Dispute Resolution and Arbitration Commons^™

Choosing Sides: On The Manipulation Of Civil Litigation, Yotam Kaplan, Ittai Paldor

Vanderbilt Law Review

Our litigation system is broken. Scholars have long warned that professional litigants, such as debt-collecting firms, insurance companies, and commercial landlords, enjoy immense and unfair advantages over private individuals. What has gone unnoticed is professional litigants’ ability to manipulate their litigatory position—that is, to choose whether they will litigate as plaintiffs or defendants. Extant literature assumes that the parties’ litigatory positions are determined by the substance of the dispute: the party seeking a remedy is the plaintiff, and the party objecting to the award of a remedy is the defendant. We show that, in reality, professional litigants have both the …

Adr And Capital One’S Acquisition Of Discover, Yakov Schwalb

Cardozo Journal of Conflict Resolution (CJCR) Blog

On February 19th Capital One announced that it was buying Discover for $35.3 billion. If approved, this acquisition would make Capital One the United States’ sixth largest bank and its third largest credit-card issuer. However, many have voiced concerns with this deal. Senators from both sides of the aisle have called on the Federal Trade Commission (“FTC”) to block this transaction as a violation of antitrust law. Senator Hawley from Missouri said that “[i]f consummated, this merger will create a new juggernaut in the credit card market, with unprecedented powers to extort American consumers," while Senator Elizabeth Warren of Massachusetts …

Small Print, Big Impact: Examining The Effects Of Forced Arbitration, Myriam E. Gilles

Testimony

Testimony Before the U.S. Senate Committee on the Judiciary

Using Adr To Help Resolve Nyc’S Eviction Crisis Since The Termination Of The Tenant Safe Harbor Act, Jacob Siri

Cardozo Journal of Conflict Resolution (CJCR) Blog

In a post-pandemic world, describing New York City Housing Court as “time-consuming” would be a drastic understatement. New York City faces a staggering backlog of at least 70,000 eviction cases, causing some to linger for more than four years. The backlog is due to a shortage of judges, pandemic-instituted moratoria, an influx of new cases, and a myriad of other reasons. New York City’s Tenant Safe Harbor Act was introduced at the start of the pandemic on March 7th, 2020, but has since been terminated on January 15th, 2022. The act protected tenants who could not pay rent due to …

Kukin Program Newsletter – Spring 2024, Kukin Program For Conflict Resolution

Kukin Program Newsletters

The Kukin Program Newsletter – Spring 2024 highlights recent achievements, events, and developments in Cardozo Law School’s Alternative Dispute Resolution (ADR) program. Key features include student accomplishments in national ADR competitions, faculty contributions to international conferences, and updates on new courses like Dispute Systems Design and International Investment Arbitration. The issue also covers the Cardozo Divorce Mediation Clinic’s 13th anniversary, faculty spotlights, and the Cardozo Dispute Resolution Society’s inaugural Arbitration Day. This newsletter reflects the Kukin Program's commitment to advancing ADR education and supporting students in impactful, real-world learning experiences.

Alternative Dispute Resolution In Montana: A Catalog Of The Local Rules In Montana District Courts, Brianna Anderson, Brock Flynn

Student Scholarship

A catalog of the Local ADR Rules for the Montana Judicial District Courts, including rules about settlement conferences, mediation, and informal domestic relations trials.

Real Practice Systems Annotated Bibliography, John Lande

Faculty Publications

Real Practice Systems (RPS) theory holds that practitioners’ practice systems are based on their personal histories, values, goals, motivations, knowledge, and skills as well as the parties and the cases in their work. RPS analysis can be used in many dispute resolution roles such as mediator, advocate in mediation, negotiator, and litigator generally. In mediation, practitioners develop categories of cases, parties, and behavior patterns that lead them to design routine procedures and strategies for dealing with recurring challenges before, during, and after mediation sessions.

RPS theory is the culmination of much of the work in my scholarly career. The bibliography …

What Is The Price Of Withdrawing From Investor-State Dispute Settlement Provisions In An Era Of Climate Conscious Policy? Comparing Latin America's Rejection Of Foreign Investor Control To The Fallout From The Energy Charter Treaty, Carrie Swiggum

Student Scholarship

This article examines Investor-State Dispute Settlements criticisms and intended benefits as it comes up in public law issues such as the Energy Charter Treaty. The treaty is the world’s largest multilateral treaty, with about 50 member countries, and the most litigated, with most cases decided by arbitration. There is criticism against an inability to modernize the treaty due to concerns regarding climate change as well as criticism against the investor-state dispute settlement system itself, because of arbitration’s secrecy and lack of public involvement. This article argues that countries should leave unilaterally as they have begun to do, avoiding the regulatory …

Constitutional Supremacy, Inherent Powers, And Orders That Damages Or Costs Be Paid In Instalments: Tan Meow Hiang V Ong Kay Yong [2023] Sghc 286, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

The General Division of the High Court of Singapore stated (obiter) in Tan Meow Hiang v Ong Kay Yong that it does not have a general power to order that damages or costs be paid in instalments. It reasoned that any such power must have been impliedly restricted by legislation. So instalment orders can only be made (a) by certain subordinate courts; (b) by the General Division on appeal; (c) by the General Division at first instance in personal injury cases. In response, this note aims to advance the conversation on the law on instalment orders and what the Constitution …

Application Of Singapore's New Rules On Service Out Of Jurisdiction: Three Arrows Capital And Nw Corp, Adeline Chong

Research Collection Yong Pung How School Of Law

No abstract provided.

