The Demise Of Class Actions Will Not Be Televised,
2011
Benjamin N. Cardozo School of Law
The Demise Of Class Actions Will Not Be Televised, Benjamin Sachs-Michaels
Cardozo Journal of Conflict Resolution
As evidenced by two recent Cardozo Journal of Conflict Resolution articles, class action waivers in arbitration clauses are currently a hot topic in the field of conflict resolution. With increasing frequency, arbitrators and courts are presented with class action waivers in compulsory arbitration agreements prohibiting the aggregation of claims. This Note argues that some courts have reversed course in their treatment of class action waivers contained in arbitration clauses. There is a new movement to find class waivers, and the arbitration clauses that harbor them, unenforceable. This Note further argues that while plaintiffs uniformly oppose class action waivers, defendants widely …
Equitable Estoppel To Compel Arbitration In New York: A Doctrine To Prevent Inequity,
2011
Benjamin N. Cardozo School of Law
Equitable Estoppel To Compel Arbitration In New York: A Doctrine To Prevent Inequity, Matthew Berg
Cardozo Journal of Conflict Resolution
Arbitration, as a favored alternative to court systems, finds its validity in both state and federal law. The Federal Arbitration Act ("FAA") was enacted in 1925 unopposed, reflecting a strong favored alternative by the federal government to the Article III courts. This presumption was established in Section 2 of the FAA, which provides that contracts that include an arbitration clause "shall be valid, irrevocable, and enforceable" unless a court finds "grounds as exist at law or in equity for the revocation of any contract [or clause]."
Beyond Adjudication: Resolving International Resource Disputes In An Era Of Climate Change,
2011
University of Colorado Law School
Beyond Adjudication: Resolving International Resource Disputes In An Era Of Climate Change, Anna Spain
Publications
This Article examines the role of international adjudication as a mechanism for resolving international disputes and promoting global peace and security in an era of climate change. The central claim is that adjudication has limitations that make it ineffective as a tool for resolving international resource disputes. The Article argues that adjudication is limited due to source and process challenges and it illustrates this claim by reviewing cases adjudicated by the International Court of Justice, the Permanent Court of Arbitration and other international courts and tribunals. Four categories of adjudication limitation emerge: a) cases where the parties refused to submit …
Examining The International Judicial Function: International Courts As Dispute Resolvers,
2011
University of Colorado Law School
Examining The International Judicial Function: International Courts As Dispute Resolvers, Anna Spain
Publications
This article examines the judicial function of international courts by considering both what it is and what it ought to be. The article identifies and describes two distinct functions - dispute settlement and peace promotion - and explores the tensions that exist in pursuing these two aims. It then introduces a third way of understanding the international judicial function that respects international courts’ traditional role as dispute settlers while allowing for their more engaged and proactive function as peacemakers. This third approach conceptualizes that the role of international courts is to resolve disputes. Doing so requires understanding courts as entities …
Cohabitation And The Restatement (Third) Of Restitution & Unjust Enrichment,
2011
American University Washington College of Law
Cohabitation And The Restatement (Third) Of Restitution & Unjust Enrichment, Candace Kovacic-Fleischer
Scholarly Articles in Law Reviews & Journals
The Restatement (Third) of Restitution & Unjust Enrichment clarified and modernized a field that had become muddled since the publication of the Restatement (First) in 1937. One area of modernization relates to the changes in law towards women, particularly changes in law toward female cohabitants. Published in 2011, the Restatement (Third) added a new Section 28, which rejected the view that it would be immoral for one cohabitant to bring suit against the other, and relaxed the restriction on recovery in unjust enrichment for "gratuitous" contributions. This Article reviews societal and legal changes for women since 1937 and notes that, …
The Uk Supreme Court Speaks To International Arbitration: Learning From The Dallah Case,
2011
Columbia Law School
The Uk Supreme Court Speaks To International Arbitration: Learning From The Dallah Case, George A. Bermann
Faculty Scholarship
Rarely, over the decades following its entry into force, was the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, or New York Convention, the subject of a judgment of the UK House of Lords. Yet, within barely over a year after its succession to the House of Lords in October 2009, the United Kingdom Supreme Court delivered a judgment that may not make up for all that lost time, but is deeply instructive nonetheless. The decision in Dallah Real Estate and Tourism Holding Company v. Ministry of Religious Affairs, Government of Pakistan became the vehicle …
William Howard Taft And The Taft Arbitration Treaties,
2011
California Western School of Law
William Howard Taft And The Taft Arbitration Treaties, John E. Noyes
Faculty Scholarship
Part I of this Essay explains Taft's interest in international law, placing it in historical context. Part II, outlines key features of the treaties and explores the debate over their ratification. Part III then reflects on the significance of the treaties.
