Litigation Commons^™

The Evolution Of The Summary Trial: A Flexible Tool To Meet A Variety Of Needs, Paula Hannaford-Agor, Nicole L. Waters

Faculty Publications

Are summary jury trials a viable forum for dispute resolution? The National Center for State Courts studied summary trials in six state courts to understand how these programs work and to determine the benefits and detriments of this approach to dispute resolution.

Forum Non Conveniens On Appeal: The Case For Interlocutory Review, Cassandra Burke Robertson

Faculty Publications

Court-access doctrine in transnational litigation is plagued by uncertainty. Without a national court-access policy, federal courts often reach inconsistent forum non conveniens decisions even on very similar facts. This inconsistency is compounded by the district court’s largely unreviewable discretion in making those forum-access decisions, which precludes effective resolution of these conflicts through the appellate process. As a result, the law underlying the forum non conveniens doctrine remains unsettled, creating systemic inefficiency both in litigation procedure and in regulatory policy.

This article, prepared for the symposium “Our Courts and the World: Transnational Litigation and Civil Procedure,” argues that expanding appellate review …

Arbitrability And Vulnerability, Carolyn L. Dessin

Akron Law Faculty Publications

Arbitration is cool. Everybody‟s doing it. In the eighty-five years since the passage of the Federal Arbitration Act, that seems to be the prevailing sentiment. Recent decades have seen the meteoric rise of arbitration as a form of alternative dispute resolution. Arbitration is widely regarded as a less expensive, more expeditious alternative to litigation.

Courts frequently note that federal policy clearly favors arbitration. No judicial enthusiasm for arbitration seems more complete than that evidenced in the jurisprudence of the United States Supreme Court.

Along with the rise of arbitration, however, there has also been a rise in the amount of …

Taxing Punitive Damages, Gregg D. Polsky, Dan Markel

Scholarly Works

There is a curious anomaly in the law of punitive damages. Jurors assess punitive damages in the amount that they believe will best “punish” the defendant. But, in fact, defendants are not always punished to the degree that the jury intends. Under the Internal Revenue Code, punitive damages paid by business defendants are tax deductible and, as a result, these defendants often pay (in real dollars) far less than the jury believes they deserve to pay.

To solve this problem of under-punishment, many scholars and policymakers, including President Obama, have proposed making punitive damages nondeductible in all cases. In our …

Legal Bargaining Theory's New "Prospecting" Agenda: It May Be Social Science, But Is It News?, Robert J. Condlin

Faculty Scholarship

In the good old days legal bargaining scholarship was based mostly on negotiator war stories exuberantly told. The social-scientific study of the subject did not begin in earnest until the nineteen-seventies. Since then, however, the literature of storytelling has gone into a pronounced eclipse and social-scientific study is now the principal scholarly game in town. This article questions the wisdom of this shift, almost seismic in its proportions, and argues that it is too soon to jump on the social science bandwagon. Discussion focuses on the uses made of the Prospect Theory of Daniel Kahneman and Amos Tversky and the …

The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students For Real World Lawyering, John M. Lande, Jean R. Sternlight

Faculty Publications

This Article briefly reviews the long history of critiques of legal education that highlight the failure to adequately prepare students for what they will and should do as attorneys. It takes a sober look at the hurdles reformers face when trying to make significant curricular changes and proposes a modest menu of reforms that interested faculty and law schools can largely achieve without investing substantial additional resources.This Article emphasizes the special contributions that alternative dispute resolution (ADR) can provide to legal education more generally. ADR instruction is an important corrective to a curriculum that routinely conveys the erroneous implication that …

Practical Insights From An Empirical Study Of Cooperative Lawyers In Wisconsin, John M. Lande

Faculty Publications

This article reports on a study of members of the Divorce Cooperation Institute (DCI), a group of Wisconsin lawyers who use a "Cooperative" process to provide a constructive and efficient negotiation process in divorce cases. The study involved in-depth telephone interviews and several surveys of DCI members. Although DCI members use this process only in divorce cases, it can be readily adapted for other types of cases.DCI's approach generally involves an explicit process agreement at the outset, based on principles of: (1) acting civilly, (2) responding promptly to reasonable requests for information, (3) disclosing all relevant financial information, (4) obtaining …

