International Commercial Arbitration, Anticipatory Repudiation, And The Lex Mercatoria,
2014
Benjamin N. Cardozo School of Law
International Commercial Arbitration, Anticipatory Repudiation, And The Lex Mercatoria, Kyle Winnick
Cardozo Journal of Conflict Resolution
The scope of this Note is thus two-fold: (1) to delineate the doctrine of anticipatory breach as it is currently under the lex mercatoria; and, (2) to evaluate and argue for its consistency in application by international arbitral tribunals. Section I-A discusses when arbitrators will choose to apply the lex mercatoria as the substantive law of the dispute. Section I-B explains the doctrine of anticipatory repudiation and discusses its inherent ambiguity. Section IC assesses the role of the CISG and the UNIDROIT Principles as a manifestation of the lex mercatoria. Section II-A explores the severability issue and an …
Masthead, Cardozo Journal Of Conflict Resolution, Vol. 16 (2014–15),
2014
Yeshiva University, Cardozo School of Law
Masthead, Cardozo Journal Of Conflict Resolution, Vol. 16 (2014–15)
Cardozo Journal of Conflict Resolution
No abstract provided.
Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 16, Iss. 1,
2014
Yeshiva University, Cardozo School of Law
Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 16, Iss. 1
Cardozo Journal of Conflict Resolution
No abstract provided.
Status And Contract In An Emerging Democracy: The Evolution Of Dispute Resolution In Ghana,
2014
St. John's School of Law
Status And Contract In An Emerging Democracy: The Evolution Of Dispute Resolution In Ghana, Paul F. Kirgis
Cardozo Journal of Conflict Resolution
Ghana is one of the developing world's success stories. The first sub-Saharan colony to gain independence, it is a stable democracy experiencing sustained economic growth. Yet as Ghana reaches for the material gains of participation in modern commercial life, its dual legal systems-the system of customary adjudication by traditional authorities and the formal court systemhave come under increasing pressure. New legal developments have truncated the authority of traditional decision-makers, while an overburdened court system lacks the resources to fill the resulting adjudicative gaps. To solve the problem, Ghana is now experimenting with a system of quasi-public dispute resolution, including contractual …
Brazil's Legacy Of International Parental Child Abduction: Mediation Under The Hague Abduction Convention As A Solution,
2014
Benjamin N. Cardozo School of Law
Brazil's Legacy Of International Parental Child Abduction: Mediation Under The Hague Abduction Convention As A Solution, Paula Shulman
Cardozo Journal of Conflict Resolution
This Note argues that Brazil's failures to comply with the commands of the Hague Convention, to expeditiously return children abducted by a parent from their habitual residence to Brazil, can be remedied with the adoption of a new mediation model in lieu of its current system. This new mediation protocol can be modeled on those adopted in the United Kingdom and Germany. Section II of this Note provides a history of IPCA and an analysis of the problems unresolved or springing from the Hague Convention. Section III examines Brazil's accession to the Hague Convention, the Brazilian Central Authority, the body …
Frcp 26 Vs. Fre 408: Why Settlement Negotiations Should Be Privileged Against Third-Party Discovery,
2014
Benjamin N. Cardozo School of Law
Frcp 26 Vs. Fre 408: Why Settlement Negotiations Should Be Privileged Against Third-Party Discovery, Andrew Sher
Cardozo Journal of Conflict Resolution
This Note proposes that courts should recognize a settlementnegotiation privilege because it will incentivize parties to settle. Settling disputes is beneficial to the judicial system as it is more efficient and effective at resolving disputes than trying cases. Recognizing a settlement-negotiation privilege will increase the number of settlements by avoiding the free-rider problem that the Federal Circuit's approach in In re MSTG will create. Similarly, creating a settlement-negotiation privilege will avoid the uncertainty caused by not recognizing a privilege or requiring heightened standards for discovery. The confidentiality and certainty of a settlement-negotiation privilege will encourage parties to settle as well …
We Are Not Who We Pretend To Be: Odr Alternatives To Online Impersonation Statutes,
2014
Benjamin N. Cardozo School of Law
We Are Not Who We Pretend To Be: Odr Alternatives To Online Impersonation Statutes, Kori Clanton
Cardozo Journal of Conflict Resolution
This Note focuses on how online dispute resolution ("ODR") processes, as opposed to litigation, offer a more efficient and effective legal solution to resolving online impersonation disputes. The purpose of this Note is to analyze the measures state legislatures and social media websites have implemented to combat online impersonation cases, and to propose a practical ODR solution that will eliminate the burdens of litigation and provide a cost-efficient and time-effective remedy. Section I provides an introduction to the current relevance and rising incidents of online impersonation via social media websites such as Facebook and Twitter. Section II explores the historical …
The Ohio State University Dispute Resolution In Special Education Symposium Panel,
2014
American University Washington College of Law
The Ohio State University Dispute Resolution In Special Education Symposium Panel, Robert Dinerstein
Scholarly Articles in Law Reviews & Journals
No abstract provided.
