Dispute Resolution and Arbitration Commons^™

In Defense Of Idea Due Process, Mark Weber

College of Law Faculty

Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker. This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and …

Navigating Cybersquatting Enforcement In The Expanding Internet, 13 J. Marshall Rev. Intell. Prop. L. 321 (2014), Jordan A. Arnot

UIC Review of Intellectual Property Law

It has always been a considerable task to police something as vast at the Internet for trademark violations and abuse. As the Internet develops with the ongoing launch of hundreds of new generic Top-Level Domains, so does the host of enforcement options available to those seeking to protect the value of trademarks and other intellectual property. This article outlines seven criteria to consider when selecting a remedy, or combination of remedies. The traditional cease and desist letter is still a viable and effective option, and so, of course, is litigation. These tools were greatly enhanced in 1999 when the Internet …

The Conventional Wisdom Of Discharge Arbitration Outcomes And Remedies: Fact Or Fiction, Mario F. Bognanno, Jonathan E. Booth, Thomas J. Norman, Laura J. Cooper, Stephen F. Befort

Cardozo Journal of Conflict Resolution

This study examines some of the arbitration community's commonly accepted beliefs about arbitration outcomes and remedies in employee discharge cases, with the findings revealing that some beliefs are likely fact, while others, perhaps, are fiction. With data from 1432 Minnesota discharge awards and 74 arbitrators who decided them, eight truisms are examined pertaining to the following: the frequency that arbitrators use Daugherty's Seven Tests rubric to analyze case evidence and whether its use affects award outcomes; the distribution of varying quanta of required proof by arbitrators and how different quanta affects award outcomes; and the effect of employee job tenure …

The Improbable Birth And Conceivable Death Of The Securities Arbitration Clinic, Jill Gross

Cardozo Journal of Conflict Resolution

This Article explores the birth, life, and possible death of SACs in the United States. Part II of this Article describes the history of the securities arbitration clinic in the United States. Part III describes how a SAC operates and how SAC students help investors. Part IV reviews the pedagogical advantages and disadvantages of a SAC, and addresses the reluctance of many law schools to embrace this type of clinic. Part V concludes by predicting whether these clinics have a future in light of the modern challenges to clinical legal education.

Class Actions A Thing Of The Past … Or Are They? A Look At The Circuit Courts' Application Of Comcast V. Behrend, 48 J. Marshall L. Rev. 335 (2014), Christine Frymire

UIC Law Review

This Comment addresses recent developments in the law of class action waivers and certification. Specifically, it looks at three cases—Comcast, Concepcion, and Wal-Mart—in which the Supreme Court limited class action litigation and class arbitration. This Comment also addresses how the circuit courts are hesitant to follow the Supreme Court’s precedent.

Endangered Element Of Icsid Arbitral Practice: Investment Treaty Arbitration, Foreign Direct Investment, And The Promise Of Economic Development In Host States, Felix O. Okpe

Richmond Journal of Global Law & Business

The omission to define the term "investment" in the ICSID Convention is one of the most critical decisions that has led to inconsistent jurisprudence and the resulting debate regarding the propriety of the ICSID Convention and investment treaty arbitration. The legislative history and the circumstances leading to the birth of the ICSID Convention strongly suggest that its main objective is the protection and promotion of economic development in the host State. Most of the propositions aimed at giving a meaning to the term "investment" in ICSID arbitral practice have focused more on whether the scope of the meaning of "investment" …

Private Enforcement Of Trips By Applying The Eu Law Principles Of Direct Effect And State Liability, Saud Aldawsari

Richmond Journal of Global Law & Business

No abstract provided.

Legal Uncertainty And Aberrant Contracts: The Choice Of Law Clause, William J. Woodward Jr.

Chicago-Kent Law Review

Legal uncertainty about the applicability of local consumer protection can destroy a consumer’s claim or defense within the consumer arbitration environment. What is worse, because the consumer arbitration system cannot accommodate either legal complexity or legal uncertainty, the tendency will be to resolve cases in the way the consumer’s form contract dictates, that is, in favor of the drafter. To demonstrate this effect and advocate statutory change, this article focuses on fee-shifting statutes in California and several other states. These statutes convert very common one-way fee-shifting terms (consumer pays business’s attorneys fees if business wins but not the other way …

Escaping From Lawyers' Prison Of Fear, John Lande

Faculty Publications

Lawyers regularly experience numerous fears endemic to their work. This is not surprising considering that lawyers generally operate in environments that frequently stimulate many fears. Lawyers’ fears can lead them to enhance their performance due to increased preparation and effective “thinking on their feet.” Fear is problematic when it is out of proportion to actual threats, is expressed inappropriately, or is chronically unaddressed effectively. It can lead to sub-optimal and counterproductive performance through paralysis, ritualized behavior, or inappropriate aggression. Some lawyers’ fears unnecessarily prevent them from performing well, producing good results for clients, earning more income, and experiencing greater satisfaction …

Opening The Floodgates Of Small Customer Claims In Finra Arbitration: Finra V. Charles Schwab & Co., Inc., Teresa J. Verges

Articles

No abstract provided.