Integrating Investment Treaty Conflict And Dispute Systems Design, Susan Franck

Scholarly Articles in Law Reviews & Journals

With the debate on the renewal of the Trade Promotion Authority Act, the proper terms of investment treaties - including dispute resolution provisions - have become an issue of public scrutiny. In a so-called litigation explosion, investors resolve disputes against host governments through international arbitration mechanisms in investment treaties; and there is little evidence of reliance on other processes like mediation. This escalation has lead to a teething period where parties and non-parties have expressed divergent views as to the efficacy, efficiency and fairness of the dispute resolution process. With billions of dollars and sovereignty at stake, the dispute resolution …

Private Rights And Collective Governance: A Functional Approach To Natural Resources Law, Eric T. Freyfogle

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

4 pages.

"Eric T. Freyfogle, Max L. Rowe Professor of Law, University of Illinois College of Law"

Judging Judges And Dispute Resolution Processes, John M. Lande

Faculty Publications

This article critiques Professor Chris Guthrie's lead symposium article entitled, "Misjudging." Guthrie's article makes two major arguments. The first is a descriptive, empirical argument that judges are prone to error because of three types of "blinders" and that people underestimate the amount of such judicial error. The second argument is prescriptive, recommending that, because of these judicial blinders, disputants should consider using non-judicial dispute resolution processes generally, and particularly facilitative mediation and arbitration.This article critiques both arguments. It notes that, although Guthrie presents evidence that judges do make the kinds of errors that he describes, his article does not address …

Final Offer Arbitration In The New Era Of Major League Baseball, Spencer B. Gordon

ExpressO

This article provides a comprehensive analysis of the economic, athletic, and social impact of final offer salary arbitration in Major League Baseball (“MLB”). The article delves into the motivations, fluctuations, and evolution of the player-owner relationship and free agency. The commentary then focuses on the distinguishing features and intricacies of final offer arbitration. Although salary arbitration in the context of Major League Baseball is a topic oft discussed in the law review setting, the analysis rarely reaches the level exhibited in this article. Moreover, most articles on the subject were written between 1996 and 2000 when the 1994 players’ strike …

Introduction To Vanishing Trial Symposium, John M. Lande

Faculty Publications

This symposium shows that "vanishing trial" phenomena touch an extremely broad range of issues including transformations of society, courts, dispute resolution procedures, and even the nature of knowledge. These phenomena relate to decisions by litigants in particular cases, court systems, national policy, and international relations. This subject is too large and complex for any symposium to analyze fully, especially at this early stage of analysis. This symposium makes an important contribution to this study, with theories and evidence about the existence, nature, and extent of reductions in trials and similar proceedings. It elaborates a range of theories about possible causes …

Enforcement Of Arbitral Awards Against Foreign States Or State Agencies, S. I. Strong

Faculty Publications

Britain's Lord Denning once said that “as a moth is drawn to the light, so is a litigant drawn to the United States.” Certainly, as a pro-arbitration state and a signatory to various international conventions concerning the enforcement of foreign arbitral awards, the United States seems a natural place to bring an action to enforce an arbitral award against a foreign state or state agency. However, suing a sovereign has not traditionally been a simple task in the United States or elsewhere. Most nations grant foreign states the presumption of immunity, thus denying that their domestic courts have jurisdiction to …

Designer Trials, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

This article considers the intersection of freedom of contract and the trials that have not vanished. Could contracting parties effectively agree in advance of a dispute that any litigation of the case will comply with certain rules? Would such an agreement be enforced even in a contract of adhesion? If so, parties with sufficient bargaining leverage could design away many of the characteristics of litigation that they find unappealing, without the need to resort to private processes. The result: a designer trial with the procedural deck stacked in favor of the party with the greatest pre-dispute bargaining power.