The War On Drugs Is Over (If You Want It): State Drug Courts As An Alternative To Criminal Courts For Low-Level Nonviolent Drug Offenders,
2014
Benjamin N. Cardozo School of Law
The War On Drugs Is Over (If You Want It): State Drug Courts As An Alternative To Criminal Courts For Low-Level Nonviolent Drug Offenders, Blake Courlang
Cardozo Journal of Conflict Resolution
Part I of this Note describes the social, political, and legal reasons behind the rise of mandatory minimum sentencing in the 1980s and their path towards becoming advisory in the 2000s, as held by the Supreme Court in United States v. Booker. Part II provides a description of drug courts and argues for the use of drug courts as an alternative to the criminal sanctions for all nonviolent, low-level drug offenders. As part of this discussion, this Note examines the use of mandatory minimum sentencing post-Booker and the procedural method of divesting federal jurisdiction of nonviolent, low-level drug offenses …
Prisoner Facilitated Mediation: Bringing Peace To Prisons And Communities,
2014
Pepperdine University School of Law
Prisoner Facilitated Mediation: Bringing Peace To Prisons And Communities, Laurel Kaufer, Douglas E. Noll, Jessica Mayer
Cardozo Journal of Conflict Resolution
Prisons are too often places of conflict, violence, and fear. After spending years in such an environment Susan Russo and a group of like-minded inmates decided that they needed to take action. In 2007, Ms. Russo began sending over fifty handwritten letters to mediators throughout California, asking for assistance in setting up a conflict resolution program at the prison where she resided. Eventually, in 2009, one of her letters reached Laurel Kaufer, who, with her colleague Doug Noll, responded to Ms. Russo's request. Through their collaboration Prison of Peace ("POP") was born. POP employs an innovative method of prison conflict …
Case Study In Patent Litigation Transparency, A,
2014
University of Missouri School of Law
Case Study In Patent Litigation Transparency, A, Bernard Chao, Derigan Silver
Journal of Dispute Resolution
By focusing on a single high profile patent case, Monsanto v. DuPont, this article explores the problem of transparency in patent litigation from two perspectives. First, this article provides metrics for understanding the nature and quantity of documents that were filed under seal in the Monsanto case. Second, this article scrutinizes particular aspects of the case to provide a more nuanced understanding of what the public cannot see. Although primarily descriptive, this article critically analyzes the sealing of so many documents by questioning the level of judicial oversight applied in decisions to seal court filings. It then goes on to …
Head Of The Class: Oxford Health Plans And The Uncertain Future Of Class Arbitrability Determinations,
2014
University of Missouri School of Law
Head Of The Class: Oxford Health Plans And The Uncertain Future Of Class Arbitrability Determinations, Kevin Sack
Journal of Dispute Resolution
Arbitration clauses allow contracting parties to resolve their contractual disputes without being subjected to lengthy and expensive judicial processes. Arbitrators are authorized to interpret contractual arbitration agreements to determine which issues the parties agreed to arbitrate. However, contract arbitration provisions are often silent as to the availability of class action procedures. Oxford Health Plans LLC v. Sutter held that, when parties expressly agree to allow an arbitrator to interpret whether their agreement allows class action arbitration, the arbitrator does not exceed his authority in doing so, regardless of interpretive error.' This note first discusses how the United States Supreme Court …
Future Of Mandatory Employee Arbitration Agreements, The,
2014
University of Missouri School of Law
Future Of Mandatory Employee Arbitration Agreements, The, Marcy Greenwade
Journal of Dispute Resolution
First, this note examines the historical interpretations of arbitration agreements under the FAA and the NLRA. Next, it explores the reasoning behind the discrepancies that exist between the judicial and administrative arbitration decisions. Additionally, this note assesses the lack of a uniform standard and its effect on decision makers, employers, and employees. Lastly, this note evaluates the potential implications of a liberal policy favoring arbitration in the context of mandatory employee arbitration agreements.