Family, The Market, And Adr, The,
2011
University of Missouri School of Law
Family, The Market, And Adr, The, Amy J. Cohen
Journal of Dispute Resolution
This Article proceeds in three Parts. I begin by briefly summarizing what I will refer to as separate spheres ideology-the idea that our normative understandings of the family and the market are constructed in contradistinction to one another. I then show how this conceptual distinction between the family and the market shaped the development of alternative dispute processing during two periods of time. The first period, which I introduce to frame the second, examines how dispute processing reformers-beginning during the Progressive era and continuing to the 1930s-distinguished alternative forums for family disputes from alternative forums for commercial ones. In Part …
Access To Justice And Alternative Dispute Resolution,
2011
University of Missouri School of Law
Access To Justice And Alternative Dispute Resolution, William Davis, Helga Turku
Journal of Dispute Resolution
This article reviews access to justice both theoretically and in practice. Second, it highlights some of the challenges and successes of implementing access to justice projects. Finally, it discusses alternative dispute resolution (ADR) reforms in the developing world as one important element of access to justice.
Procedural Justice And The Rule Of Law: Fostering Legitimacy In Alternative Dispute Resolution,
2011
University of Missouri School of Law
Procedural Justice And The Rule Of Law: Fostering Legitimacy In Alternative Dispute Resolution, Rebecca Hollander-Blumoff, Tom R. Tyler
Journal of Dispute Resolution
In Part II, we provide background on the psychology of procedural justice. Then, because the term rule of law has been used so widely and in so many different ways, we explain its various meanings and go on to draw connections between the elements of procedural justice and the rule of law, highlighting both the similarities and distinctions between the two principles. We then marshal evidence in support of the critical role that procedural justice and rule of law values play in fostering perceptions of legitimacy. Part III explores the links among procedural justice, rule of law, and specific ADR …
Adr And Transitional Justice As Reconstructing The Rule Of Law,
2011
University of Missouri School of Law
Adr And Transitional Justice As Reconstructing The Rule Of Law, Michal Alberstein
Journal of Dispute Resolution
This paper addresses the role of ADR in reconstructing the rule of law following the critique this idea received during the 20th century, and exemplifies this role through reference to another alternative movement in law-The Transitional Justice movement. In contrast to efforts to reconcile the notion of the rule of law with ADR, or to demarcate the proper interaction between these social institutions in achieving justice, this paper argues for a deeper connection between the two notions: After briefly analyzing the intricate meanings of the rule of law notion through history and its relation to ADR, the paper continues to …
Comment: Trends And Challenges In Bringing Together Adr And The Rule Of Law,
2011
University of Missouri School of Law
Comment: Trends And Challenges In Bringing Together Adr And The Rule Of Law, Stephanie E. Smith
Journal of Dispute Resolution
The goals of justice, peace, and prosperity will not be achieved overnight. Strategies that aim to achieve a perfect state in a short time frame are doomed to failure. Rule of law approaches should be individualized for local context, and be nimble enough to adapt over time to advance these ambitious goals. Success will require drawing upon expertise from many practice areas and academic fields, and coordinating activities to maximize limited resources.
De Novo A No No: Contractually Expanded Judicial Review Clauses Do Not Preclude Faa Application In State Court Unless The Parties Make It Intentionally Clear The Faa Does Not Apply In Their Agreement - Raymond James Fin. Servs., Inc. V. Honea,
2011
University of Missouri School of Law
De Novo A No No: Contractually Expanded Judicial Review Clauses Do Not Preclude Faa Application In State Court Unless The Parties Make It Intentionally Clear The Faa Does Not Apply In Their Agreement - Raymond James Fin. Servs., Inc. V. Honea, Tom Swoboda
Journal of Dispute Resolution
This Note addresses a recent Alabama Supreme Court decision concerning the issue of contracted appellate review in arbitration agreements. After analyzing the history of enforcement of arbitration agreements between contracting parties in U.S. Supreme Court precedent, this Note will explore the most recent Supreme Court decision regarding when parties may seek judicial review of arbitration awards. The Federal Arbitration Act's (FAA) preemptive effect over state court law will also be addressed, as the Supreme Court was not thoroughly explanatory on the issue. This Note will also evaluate and compare another state court ruling in Pennsylvania on the same judicial review …
Lost In Translation: Can Exporting Adr Harm Rule Of Law Development,
2011
Texas A&M University School of Law
Lost In Translation: Can Exporting Adr Harm Rule Of Law Development, Cynthia Alkon
Journal of Dispute Resolution
This article will begin with a brief explanation of rule of law development work. Section III will describe the role of legitimacy in developing rule of law. Section IV will discuss some examples of how ADR programs are typically included in rule of law development work. Section V will discuss when promotion of ADR programs may work against the development of rule of laws, specifically when ADR might seem more like a new form of corruption or when it might reinforce already existing bad practices. Section VI will offer some questions for ADR and rule of law development practitioners to …
New Twist On An Old Approach: Missouri's Use Of Unconscionability And Consent In The Class Arbitration Waiver Analysis - Brewer V. Missouri Title Loans, Inc., A,
2011
University of Missouri School of Law
New Twist On An Old Approach: Missouri's Use Of Unconscionability And Consent In The Class Arbitration Waiver Analysis - Brewer V. Missouri Title Loans, Inc., A, Whitney Hampton
Journal of Dispute Resolution
In recent years, the inclusion of arbitration agreements in consumer product contracts has become increasingly popular. In an effort to shield themselves from the damaging effects of expensive class action suits by consumers, many companies have begun to include class arbitration waivers in their contracts, which effectively mandate individual arbitration. These arbitration agreements were initially met with optimism. However, courts have seemingly developed a sense of disdain toward them because of their apparent ability to perpetuate disreputable business practices. This has left many courts searching for ways to invalidate class arbitration waivers.
