Litigation Commons^™

Reframing The Dilemma Of Contractually Expanded Judicial Review: Arbitral Appeal Vs. Vacatur , Eric Van Ginkel

Pepperdine Dispute Resolution Law Journal

The Federal Arbitration Act ("FAA") of 1925 was created to ensure enforceability of agreements to arbitrate. The FAA is the centerpiece of the federal arbitration policy as construed by the Supreme Court. Section 10(a) FAA enumerates grounds on which an arbitral award can be set aside. The central issue discussed herein is whether parties can agree by contract to allow one of the parties to initiate review of the arbitral award by a court that would otherwise have jurisdiction over those parties, or whether the court's powers are somehow limited to the grounds for vacatur enumerated in Section 10(a) FAA. …

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 …

Environmental Judicial Interpretation And Agency Review: An Empirical Investigation Of Judicial Decision-Making In The Clean Water Act And The Clean Air Act, John A. Sautter, Levente Littvay

Buffalo Environmental Law Journal

Political ideology has long been associated with the manner in which judges make judicial decisions. Extensive empirical research has established the link between a judge s political ideology and how they rule on cases. However, little research has been conducted specifically in environmental law. Indeed, what research is available looks at environmental law in general and has not asked any questions concerning how political ideology might affect decision-making concerning specific environmental statutes. This article seeks to partially fill this void by looking specifically at how political ideology affects whether judges affirm or reverse agency action with respect to the Clean …

Taking The English Right To Counsel Seriously In American Civil Gideon Litigation, Scott F. Llewellyn, Brian Hawkins

University of Michigan Journal of Law Reform

Courts have rejected a right to counsel for indigent civil litigants under the U.S. Constitution. But in some American states, that right arguably already exists as a matter of common law, albeit derived from centuries-old English common and statutory law. This Article analyzes the viability of arguments for incorporating the old English right to counsel in the twenty-seven American states that continue to recognize old English common and statutory law as a source of binding authority. Such "originalist" arguments may be appealing to judges who are more willing to revive a historically based right than establish a new right based …

Following The Rules: Exclusion Of Witness, Sequestration, And No-Consultation Orders, Richard H. Underwood

Law Faculty Scholarly Articles

In this Article, Professor Underwood discusses the varying application of Rule 615 of the Federal Rules of Evidence, which provides for the exclusion of witnesses. He explains that varying application of Rule 615 and state evidence rules following Rule 615's language creates misunderstandings at trial. Thus, it is important to know not only the federal and local rules but also the "way things are done" in a particular court.

An Inconvenient Lie: Big Tobacco Was Put On Trial For Denying The Effects Of Smoking; Is Climate Change Denial Off-Limits?, Elizabeth Dubats

Northwestern Journal of Law & Social Policy

Plaintiffs have made several notable attempts to bring nuisance, trespass, and negligence suits against major sources of greenhouse gas emissions for climate change related injuries. While climate change is a widely recognized environmental issue, courts have refused to recognize it as a basis for a valid cause of action in tort, finding either petitioners lack standing to bring the claim, or that the claim raises political questions that should not be addressed by the judiciary. Some more recent climate change tort claims have also included allegations of fraud on the part of the hydrocarbon industry for actively perpetuating misinformation about …

The Economics Of Third-Party Financed Litigation, Keith N. Hylton

Faculty Scholarship

This paper examines the law and economics of third-party financed litigation. I explore the conditions under which a system of third-party financiers and litigators can enhance social welfare, and the conditions under which it is likely to reduce social welfare. Among the applications I consider are the sale of legal rights (such as contingent tort claims) to insurers, to patent trolls, and to financiers generally

Back To The Future (Reviewing David Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (2011)), William D. Araiza

Faculty Scholarship

No abstract provided.

Lawyer As Peacemaker: A Christian Response To Rambo Litigation, L. Timothy Perrin

Pepperdine Law Review

This article examines and critiques Rambo lawyering. The practice of law has evolved so that the cornerstone principle of client loyalty, together with the economic incentives inherent in law practice, not only create strong motivations for lawyers to pursue their clients' causes vigorously, but also allow lawyers to easily absolve themselves of any moral obligation for their activities as their clients' representatives. Vigorous advocacy is an indispensible part of the modern judicial system, and it is generally believed that truth and justice will be served as long as there are vigorous advocates on both sides and the profession's code of …

Bareboat Charters: Can A Shipowner Limit Liability To Third Parties? Answers For Owners Attempting To Navigate The Unsettled Waters In The Eleventh Circuit, John W. Chitty

Georgia State University Law Review

A bareboat charter is a contractual agreement akin to the lease of a vessel whereby most of the “customary liabilities” of the owner are shifted to the charterer. Some courts have raised concerns over bareboat charters—also referred to as a demise charter—regarding the ability of owners to use the bareboat device as a means to limit liability to injured third parties.

