Dispute Resolution and Arbitration Commons^™

Luxury, Legacy, And Resolution: Adr In The World Of Branded Residences, Michael J. Brinn

Cardozo Journal of Conflict Resolution (CJCR) Blog

As of mid-2023, there were 690 completed branded residence schemes across the world, with over 600 schemes in the pipeline expected to be delivered by 2030. Branded residences have become increasingly popular in the luxury real estate market, offering a unique blend of high-end living and hotel-like amenities. These developments, often associated with renowned hotels, present an attractive proposition for buyers seeking both a personal retreat and an investment opportunity. The rental programs offered by developers and branding partners in these luxury projects is one of the main attractive aspects for buyers. It offers the owner the best of both …

Creating Educational Value By Teaching Law Students To Be Quasi-Mediators, John Lande

Faculty Publications

Most mediation courses currently focus primarily on mediators’ perspectives and interventions during mediation sessions. Under the traditional view, mediators are the intervenors, and the parties, attorneys, and other participants in mediation sessions are the intervenees.

This article argues that mediation courses should provide balanced instruction of the roles of both mediators and attorneys by teaching students how to function as “quasi-mediators” when representing clients in mediation. As quasi-mediators, attorneys look for opportunities to reach reasonable agreements whenever appropriate, and they use mediation techniques to move the process in that direction. But they do not surrender their loyalty to their clients …

Is Parenting Authority A Usurpation Of Judicial Authority? Harmonizing Authority For, Benefits Of, And Limitations On This Legal-Psychological Hybrid, Joi T. Montiel

Tennessee Journal of Law and Policy

A “Parenting Coordinator” assists high-conflict parents in resolving disputes that arise in the parents’ efforts to jointly parent their children after a divorce. The Parenting Coordinator simultaneously educates the parents so as to minimize the degree and frequency of future conflict. While Parenting Coordination is not mediation or arbitration, it is also not counseling. Instead, Parenting Coordination is a “legal-psychological hybrid.” A trial court’s delegation to one in this hybrid role the power to determine a fit parent’s access to her child is arguably an improper delegation of judicial authority. While thirteen states have comprehensive schemes setting out their Parenting …

Who Invented It? Streamlining Determination Of Patent Inventorship, Henry H. Perritt, Jr.

University of Miami Law Review

Disputes over inventorship are common in industries where new technology is important. Patents are invalid unless correct inventors are named on the patent, even when all the inventors have assigned their rights to the enterprise applying for a patent. The complexity of modern technology is such that an invention qualifying for a patent rarely is the work of only one individual. Employees and former employees frequently claim that they have been left off patent applications wrongfully. Patent law provides a variety of ways to correct inventorship both while such applications are being prosecuted in the U. S. Patent and Trademark …

Defining The Scope Of Section 1 Of The Federal Arbitration Act: Recent Judicial Interpretations And Implications For The Gig Economy, Charlie Wiener

Cardozo Journal of Conflict Resolution (CJCR) Blog

Section 1 of the Federal Arbitration Act states that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Since the turn of the millennium, the courts have found reason to define the exact limits of the scope of this exception. Notably, Circuit City Stores v. Adams, 532 U.S. 105 (2001), held that the exception in Section 1 must be read narrowly only to include transportation workers, otherwise the enumeration of seamen and railroad employees would not make sense.

The print edition of the issue …

The International Longshoremen’S Association Strike & Removing Public And Political Pressures From The Bargaining Table, Jilly Horowitz

Cardozo Journal of Conflict Resolution (CJCR) Blog

The International Longshoremen’s Association (“ILA”) is the labor union that represents dockworkers in ports along the East Coast and Gulf of Mexico. The management counterpart to the ILA is the United States Maritime Alliance (“USMX”) which represents the various employers associated with the East and Gulf Coast ports. The most recent ILA-USMX master contract, or collective bargaining agreement, ran from October 1, 2018 to September 30, 2024 (the “2018 Agreement”). As ILA workers prepared for a new contract, their two main concerns were securing pay increases and continuing assurances that human jobs would not be replaced by automation.