Public And Private In International Investment Law: An Integrated Systems Approach, Julie A. Maupin

Faculty Scholarship

Members of the invisible college of international investment lawyers are engaged in a fierce battle over the conceptual foundations of their common legal enterprise. The debate centers on whether the international legal regime governing foreign direct investment is a de facto transnational public governance system or merely an institutional support structure for the settlement of essentially private investment disputes. These attempts to establish the public versus private nature of the regime are misconceived. International investment law deals with both public and private concerns, impacts upon both public and private actors, and crosses over traditional divides separating public law from private …

Good Pretrial Lawyering: Planning To Get To Yes Sooner, Cheaper, And Better, John Lande

Cardozo Journal of Conflict Resolution

This Article summarizes the views of respected lawyers about how they negotiate, which were collected as described in Part II. Part III recommends that lawyers develop a strategic approach to negotiation, including general negotiation goals and plans to negotiate at the earliest appropriate time. Part IV outlines recommendations for lawyers to take charge of their cases from the outset, including getting a clear understanding of clients' interests, developing good relationships with counterpart lawyers, carefully investigating the cases, making strategic decisions about timing, and enlisting mediators and courts when needed. Part V provides two general suggestions for improving the quality of …

Wachovia Securities, Llc V. Brand (2012): The Fourth Circuit's Dubious Position In The Ongoing Federal Circuit Split In The Application Of "Manifest Disregard Of The Law" As A Basis For Vacatur Of Arbitration Awards Following The U.S. Supreme Court's Hall Street Decision (2008), Jonas Cullemark

University of Miami Business Law Review

No abstract provided.

The Many Lanes Out Of Court: Against Privatization Of Employment Discrimination Disputes, Theresa M. Beiner

Maryland Law Review

No abstract provided.

Parallel Justice: Creating Causes Of Action For Mandatory Mediation, Marie A. Failinger

University of Michigan Journal of Law Reform

The American common law system should adopt court-connected mandatory mediation as a parallel system of justice for some cases that are currently not justiciable, such as wrongs caused by constitutionally protected behavior. As evidence that such a system is practical, this Article describes systemic and ethical parallels between court-connected mediation and the rise of the equity courts in medieval England, demonstrating that there are no insurmountable practical objections to the creation of “mediation-only” causes of action. The Article then explores the constitutional concerns surrounding the idea of “mandatory mediation-only” causes of action, using constitutional hate speech and invasion of privacy …

The Critical Nature Of Verbal Leaks And Nonverbal Signals During Bargaining Interactions, Charles B. Craver

Cardozo Journal of Conflict Resolution

When individuals negotiate, they communicate with each other in person, over the telephone, or through e-mail and text exchanges. Proficient negotiators carefully prepare for such interactions, and they endeavor to choose their words carefully to convey the precise messages they intend to communicate. Despite these efforts, however, they frequently include inadvertent modifiers that undermine what they appear to be saying. Persons who listen carefully for such "verbal leaks" can gain a significant bargaining advantage.

An Empirical Study Of Arbitrators Acting As Mediators In China, Fan Kun

Cardozo Journal of Conflict Resolution

Whether an arbitrator can and should act as a mediator in a pending arbitration is one of the most controversial issues in international arbitration. While mediation is not a new concept for the West, the practice of having the same person acts as both an arbitrator and a mediator in one proceeding has aroused great debate in theory and practice. The debate gives rise to delicate ethical issues, and touches the very core of arbitration, i.e., the mission of arbitrators.

Section II of the Article reviews relevant literature on the general attitudes of arbitrators in settlement facilitation. Section III defines …

Ethics Consultations And Conflict Engagement In Health Care, Charity Scott

Cardozo Journal of Conflict Resolution

This article explores the intersection of two professional fields-bioethics and clinical ethics consultation in health care on one hand, and alternative dispute resolution ("ADR") and conflict management on the other-which until recent years remained relatively unknown to each other. It marries the literatures and lessons of these two fields in order to promote the quality of ethics consultations in hospitals and other health care organizations.

Increasingly, health care ethics committees and consultants acknowledge the need to employ the frameworks, approaches, and tools of good conflict management to do their work effectively. Similarly, conflict specialists and ADR professionals are becoming increasingly …

Opening The Floodgates Of Small Customer Claims In Finra Arbitration: Finra V. Charles Schwab & Co., Inc., Teresa J. Verges

Cardozo Journal of Conflict Resolution

When the Supreme Court held over twenty-five years ago that customers could be compelled to arbitrate their federal securities claims against their brokers, the vast majority of financial firms in the U.S. inserted pre-dispute arbitration provisions ("PDAAs") in agreements with their customers requiring them to arbitrate any claims arising out of their brokerage relationship. Since Sheerson/ Am. Express, Inc. v. McMahon, investor advocacy groups, scholars, and legislators have called for Congressional action to eliminate mandatory arbitration in securities cases, but the closest Congress has come to such elimination has been to punt this issue to the Securities and Exchange …

Room For Me? - An Analysis Of Whether Mediation Is A Viable Solution To School Bullying, Angelique Palmer

Cardozo Journal of Conflict Resolution

This Article will review recent efforts to utilize mediation as a solution to bullying, and evaluate whether common approaches to its use and implementation have proven to be an effective solution to the bullying epidemic. Part I of this Article provides an overview of bullying and the current state of the problem in America today. Part II discusses the current legal climate and underlying motivations in legislative change and development. It goes on to offer a synopsis of the state of the law and the scope of its reach to address and remedy the problem of bullying. Part III offers …