Dispute Resolution and Arbitration Commons^™

Mass Procedures As A Form Of "Regulatory Arbitration" - Abaclat V. Argentine Republic And The International Investment Regime, S. I. Strong

Faculty Publications

This article takes a unique and intriguing look at the issues presented by Abaclat, considering the legitimacy of mass procedures from a regulatory perspective and using new governance theory to determine whether a new form of regulatory arbitration is currently being developed. In so doing, the discussion describes the basic parameters of regulatory litigation and analyzes the special problems that arise when regulatory litigation is used in the transnational context, then transfers those concepts into the arbitral realm. This sort of analysis, which is entirely novel as a matter of either public or private law, will shape future inquiries regarding …

Lost Options For Mutual Gain? The Layperson, The Lawyer, And Dispute Resolution In Early America, Carli N. Conklin

Faculty Publications

In 1786, legal reform activist Benjamin Austin undertook a campaign to promote the use of arbitration over litigation as the primary method of dispute resolution in Massachusetts. Although supported by a groundswell of anti-lawyer sentiment, Austin ultimately failed in securing the triumph of arbitration. Exploring Austin's pamphlet campaign in its historical context not only provides us with a snapshot of the arguments for and against dispute resolution in early America, but also serves as a corrective to the prevailing accounts of arbitration in American legal history. This article explores the context and content of Austin's pamphlet campaign and its implications …

Lafler And Frye: A New Constitutional Standard For Negotiation, Rishi Batra

Cardozo Journal of Conflict Resolution

The Sixth Amendment guarantees "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." In 1984 the Supreme Court in Strickland v. Washington established the standard for ineffective assistance of counsel that is a violation of this right. In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v. Frye, the Supreme Court extended the holding in Strickland to cover ineffective assistance by defense counsel in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that "the negotiation …

Arbitration And The Future Of Delaware's Corporate Law Franchise, Brian Jm Quinn

Cardozo Journal of Conflict Resolution

On September 9, 2011, Skyworks Solutions, Inc. ("Skyworks") and Advanced Analogic Technologies Incorporation ("AATI") entered into a merger agreement. The agreement included an uncommon provision with respect to dispute resolution. In part, that provision stated, "the parties hereto agree that any and all disputes arising under or related in any way to this Agreement or the Transactions shall be resolved solely in arbitration before the Court of Chancery of the State of Delaware. " Until AATI later sought specific performance of the merger agreement via arbitration pursuant to that provision, little notice had been paid by outside observers to the …

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 15, Iss. 1

Cardozo Journal of Conflict Resolution

No abstract provided.

The Role Of Mediation And Insurance In Bet The Company Litigation, Jed Melnick

Cardozo Journal of Conflict Resolution

When most of us graduate from law school, we are not able to read or understand our own car insurance policy, and yet the resolution of most commercial litigation would not happen without the involvement of insurance. The reality is that, in the context of class actions and "bet the company" litigation, insurance is usually the sole source of funds used to resolve the dispute. What follows is the transcript from a panel discussion that took place on February 9, 2012 at Cardozo Law School entitled, "The Role of Mediation and Insurance in Bet the Company Litigation." The idea behind …

The Lawyer With The Adr Tattoo, Jennifer W. Reynolds

Cardozo Journal of Conflict Resolution

This Article considers whether ADR presents a branding problem for legal professionals and, if so, how those professionals can reclaim the brand in productive, career-affirming ways. Whether one should self-identify as proponent, practitioner, or scholar of alternative practices implicates broad tensions not only around assimilating with integrity into any longstanding change-resistant profession, but also around the shortcomings of the adversarial system and the legitimacy of ADR.

The Psychology Of Mediation, David A. Hoffman, Richard N. Wolman

Cardozo Journal of Conflict Resolution

The purpose of this article is to provide an overview and summary of a broad range of psychological phenomena and examine their application to mediation. Our goal is to provide mediators-as well as the lawyers and disputants who use mediation-with a guide to navigating the powerful psychological and emotional currents that flow through the mediation process.

Lessons From Teaching Students To Negotiate Like A Lawyer, John Lande

Cardozo Journal of Conflict Resolution

This article reports my observations from teaching those courses and offers suggestions for future efforts to improve legal education, particularly through negotiation and other dispute resolution courses. This article also describes experiments with other teaching techniques in my courses. My experience supports the benefits of the (1) focus on negotiation in a wide range of situations in addition to the final resolution of disputes and transactions ("final negotiation"); (2) addition of "ordinary legal negotiation" stage simulations in addition to traditional single-stage simulations. These approaches were critical in providing students with a more realistic understanding of negotiation.

Of course, one should …

Constitutional Conundrums In Arbitration, S. I. Strong

Cardozo Journal of Conflict Resolution

In the immortal words of Grease, some things "go together, like rama-lama-lama, ka-dinga-da-dinga-dong." Though everyone has their own list of favorite pairings, some sure-fire winners are hot dogs and baseball, Mom and apple pie, Justice Scalia and original intent.