The print …

Leveling The Playing Field For Racial Justice In The Civil Litigation System, Suzette M. Malveaux

Scholarly Articles

Under the weight of the #MeToo movement and severe public pressure, Congress stopped this unseemly practice for a subset of Americans—those challenging sexual assault and harassment. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASASHA), passed in 2022, gives these victims a choice of whether to challenge sexual misconduct in court or in arbitration. Such ubiquitous take-it-or-leave-it contracts are now unenforceable, giving this narrow swath of the population the power to decide for themselves how to challenge such outrageous wrongdoing. In Expanding the Ban on Forced Arbitration, Michael Z. Green argues that race discrimination claims should …

The Adr Movement: Theoretical Aspects And Practical Potential, Craig A. Mcewen

Maine Law Review

My mission in this paper is to draw upon what we know from the active and lively domestic dispute resolution movements in the United States, Canada, and beyond to identify some of the prospects for and potential problems in developing a dispute resolution system for Canadian-United States trade disputes. Alternative dispute resolution (ADR) is flourishing in the 1980's. Increasing numbers of individuals as well as public and private programs identify their work as alternative dispute resolution. These include private mediation practitioners, ADR partners in major law firms, private organizations such as EnDispute, which will arrange mini-trials and other dispute resolution …

Privatizing Dispute Resolution Under The Free Trade Agreement: Truth Or Fancy?, Leon E. Trakman

Maine Law Review

Replete with evidence of extensive forum shopping, unending discovery procedures, and countless delays in the formal adjudicatory process, the case for an alternative, more specialized medium for the resolution of trade disputes between the United States and Canada has grown more pressing. The problem, however, is in being convinced that the alternative, embodied in the proposed Canada-United States Free Trade Agreement, addresses the deficiencies in the existing medium for dispute resolution without introducing greater social and personal costs of its own. A government, in distancing itself from dispute resolution, also separates itself from the process through which social problems are …

Dispute Resolution Provisions Of The Canada-United States Free Trade Agreement, David P. Cluchey

Maine Law Review

Dispute resolution is a major focus of the recently signed Canada-United States Free Trade Agreement. This focus was heavily influenced by two factors. The first is a significant continuing concern about the dispute resolution procedures and mechanisms under the General Agreement on Tariffs and Trade (GATT). The second factor is the general Canadian perception that trade proceedings under United States law are substantially influenced by political concerns and that under a trade agreement, Canadian businesses would need some protection from United States trade regulation. The general dispute resolution provisions of the Free Trade Agreement, which are found primarily in Chapter …

Dispute Settlement Mechanisms Under The Free Trade Agreement, Ton J.M. Zuijdwijk

Maine Law Review

The purpose of this paper is to review the dispute settlement mechanisms that are contained in the Canada-United States Free Trade Agreement. The two countries reached agreement on the main features of the Free Trade Agreement on October 3, 1987. Thereafter, the elements of the Agreement were converted into the legal text of the Free Trade Agreement and signed by Prime Minister Mulroney and President Reagan on January 2, 1988. Legislation implementing the Free Trade Agreement has been introduced in the Parliament of Canada and in the United States Congress. In Canada the ordinary rules for legislative enactments will apply. …

Canadian Acceptance Of International Commercial Arbitration, John E.C. Brierly

Maine Law Review

A few years ago it would have been impossible to speak of Canadian "acceptance" of international commercial arbitration. Canada had not adhered to any international convention on arbitration, and Canadian legislation did not specifically regulate arbitration in commercial dealings or when it involved some non-national element. There was no federal enactment on the subject. Canadian provincial legislation, whether the civil law of Quebec or the common law of the rest of Canada, had not greatly evolved from the 19th century position expressed in legislation based upon the legal traditions of France and the United Kingdom of the same period. No …

A Canadian Perspective On U.S. Administered Protection And The Free Trade Agreement, Alan M. Rugman

Maine Law Review

The negotiation of the Canada-United States Free Trade Agreement over the 1986-1988 period builds upon over 130 years of bilateral trade and investment policy. With Canada's economy being roughly one-tenth the size of that of the United States, the negotiation of commercial arrangements to govern the bilateral trade and investment relationship assumes great importance in the smaller partner. The size asymmetry means that Canada, as the smaller nation, needs to secure a rules-based system rather than a power-based system in its trading relationship with the United States, which accounts for nearly 80% of its exports. Canada is also the largest …