On Precarious Ground: Binding Arbitration Clauses, Collective Bargaining Agreements, And Waiver Of Statutory Workplace Discrimination Claims Post-Pyett - Duraku V. Tishman Speyer Properties, Inc.,
2011
University of Missouri School of Law
On Precarious Ground: Binding Arbitration Clauses, Collective Bargaining Agreements, And Waiver Of Statutory Workplace Discrimination Claims Post-Pyett - Duraku V. Tishman Speyer Properties, Inc., J. Nicholas Haynes
Journal of Dispute Resolution
During the 1960s, federal and state governments put into place a maze of statutes aimed at protecting the civil rights of minorities, both in society and in the workplace. While these statutes have undoubtedly lessened workplace discrimination for minorities in the United States, there are still some areas that are uncertain or unsettled, especially when a union is involved on behalf of the employees. More to the point, there has been a wealth of confusion as to whether the right to bring a statutory workplace discrimination claim can be waived when a worker joins a union and allows the union …
Reflections On Designing Governance To Produce The Rule Of Law,
2011
University of Missouri School of Law
Reflections On Designing Governance To Produce The Rule Of Law, Lisa Blomgren Bingham
Journal of Dispute Resolution
This article first briefly reviews definitions of the rule of law. Second, it briefly reviews current understandings and approaches to governance. Third, it introduces the concept of dispute systems design, its application to collaborative governance across the policy continuum, and failures in the rule of law as seen through this frame. Finally, it provides examples of rule of law initiatives organized across the policy process in governance.
Clearing Civil Procedure Hurdles In The Quest For Justice,
2011
University of Colorado Law School
Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux
Publications
No abstract provided.
Raising The Bar For The Mens Rea Requirement In Common Intention Cases: Daniel Vijay S/O Katherasan V Pp,
2011
Singapore Management University
Raising The Bar For The Mens Rea Requirement In Common Intention Cases: Daniel Vijay S/O Katherasan V Pp, Eunice Chua
Research Collection Yong Pung How School Of Law
Recently, the Court of,4ppeal in Daniel Vijay s/o Katherasan v. Public Prosecutor took the view thatthe law on common intention was not adequately settled in Singapore despite the 138-year history ofs. 34 ofthe Penal Code. It went on to give an extensive review of the cases interpreting the section aswell as its Indian equivalent, before setting out the proper approach to take in "twin crime" commonintention cases, focusing specifically on the mens rea element required in order to establish constructiveliabilityfor the secondary crime. This case note seeks to highlight the changes brought about byDaniel Vijay s/o Katherasan v. Public Prosecutor …
An Unjust Enrichment Claim For The Mistaken Improver Of Land,
2011
Singapore Management University
An Unjust Enrichment Claim For The Mistaken Improver Of Land, Hang Wu Tang
Research Collection Yong Pung How School Of Law
In recent years, the law of unjust enrichment especially in the context of restitution for mistake has developed at an unprecedented pace. The modern jurisprudence of the law of restitution for mistake is exemplified by the causative mistake approach, i.e. if the claimant's mistaken belief causes the claimant to enrich the defendant, the claimant is prima facie entitled to succeed. The principal research question in this paper is whether the causative mistake approach is applicable to a claimant who mistakenly improves the land of the defendant. Recent case law and the most prominent academic treatise in this area suggest that …