Such a …

Do Attorneys Do Their Clients Justice? An Empirical Study Of Lawyers' Effects On Tax Court Litigation Outcomes, Leandra Lederman, Warren B. Hrung

Articles by Maurer Faculty

Do attorneys really add value or can unrepresented parties achieve equivalent results? This fundamental question ordinarily is difficult to answer empirically. An equally important question both for attorneys and the justice system is whether attorneys prolong disputes or instead facilitate expeditious resolution of cases.

Fortunately, there is a federal court that provides an excellent laboratory in which to test and answer these questions. In the United States Tax Court (Tax Court), where most federal tax cases are litigated, the government always is represented by Internal Revenue Service attorneys but a large portion of the taxpayer litigants proceed pro se. In …

Shifting The Focus From The Myth Of "The Vanishing Trial" To Complex Conflict Management Systems, Or I Learned Almost Everything I Need To Know About Conflict Resolution From Marc Galanter, John M. Lande

Faculty Publications

To say that The Vanishing Trial is a myth is not to suggest that the facts or analysis in Professor Marc Galanter's seminal report on the vanishing trial are fictional or inaccurate. Indeed, he marshals a massive amount of data to show that the number of trials and the trial rates have been declining for the past four decades, particularly in the federal courts. The report documents an apparent paradox: the proportion of cases going to trial has dropped sharply during the past forty years despite substantial increases in many other legal indicators including the number of lawyers, the number …

Procedural Justice, Lawrence B. Solum

ExpressO

The real work of procedure is to guide conduct. It is sometimes said that the regulation of primary conduct is the work of the general and abstract norms of substantive law—clauses of the constitution, statutes, regulations, and common law rules of tort, property, and contract. But substance cannot effectively guide primary conduct without the aid of procedure. This is true because of three problems: (1) the problem of imperfect knowledge of law and fact, (2) the problem of incomplete specification of legal norms, and (3) the problem of partiality. The solution to these problems is particularization by a system of …

Arbitral Law-Making, Thomas E. Carbonneau

Michigan Journal of International Law

Diversity--of a cultural, economic, religious, and political kind—exists not only among nation-states and in the sources and interpretation of international law, but also among the group of commentators who study the interactions of transborder actors and institutions. For example, sociologists interested in the global community seek to identify emerging entities and activities and to elaborate conceptual models that explain the new differentiations within the traditional pattern. Some of them have a mounting interest in the fashioning of transborder commercial justice by international arbitrators and private arbitral institutions. Who are these new players? How did they acquire their mandate? Further, how …

Possibilities For Collaborative Law: Ethics And Practice Of Lawyer Disqualification And Process Control In A New Model Of Lawyering, John M. Lande

Faculty Publications

This article assesses the possibilities for collaborative law (CL) to promote problem-solving negotiation and analyzes the operation and effect of the CL disqualification agreement (DA), which CL leaders hold as essential to the process. In CL, the lawyers and clients agree to negotiate from the outset of the case using a problem-solving approach. Under CL theory, the process creates a metaphorical "container" by using a DA disqualifying both lawyers from representing their clients if either party chooses to proceed in litigation. This article argues that much CL theory and practice is valuable, including protocols of early commitment to negotiation, interest-based …

Symposium Introduction: Perspectives On Dispute Resolution In The Twenty-First Century, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

Ulysses Tied To The Generic Whipping Post: The Continuing Odyssey Of Discovery "Reform", Jeffrey W. Stempel

Scholarly Works

One need not be a charter member of the Critical Legal Studies Movement (“CLS”) to see a few fundamental contradictions in litigation practice in the United States. A prominent philosophical tenet of the CLS movement is that law and society are gripped by a “fundamental contradiction” and simultaneously seek to embrace contradictory objectives. Civil litigation, particularly discovery, is no exception: New amendments to the discovery rules are the latest example of this contradiction. Although the new changes are not drastic, they continue the post-1976 pattern of making discovery the convenient scapegoat for generalized complaints about the dispute resolution system. One …

Getting The Faith: Why Business Lawyers And Executives Believe In Mediation, John M. Lande