The Reception Of Arbitration In United States Law, Thomas E. Carbonneau

Maine Law Review

The willingness of any national legal system to endorse the process of arbitral adjudication can be measured by whether its governing statutory law and accompanying case law sustain the validity of arbitration agreements and limit judicial supervision of arbitral proceedings and awards—in effect, whether the laws of a nation establish a cooperative relationship between the courts and the arbitral process. On both scores, United States law on arbitration evinces a clear determination to support the process. The development of the law has given the framework of arbitral adjudication its necessary systemic autonomy. Since 1970, when the United States ratified the …

Alternative Dispute Resolution In International Trade And Business, Thomas E. Carbonneau

Maine Law Review

This workshop, which was held at the University of Maine School of Law on May 27, 1987, consisted of an informal discussion among an interdisciplinary group of experts. The purpose of the workshop was to generate ideas and recommendations regarding the utility of alternative dispute resolution (ADR) in international trade and business, with special reference to Canadian-United States trade relations. The discussion also explored the possible commonalties of domestic and international dispute resolution in the hope of developing a basis for a generic alternative dispute resolution methodology.

Foreword, Charles S. Colgan

Maine Law Review

The Free Trade Agreement concluded between the United States and Canada, and signed on January 2, 1988, has a number of features that distinguish it among the trade agreements of the United States. It eliminates all tariffs, reduces restrictions on business travel, and establishes ground rules for trade in services and for foreign investment. In this latter respect, the Agreement is unique among major international trade agreements of the world. But one of the most enduring aspects of the Agreement is likely to be the provisions establishing a series of dispute settlement mechanisms. This last observation would probably surprise almost …

Introduction To Symposium: Alternative Dispute Resolution In Canada-United States Trade Relations, George J. Mitchell

Maine Law Review

The Alternative Dispute Resolution (ADR) movement in law arose domestically as the pressures on our court system threatened to deprive individual citizens of their "day in court." Maine is a leader in the development and elaboration of the principles and practicalities that must be mastered for ADR mechanisms to function. The University of Maine School of Law symposium examining the application of ADR principles to international disputes focuses specifically on the trade relationship between the United States and Canada. But its examination of both the innovations and limitations of ADR to the resolution of international disputes is broader than this …

The Biden Administration’S Negotiations With Pharmaceutical Companies, Isabel Anthony

Cardozo Journal of Conflict Resolution (CJCR) Blog

The Biden administration has conducted the government’s first ever negotiations with pharmaceutical companies on the cost of life saving drugs. They have been able to negotiate prices down by nearly 80%. The drugs at the center of negotiations are ones that people are prescribed for years at a time in order to manage illnesses such as heart disease, Crohn’s disease, and more. In order to conduct these negotiations, the Biden administration used march-in rights built into the Bayh-Dole Act.

The print edition of the issue has also been released. This post was originally published on the Cardozo Journal of Conflict …

Challenging The Block: Analyzing The Bar Against California’S Enforcement Of Ab 51, Natalie Pearson

Cardozo Journal of Conflict Resolution (CJCR) Blog

As of 2024, the U.S. District Court for the Eastern District of California issued a permanent injunction, barring the enforcement of California’s Assembly Bill 51 (“AB 51”). California’s AB 51 was a state law aimed at prohibiting California employers from requiring arbitration agreements as a condition of employment, protecting workers from being forced into arbitration. The law was set to take effect in 2020 but was delayed by immediate legal challenges. After four years of litigation, the state law was permanently enjoined.

The print edition of the issue has also been released. This post was originally published on the Cardozo …

When To Back Down: Balancing Public Relations With Arbitration, Eli Mizrahi

Cardozo Journal of Conflict Resolution (CJCR) Blog

In 2023, Kanokporn Tansgsuan died of an allergic reaction while dining at the Raglan Road Irish Pub. According to a lawsuit filed by Jeffrey Piccolo, Kanokporn’s husband, after informing a waiter of Tangsuan’s severe allergies, they received assurances that the food would be allergy free. Forty-five minutes later, Tangsuan had a severe allergic reaction and died in the hospital. While the restaurant is located in the Disney Springs shopping, dining, and entertainment complex, it is “neither owned nor operated by Disney” according to a statement released by Disney.

Subsequently, Mr. Piccolo filed suit against Disney and the restaurant for wrongful …