Other combinations are not so easy to anticipate, at least until some far-reaching visionary has taken that all-important first step, leading the rest of the world to say "yes, of course, we see it now." Again, individual preferences vary, but some possible unions include surfing and kite flying (now an Olympic sport), bacon and chocolate (now available at an internet …

Get On The Plane: Why Understanding The Israeli-Palestinian Conflict Is Best Done By Traveling There, Andrea Kupfer Schneider, Katie Lonze

Cardozo Journal of Conflict Resolution

International travel seems necessary for understanding international conflict and yet, bringing entire classes of students to the locus of the conflict can be daunting. This essay uses one such example of a class trip to demonstrate the potential learning that occurs with international travel and why, particularly when studying international conflict, onsite learning is crucial.

The genesis of this trip comes from the favorite learning experiences in college: two different international trips taken by author Andrea Schneider ("Andrea"). The first was during her junior year in a seminar on Greek-Turkish relations. The class traveled to both Greece and Turkey, meeting …

The Impact Of Local Patent Rules On Rate And Timing Of Case Resolution Relative To Claim Construction: An Empirical Study Of The Past Decade, Pauline M. Pelletier

Journal of Business & Technology Law

No abstract provided.

Opting Out Of The Procedural Morass: A Solution To The Class Arbitration Problem, Emanwel Josef Turnbull

Student Articles and Papers

American class actions are internationally regarded as a procedural form to avoid and widely criticized in the United States. They have been narrowed and restricted by U.S. statutes and case law. Plaintiffs' lawyers in consumer class actions are portrayed as greedy and fraudulent, while businesses are increasingly acting to avoid class actions through mandatory pre-dispute arbitration clauses. Even class arbitration is criticized as leading to a “procedural morass.”

This Article proposes that parties and arbitral fora opt out of the American procedural morass (and the attendant long-running disputes about American class actions) by adopting an English procedural rule for aggregation. …

Lessons From Mediators' Stories, John M. Lande

Faculty Publications

This article is part of a symposium discussing the book, Stories Mediators Tell, edited by Eric Galton and Lela Love. The book consists of accounts of 31 actual mediations, followed by reflections of each mediator-author. Some of the chapters tell of extraordinary cases and others are more routine.

Discovery Under 28 U.S.C. §1782: Distinguishing International Commercial Arbitration And International Investment Arbitration, S. I. Strong

Faculty Publications

For many years, courts, commentators and counsel agreed that 28 U.S.C. §1782 – a somewhat extraordinary procedural device that allows U.S. courts to order discovery in the United States “for use in a proceeding in a foreign or international tribunal” – did not apply to disputes involving international arbitration. However, that presumption has come under challenge in recent years, particularly in the realm of investment arbitration, where the Chevron-Ecuador dispute has made Section 1782 requests a commonplace procedure. This Article takes a rigorous look at both the history and the future of Section 1782 in international arbitration, taking care to …

American Exceptionalism In Consumer Arbitration, Amy J. Schmitz

Faculty Publications

“American exceptionalism” has been used to reference the United States’ outlier policies in various contexts, including its love for litigation. Despite Americans’ reverence for their “day in court,” their zest for contractual freedom and efficiency has prevailed to result in U.S. courts’ strict enforcement of arbitration provisions in both business-to-business (“B2B”) and business-to-consumer (“B2C”) contracts. This is exceptional because although most of the world joins the United States in generally enforcing B2B arbitration under the New York Convention, many other countries refuse or strictly limit arbitration enforcement in B2C relationships due to concerns regarding power imbalances and public enforcement of …

Providing Dispute Resolution Expertise To The Community, Rishi Batra

Faculty Articles

As schools and other public institutions struggle for funding, law schools and their students have new opportunities to fill unmet needs by providing consulting expertise in facilitation and dispute resolution. Such partnerships can provide valuable service for the institutions while giving students a chance to apply their skills to issues in nearby communities.

Managing Inner And Outer Conflict: Selves, Subpersonalities, And Internal Family Systems, Leonard L. Riskin

UF Law Faculty Publications

This article describes potential benefits of considering certain processes within an individual that take place in connection with external conflict as if they might be negotiations or other processes that are routinely used to address external disputes, such as mediation or adjudication. In order to think about internal processes in this way, it is necessary to employ a model of the mind that includes entities capable of engaging in such processes. The Internal Family Systems (IFS) model, developed by Richard C. Schwartz, works well for this purpose. The IFS model is grounded on the construct that the mind is composed …

Hidden Curriculum Of Legal Education: Toward A Holistic Model For Reform, The, David M. Moss

Journal of Dispute Resolution

The following section of this article directly addresses the notion of the hidden curriculum and why this construct is essential for legal educators to consider as they contemplate reforms. Core principles of curriculum theory will then be briefly discussed as a precursor to the subsequent section that addresses the notion of a transdisciplinary curriculum. A transdisciplinary perspective will offer a holistic lens for considering law school curriculum. Finally, such notions as curriculum mapping offer tangible solutions to addressing the challenge of preparing practice-ready graduates in the legal profession.

Training The Heads, Hands And Hearts Of Tomorrow's Lawyers: A Problem Solving Approach , Lisa A. Kloppenberg

Journal of Dispute Resolution

I hope this essay on preparing practice-ready graduates is a useful resource for those considering circular reform or for those in legal education undertaking assessment and strategic planning processes. I begin with four goals: (a) to offer a brief synopsis of the two major critiques of legal education which have influenced deeply recent curricular reforms by many law schools and the challenges facing law schools today; (b) to summarize recently published data from the ABA Curriculum Committee on trends in law school curricula, showing some significant areas of reform in legal education over the past decade, and offering some thoughts …