Conceptualising State-Centric Mediation: An Analysis Of China's Foreign Investment Complaints Mechanism, Mark Mclaughlin

Research Collection Yong Pung How School Of Law

This article argues that China's foreign investor complaints system constitutes 'state-centric investment mediation'. The Rules on Handling Complaints of Foreign-Invested Enterprises, which entered into force on 1 October 2020, place a state agency in the position of facilitating negotiations between a foreign investor and the agency being complained against. The prospects for this complaints system depend on how the state-as-mediator dynamic is perceived by foreign investors. To this end, it will be argued that settlement agreements reached pursuant to this system may be enforceable under the Singapore Convention on Mediation in certain circumstances. Investors and government entities operating similar systems …

Importance Of Mediation In The Workplace, Cardozo Labor And Employment Law Society

2023–2024 Flyers

No abstract provided.

Why Greco-Turkish Conflict Needs American Intervention: A Meaningful Mediator, Lemonia Tzanides

Cardozo Journal of Conflict Resolution (CJCR) Blog

Tensions between the Greek and Turkish governments have soared over territorial claims in the Aegean, chiefly concerning the delimitation of territorial waters. The conflict arose on January 20th, 2021, when the Greek parliament nearly unanimously passed a law extending the breadth of Greece’s territorial waters in the Aegean Sea towards Turkey. While bilateral treaties exist between Turkey and Libya and between Greece and Egypt, each regulating the maritime zones of the contracting states, no such agreement exists between Greece and Turkey. “These agreements, however, have no legal effect on Greece and Turkey because international agreements must not harm nor benefit …

Cardozo Dispute Resolution Society Presents: Wine Negotiation, Cardozo Dispute Resolution Society, Cardozo Wine Society

2023–2024 Flyers

No abstract provided.

Mediation Between States And Criminal Defendants For Post-Conviction Relief Under State Dna Statutes, Nowshin Nawal

Cardozo Journal of Conflict Resolution (CJCR) Blog

With new advances in DNA technology, it has become easier to use DNA testing to find perpetrators of crime where DNA evidence is present. Many incarcerated individuals claiming innocence seek to have the evidence tested during post-conviction in light of new technology. Forty-seven states now have DNA statutes that allow testing during the post-conviction stage. A new problem arises because state prosecutors are often reluctant to agree to DNA testing, which leaves litigation as the remaining method—which is inefficient. The process would be more efficient if a third party worked with the state and the defendant.

This post was originally …

From Conflict To Resolution: The Advantages Of Mediation In Estate Planning, Sarah Natanov

Cardozo Journal of Conflict Resolution (CJCR) Blog

Estate planning involves advanced planning for managing and distributing one’s assets following their passing. It entails identifying inheritors among individuals or entities and establishing measures to ensure the seamless execution of these wishes, aiming to minimize future complications. Estate planning documents often used to distribute assets after one’s passing are wills, trusts, and other legal documents. While these documents may serve as a roadmap for asset distribution, they may not invariably preclude disputes or conflicts among beneficiaries or family members.

This post was originally published on the Cardozo Journal of Conflict Resolution website on March 19, 2024. The original post …

Lopez V. Cintas Corporation: Another Interstate Headache, Kyle Chrisman

Texas A&M Law Review

This Note analyzes a 2022 Fifth Circuit opinion concerning two issues: first, whether local delivery drivers are engaged in interstate commerce, and second, who decides challenges to arbitrability. In Lopez v. Cintas Corporation, the Fifth Circuit first held that local delivery drivers are not engaged in interstate commerce because they do not play a direct and necessary role in interstate commerce. Second, the court held that the arbitrator decides challenges to the validity of arbitrability when the challenge could also, if successful, attack the validity of the entire contract. The Fifth Circuit used incorrect reasoning, overemphasizing the crossing of …

Dissociative Identity Disorder And Mediation: Exploring Legal Capacity, Bayla Zohn

Cardozo Journal of Conflict Resolution (CJCR) Blog

Dissociative Identity Disorder (“DID”) is a mental disorder where the affected individual has two or more distinct personalities. As a protection strategy against severe, persistent abuse and trauma, DID develops in childhood and lasts the entirety of the person's life. A crucial aspect of DID is "dissociation," which is defined as a defense mechanism in which threatening ideas and feelings are separated from the rest of the psyche and conflicted impulses are kept apart. Dissociation refers to the disconnection from one’s environment, emotions, memories, and thoughts. The child's neuronal sense of self-identity is still developing at the time of this …

The Supreme Court Has Granted Review For Arbitration Stays In Employment Cases: Smith V. Spizzirri, Sarah Cole

Cardozo Journal of Conflict Resolution (CJCR) Blog

The Supreme Court has granted review to address a circuit split on whether cases should be paused or thrown out after they are moved to arbitration. The courts are split six to four, four allowing lawsuits to be dismissed when underlying allegations must go through mandatory arbitration. The case is from the Ninth Circuit, on the allowance side of the split, Smith v. Spizzirri, with the petition granted 1/12/24. It addresses the language in a section of the Federal Arbitration Act (“FAA”). The section of the Act under review states: “If any suit or proceeding be brought in any of …

The American Arbitration Association’S Ai Integration Efforts For Alternative Dispute Resolution, Ronnie Cattier

Cardozo Journal of Conflict Resolution (CJCR) Blog

The American Arbitration Association (“AAA”) has joined a long line of various organizations that are looking to make use of, and integrate artificial intelligence (“AI”) into their processes.The AAA has launched innovation programs that are lending support to the idea of AI integration into arbitration, mediation, and other Alternative Dispute Resolution (“ADR”) methods. These programs are looking at creating the right structure and guidelines for AI usages. This is two-fold: on the one hand, the AAA has been building its own solutions; on the other, there is an increasing awareness on developing the framework for external AI tools.

This post …