(I Can't Get No) Satisfaction: Using Restorative Justice To Satisfy Victims' Rights,
2014
Benjamin N. Cardozo School of Law
(I Can't Get No) Satisfaction: Using Restorative Justice To Satisfy Victims' Rights, Jessica M. Marshall
Cardozo Journal of Conflict Resolution
The responsibility of sentencing defendants is the most difficult task within the criminal justice system. As the Honorable Jed S. Rakoff noted above, a sentencing judge is faced with the role of taking a guilty defendant and determining what punishment her crime warrants. Incarceration? Probation? Time served? Each judge evaluates the specific offense's characteristics, such as the number of victims, amount of loss, and violence of the offense, against the specific offender's characteristics, such as family history, age, and military service. As part of this evaluation, the defendant, the Government, the Probation Office in the form of a Presentence Report, …
Arbitration And The Contract Exchange,
2014
University of Colorado Law School
Arbitration And The Contract Exchange, Andrew A. Schwartz
Publications
A contract exchange, defined as an organized marketplace for the creation or trading of specific contracts, provides benefits to its members as well as the public at large. But legal disputes can arise on contract exchanges, just as they do anywhere else, and those disputes can be litigated, mediated, arbitrated, or resolved in some other way. This Essay claims that arbitration, rather than litigation, is a particularly useful and appropriate means for resolving exchange-related disputes, and that this is true not only for traditional contract exchanges, like the Chicago Board of Trade, but also for online "consumer contract exchanges," such …
Differentiating Among International Investment Disputes,
2014
Duke Law School
Differentiating Among International Investment Disputes, Julie A. Maupin
Faculty Scholarship
Can investor-state arbitration tribunals, which exercise jurisdiction over limited claims involving discrete parties, render awards that deliver individualized justice while also promoting systemic fairness, predictability and coherence? The answer, I argue, is a qualified yes – provided that the methods employed are tailored to the particular characteristics of each dispute. Using three well-known investment arbitrations as case studies, I illustrate that investor-state disputes vary widely in terms of their socio-legal, territorial, and political impacts. Significant variances along these three dimensions call for a differentiated approach to investor-state dispute resolution. I outline what such an approach might look like and analyze …
Procedural Justice Beyond Borders: Mediation In Ghana,
2014
Fordham University School of Law
Procedural Justice Beyond Borders: Mediation In Ghana, Jacqueline Nolan-Haley, James Kwasi Annor-Ohene
Faculty Scholarship
Ghana enacted comprehensive alternative dispute resolution legislation in 2010 with the specific goals of providing access to justice and promoting domestic and foreign direct investment (The Act). A significant aspect of the Act was the inclusion of customary arbitration and mediation. The focus of this Article is on mediation as this is the first time that mediation has been included in a statute in Ghana. The Act’s definition of mediation reflects an understanding of the mediation process based upon the western values of individual autonomy and party self-determination. These principles represent a significant departure from the more communal values of …
“Sticky” Arbitration Clauses? The Use Of Arbitration Clauses After Concepcion And Amex,
2014
University of Georgia Law School
“Sticky” Arbitration Clauses? The Use Of Arbitration Clauses After Concepcion And Amex, Peter B. Rutledge, Christopher R. Drahozal
Scholarly Works
We present the results of the first empirical study of the extent to which businesses have switched to arbitration after AT&T Mobility LLC v. Concepcion. The Supreme Court’s decision in Concepcion led commentators to predict that every business soon would use an arbitration clause, coupled with a class arbitration waiver, in their standard form contracts to avoid the risk of class actions. We examine two samples of franchise agreements: one sample in which we track changes in arbitration clauses since 1999, and a broader sample focusing on changes since 2011, immediately before Concepcion was decided. Our central finding is consistent …
Disaggregative Mechanisms: The New Frontier Of Mass-Claims Resolution Without Class Actions,
2014
University of Georgia School of Law
Disaggregative Mechanisms: The New Frontier Of Mass-Claims Resolution Without Class Actions, Jaime Dodge
Scholarly Works
Aggregation has long been viewed as the primary if not sole vehicle for mass claims resolution. For a half-century, scholars have consistently viewed the consolidated litigation of similar claims through joinder, class actions and more recently multi-district litigation as the only mechanism for efficiently resolving mass claims. In this Article, I challenge that long-standing and fundamental conception. The Article seeks to reconceptualize our understanding of mass claims resolution, arguing that we are witnessing the birth of a second, unexplored branch of mass claims resolution mechanisms — which I term “disaggregative” dispute resolution systems because they lack the traditional aggregation of …
Your Day In 'Wiki-Court': Adr, Fairness, And Justice In Wikipedia's Global Community,
2014
Dalhousie University Schulich School of Law
Your Day In 'Wiki-Court': Adr, Fairness, And Justice In Wikipedia's Global Community, Sara Gwendolyn Ross
Articles, Book Chapters, & Popular Press
Wikipedia has quickly become the largest volume of collected knowledge on the planet, but it is also one of the busiest centers for dispute resolution in the world. From small groups of individuals negotiating article changes on “talk pages”, to the involvement of hundreds of people in the formation of the community consensuses needed to implement new policies, to the use of binding arbitration to create final conflict resolutions, the Wikipedia community has developed a complex network of norms and rules that funnel all disagreements and intractable differences through a series of progressively more involved dispute resolution processes. I provide …
