting both investors and host countries. It emphasizes the importance of balancing investor rights with public interest considerations, such as environmental regulation, and highlights the need for clear definitions and procedural safeguards in the FTAA's investment chapter. The article also underscores the role of legal reforms and policy liberalization in Latin American and Caribbean countries (LAC) to maximize the agreement's potential benefits.

Beyond Reparations: An American Indian Theory Of Justice, William C. Bradford

ExpressO

The number of states, corporations, and religious groups formally disowning past records of egregious human injustice is mushrooming. Although the Age of Apology is a global phenomenon, the question of reparations—a tort-based mode of redress whereby a wrongdoing group accepts legal responsibility and compensates victims for the damage it inflicted upon them—likely consumes more energy, emotion, and resources in the U.S. than in any other jurisdiction. Since the final year of the Cold War, the U.S. and its political subdivisions have apologized or paid compensation to Japanese-American internees, native Hawaiians, civilians killed in the Korean War, and African American victims …

The Merger Of Law And Mediation: Lessons From Equity Jurisprudence And Roscoe Pound, Jacqueline M. Nolan-Haley

Cardozo Journal of Conflict Resolution

Almost one hundred years ago, Roscoe Pound' warned about the decline of equity jurisprudence in the American legal system. He called this phenomenon the "decadence of equity."' Though Pound offered several causes for this decline, what we know today as "institutionalization" in the court system was the primary suspect. "The very thing that made equity a system must, in the end, prove fatal to it. In the very act of becoming a system, it becomes legalized, and in becoming merely a competing system of law insures its ultimate downfall." While Pound acknowledged that he saw some good from the "refinements" …

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

Faculty Scholarship

No abstract provided.

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

Scholarly Articles in Law Reviews & 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

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

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

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 …

Whose Dispute Is It Anyway? A Philosophical And Democratic Defense Of Settlement (In Some Cases), Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

I have often thought myself ill-suited to my chosen profession. I love to argue, but I am often too quick to say both, "yes, I see your point" and concede something to the "other side," and to say of my own arguments, "yes, but, it's not that simple." In short, I have trouble with polarized argument, debate, and the adversarialism that characterizes much of our work. Where others see black and white, I often see not just the "grey" but the purple and red-in short, the complexity of human issues that appear before the law for resolution.

In the last …

Practice And Procedure Before The Growth Planning Hearings Boards, Wm. H. Nielsen, M. Peter Philley, Chris Smith Towne

Seattle University Law Review

In 1990, the Washington State Legislature took the first significant step toward growth management when it enacted the Washington Growth Management Act (GMA). The GMA directs cities and counties to protect natural features and to begin planning to accommodate anticipated population increases. The legislature examined the recommendation of the Growth Strategies Commission' to create an independent dispute resolution system to resolve conflicts under the GMA. The Commission recommended the use of a panel of independent arbitrators with mediation and binding arbitration. Appeals would be limited to the Washington State Court of Appeals only on constitutional and procedural issues. The legislature …

Understanding The Malpractice Wars, Thomas B. Metzloff

Faculty Scholarship

No abstract provided.

Deferral To Arbitration And Use Of External Law In Arbitration, Theodore J. St. Antoine

Articles

proper definition of the appropriate roles of arbitrators, administrative agencies and the courts depends in great part on the notion that, generally speaking, in labor relations, the interpretation and application of contracts is for arbitrators, and the interpretation and application of statutes is for the administrative agencies and the courts. Arbitrators deal primarily with contract rights and administrative agencies, like the NLRB and the courts, deal primarily with statutory rights. If that distinction is maintained, the problems of deferral to arbitration and the use of external law in arbitration can be more easily resolved.

Remedies For Breach Of Contract Under The Uniform Commercial Code, The General Conditions Of Delivery Of Goods Of The Council For Mutual Economic Assistance And The United Nations Convention On Contracts For The International Sale Of Goods, Hasan T. Choudhury

LLM Theses and Essays

This thesis attempts to examine and compare an important component of any law of contract for the sale of goods, namely, the remedies available to an aggrieved party following a breach of contract. The first part of the thesis deals with the historical background of the uniform laws, their scope and specific characteristics. The following chapters examine the status, role and significance of the two major remedies - the damages and specific performance, in the major legal systems and the uniform laws. In addition, it compares the remaining remedial provisions and concludes that, although the major legal systems of the …

Punitive Damages In Arbitration, 21 J. Marshall L. Rev. 21 (1987), Stephen P. Bedell

UIC Law Review

No abstract provided.

Midgett V. Sackett-Chicago, Inc.: The Short-Sighted Use Of State Remedies To Protect Union Employees From Retaliatory Discharge, 18 J. Marshall L. Rev. 565 (1985), Benjamin P. Hyink, Lawrence M. Liebman

UIC Law Review

No abstract provided.

Interstate Gas Pipeline Ratemaking And Contract Implications, Henry E. Brown

Natural Gas Symposium: Contract Solutions for the Future of Regulatory Environment (March 24-25)

61 pages.

Contains references.

Contains 7 attachments.

Creditors’ Rights Involved In The Production And Sale Of Natural Gas, William M. Schultz

Natural Gas Symposium: Contract Solutions for the Future of Regulatory Environment (March 24-25)

101 pages (includes forms).

Contains 6 attachments.

Section 311 And 312 Of The Natural Gas Policy Act Of 1978 And Hinshaw Pipelines, Lauren Eaton

Natural Gas Symposium: Contract Solutions for the Future of Regulatory Environment (March 24-25)

5 pages.

Drafting And Interpreting Sensitive Gas Purchase Contract Provisions, William D. Watson

Natural Gas Symposium: Contract Solutions for the Future of Regulatory Environment (March 24-25)

8 pages.

Off-System Sales: Will They Ever Return?, Paul F. O'Konski

Natural Gas Symposium: Contract Solutions for the Future of Regulatory Environment (March 24-25)

5 pages.