In Baker v. Raymond International, Inc. the Fifth Circuit brought force to this concern; the court held a bareboat charter would no longer shield owners from personal liability for third party injuries caused by the unseaworthiness of a vessel, …

The September 11th Victim Compensation Fund: The Answer To Victim Relief?, Joe Ward

Pepperdine Dispute Resolution Law Journal

The events of September 11, 2001 shook America to its core. The world was forever changed as the horrific tragedy unfolded on live television. Families were destroyed as loved ones were severely injured or killed, leaving spouses and children in need of aid. In response, the United States government established the September 11th Victims' Compensation Fund in an effort to provide the necessary reparations to victims of the terrorist attacks. This article will analyze the September 11th Victims' Compensation Fund (hereafter "Fund") as a way of compensating victims while preserving the financial stability of the United States economy. This Fund …

Preparations For A Storm: A Proposal For Managing The Litigation Stemming From September 11th, 2001 , A. David E. Balahadia

Pepperdine Dispute Resolution Law Journal

After the attacks, the United States government immediately began to address the exorbitant number of problems and issues that resulted. One of the first issues the government addressed was victim compensation. The creation of the September 11th Victim Compensation Fund by virtue of the Air Transportation Safety and System Stabilization Act was the first step towards victim compensation. The VCF would help relatives and families of those killed in the attacks. However, the VCF has several limitations that narrow the scope of those eligible for compensation. The limitations of the VCF are indirectly creating a new two-pronged problem: the first …

"Expanded" Judicial Review Revisited: Kyocera Overturns Lapine, Eric Van Ginkel

Pepperdine Dispute Resolution Law Journal

Just when you thought you could validly add a clause to your client's arbitration agreement providing that the losing party may take an appeal from the award to the district court having jurisdiction over the parties, think again. What was the law of the Ninth Circuit since December 1997, when a three-judge panel of the Ninth Circuit Court of Appeals decided LaPine Technology Corporation v. Kyocera Corporation ("LaPine I"), has just been reversed by the Ninth Circuit Court of Appeals sitting en banc. In its decision, on a rehearing of what the court refers to as " …

Asbestos Litigation In California: Can It Change For The Better?, Steven D. Wasserman, Michael L. Fox, Michael C. Scanlon, Sunny C. Shapiro, Anne Cherry Barnett

Pepperdine Law Review

No abstract provided.

The Center Of The Center For Alternative Dispute Resolution, Wayne D. Brazil

Pepperdine Dispute Resolution Law Journal

Hawaii was one of the first states to establish within its judiciary a Center for Alternative Dispute Resolution. The Center's mission is: to mediate major public policy disputes and to facilitate policy formulation dialogues, to design and help implement mediation and other ADR programs for state and local governmental agencies, to provide education about and training in mediation for the public and for employees of state and local government, and to oversee the extensive network of community mediation centers that provide grass-roots mediation services throughout the Islands. In November of 2005 the Center celebrated its 20th anniversary by sponsoring various …

Brushing Off Lawsuits: Dental Peer Review Examined , Lisa C. Markarian

Pepperdine Dispute Resolution Law Journal

For all contractual and legal intents and purposes, a dentist is a provider of services, while the patient who consents to treatment is a consumer. A dentist's fees reflect, in part, the cost of malpractice insurance protection. Dentists can also calculate into their fees any refunds they may pay back to patients who suffer adverse results.8 An injured patient on the other hand has limited means of protection against damages resulting from the wrongful acts of dentists. The options open to patients include: (1) filing a complaint in civil court, (2) reporting the incident to a government agency such as …

Mediation In The Health Care System: Creative Problem Solving , Sheea Sybblis

Pepperdine Dispute Resolution Law Journal

Part I of this paper provides a comparison of the use of litigation and mediation in the health care context. Part II explores how mediation can be used to improve many of the often criticized aspects of adjudication systems and alleviate tension between parties in health care disputes. Part III provides an evaluation of current mediation programs and studies in health care, as well as the expanding role of mediators. Part IV incorporates assessments of the potential success of mediation to resolve health care disputes in the future and provides suggestions to strengthen the process.