Faculty Publications

Do you believe in mediation? That may seem like an odd question. Normally one thinks of ‘believing in‘ (or having faith in) things like magic, God, or the market. These are typically things that are beyond verifiable human knowledge (such as magic and God) and/or deeply held values (such as whether the market is a better mechanism than government for managing the flow of goods and services). At first blush, one might not think that mediation would fall into either category. There have been numerous empirical studies about many different aspects of mediation, so one can confidently say, for example, …

Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stempel

Scholarly Works

Some people (lawyers, scholars, judges, dispute resolvers, policymakers) are more concerned about fidelity to procedural protocols while others are more concerned with the substantive rules governing disputes and substantive outcomes. Those in the dispute resolution community preferring facilitation tend to be proceduralists. For them, the observance of proper procedure is a high goal, perhaps the dominant goal. They reason, often implicitly, that adherence to the rules of procedure is the essence of neutrality, fairness, and the proper role of a dispute resolving apparatus. At some level, usually subconscious, there is a post-modern philosophical aspect of this preference. Because humans cannot …

Toward More Sophisticated Mediation Theory, John M. Lande

Faculty Publications

In the lead article in this symposium, Professor Jeffrey Stempel provides a very thoughtful analysis of the mediation field. He focuses on the debate over facilitative and evaluative mediation and he is critical of many of the arguments made by proponents of facilitative mediation. I have expressed some similar concerns, and I generally agree with his analysis (with a quibble here and there). I do think that the facilitation-evaluation debate has been productive (though admittedly wearisome), and that proponents of facilitative mediation deserve more credit than he gives them in his article.

Symposium: Multidistrict Litigation And Aggregation Alternatives: Foreword, Howard M. Erichson

Faculty Scholarship

On March 30, 2001, a somewhat surprising discussion took place among two judges, two plaintiffs' lawyers, a defense lawyer, and a legal scholar. The occasion was a Seton Hall Law Review symposium on federal multidistrict litigation ("MDL"). What made the discussion surprising was not what the participants said of their experiences with MDL, but rather the extent to which they discussed things other than MDL. Much of the discussion addressed state court litigation beyond the reach of MDL, and federal court aggregation techniques other than MDL. While the presenters left no doubt that MDL retains a central role in the …

Which Cases Go To Trial?: An Empirical Study Of Predictors Of Failure To Settle, Leandra Lederman

Articles by Maurer Faculty

No abstract provided.

Precedent Lost: Why Encourage Settlement, And Why Permit Non-Party Involvement In Settlements?, Leandra Lederman

Articles by Maurer Faculty

No abstract provided.

Failing Faith In Litigation? A Survey Of Business Lawyers' And Executives' Opinions, John M. Lande

Faculty Publications

To provide a more systematic assessment of contemporary faith in litigation, this article looks at a particular context-- business litigation--and analyzes the opinions of three groups of respondents: lawyers in private law firms who do commercial litigation (“outside counsel”), lawyers employed in business firms who do some litigation (“inside counsel”), and nonlawyer executives in business firms (“executives”). These groups have the greatest exposure to litigation in the corporate setting; furthermore, because they play powerful roles in our political, economic, and social life as well as the legal system, their opinions influence public opinion more generally.

A More Complete Look At Complexity, Jeffrey W. Stempel

Scholarly Works

The ability of courts to successfully resolve complex cases has been a matter of contentious debate, not only for the last quarter-century, but for most of the twentieth century. This debate has been part of the legal landscape at least since Judge Jerome Frank's polemic book from which this Symposium derives its title, and probably since Roscoe Pound's famous address to the American Bar Association. During the 1980s and 1990s in particular, the battlelines of the pro-and anti-court debate have been brightly drawn. Some commentators, most reliably successful plaintiffs' counsel and politically liberal academics, defend the judicial track record in …

How Will Lawyering And Mediation Practices Transform Each Other?, John M. Lande

Faculty Publications

This article sketches out some aspects of both lawyering and mediation practice that may be affected by development of a litimediation culture. Part II examines the growth of the private market for mediation and an accompanying specialization of mediation practice. These changes seem likely to require mediators to develop market niches with identifiable characteristics of their mediation practices. Simultaneously, lawyers, as regular buyers of mediation services, will be expected to recognize and make decisions based on significant distinctions between mediation providers.