Planning For International Disputes (And What Makes Them Distinctive), Jack J. Coe Jr.

Pepperdine Dispute Resolution Law Journal

Interactive speech given at the Conflict Management Culture seminar, hosted by Pepperdine's Straus Institute for Dispute Resolution.

How To Take Control Of The Runaway Litigation Train , Jeremy Fogel

Pepperdine Dispute Resolution Law Journal

My subject today is how informed and appropriate use of alternative dispute resolution can benefit the parties in a business dispute, both by reducing costs and by producing qualitatively better results. As I will explain, although my colleagues on the bench and I do not mind presiding over your cases, litigating a commercial case rarely is the best means of advancing the interests of the companies involved.

Immunizing Arbitrators From Claims For Equitable Relief, Michael D. Moberly

Pepperdine Dispute Resolution Law Journal

The article begins with a summary of the historical origins of the judicial and arbitral immunity doctrines. Next, the article discusses the courts' refusal to extend judicial immunity to claims for declaratory, injunctive, or other equitable relief, except perhaps in the case of federal judges. The article then explores the propriety of recognizing a similar limitation in cases construing the arbitral immunity doctrine. The article ultimately concludes that (1) arbitrators should be immune from claims for equitable relief as a matter of policy, and (2) in jurisdictions where that result is currently precluded by existing precedent, a comparable result can …

California's Opportunity To Create Historical Precedent Regarding A Mediated Settlement Agreement's Effect On Mediation Confidentiality And Arbitrability , Susan Nauss Exon

Pepperdine Dispute Resolution Law Journal

Confidentiality serves as a cornerstone of mediation. The public policy underlying confidentiality is the promotion of candid communications between disputing parties. As explained in this article, mediation confidentiality affects more than just communication. It affects other important mediation values, such as party self-determination and mediator impartiality. Mediation confidentiality affects parties' ability to enforce their mediated agreements. Finally, confidentiality affects multiple dispute resolution processes, as seen by the interrelated nature of mediation and arbitration in the seminal case of Fair v. Bakhtiari.

Mediation Outcomes: Lawyers' Experience With Commercial And Construction Mediation In The United Kingdom , Penny Brooker, Anthony Lavers

Pepperdine Dispute Resolution Law Journal

This paper reports on the final phase of a three-year study into the role of lawyers in the development of Alternative Dispute Resolution (ADR) following the implementation of the Civil Procedure Rules in 1999 and draws comparisons between US and Canadian studies. The paper centres on the use of mediation, which is recognised as the pre-eminent ADR process in the UK. Data are analysed from 30 interviews with specialist commercial and construction-related lawyers who have utilised mediation in the dispute resolution process. Interviewees were selected from respondents to a national survey of lawyers specializing in commercial and construction-related practice. Whereas …

Copyright Arbitration Royalty Panels And The Webcasting Controversy: The Antithesis Of Good Alternative Dispute Resolution, Jeremy Delibero

Pepperdine Dispute Resolution Law Journal

Music is becoming increasingly synonymous with big business and corporate influence. The advent of Internet radio and streaming webcasts are simply one example of this shift. Organizations such as the Radio Industry Association of America ("RIAA") have discovered a new way to receive royalties from the performance of musical works, and have fought vigorously to obtain favorable rates to achieve the maximum profit. On the other hand, small webcasters have fought equally hard to avoid these large rates. Although arguments for each side are equally persuasive, neither is persuasive enough to force a compromise. In attempting to solve these disputes, …

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 …

International Arbitral Appeals: What Are We So Afraid Of? , Erin E. Gleason

Pepperdine Dispute Resolution Law Journal

This article will explore the advantages of instituting appellate mechanisms in investor-state disputes and international commercial arbitration. Part II begins with a review of the WTO Appellate Body's development and workings, followed by an analysis of other appellate procedures for international trade law arbitration, including the MERCOSUR system's Permanent Court and the Grain and Feed Trade Association's appeals process. Part III examines the current methods for reviewing investor-state arbitration awards under ICSID and NAFTA. Part III goes on to advocate for the creation of an Appeals Facility, separate from current arbitral institutions, which would be empowered to hear appeals in …