Dispute Resolution and Arbitration Commons^™

The Racial Implications For Black Claimants At The Federal Arbitration Act's Centennial, Michael Z. Green

Faculty Scholarship

On February 12, 1925, when President Calvin Coolidge signed into law an Act to make arbitration agreements "valid, irrevocable, and enforceable," no person could have expected that this new statute would ever apply to claims by Black litigants. A century later, that law, now referred to as the Federal Arbitration Act (FAA), has evolved to encompass disputes involving a broad array of claimants and processes where businesses enforce pre-dispute agreements to arbitrate. In examining whether Black claimants (businesses, consumers, and importantly, workers) may benefit from using arbitration, this Article investigates how the FAA, as enacted, never intended to address their …

The Arbitration Web Ensnaring Every Consumer: The Next Evolution In Corporate Strategy To Compel Arbitration, Michael Conklin

Maine Law Review

This first-of-its-kind Article uses a novel hypothetical to explore the expanding role of compelled arbitration. The hypothetical involves numerous large corporations agreeing to cross-reference each other in their arbitration agreements, thus attempting to create a massive arbitration web ensnaring nearly every American and allowing corporations to compel arbitration against parties with whom they never interacted. This Article presents the case that courts might enforce such a scheme based on the judicial trend toward ever-expanding compelled arbitration jurisprudence, the docket-clearing incentives faced by judges, existing case law allowing some non-signatories to enforce arbitration agreements, the strong assumption in favor of arbitration, …

The Changing Legal Landscape Of Cookie Banner Claims: Is Arbitration The Answer?, Jared Berklee

Cardozo Journal of Conflict Resolution (CJCR) Blog

Website cookie banners have become a ubiquitous part of internet browsing and are often overlooked by the average consumer. When cookies malfunction or a website operator fails to obtain proper user-consent, it creates risk for potential privacy-related litigation regarding misrepresentation of data-collection practices. In several recent class action lawsuits filed in California, plaintiff-users claim to have opted out of non-essential cookies, but malfunctioning cookie banners continued to log user information. Often alleging unauthorized interception of their electronic communications under the California Invasion of Privacy Act (CIPA) or intrusion upon seclusion, consumers have brought claims against a variety of entities, including …

How The Irs Is Trying To Encourage Taxpayer Buy-In Post-Appeal Mediation, Lingxi Qu

Cardozo Journal of Conflict Resolution (CJCR) Blog

With the 2025 tax return season underway, taxpayers may have dispute resolution options if tax-related disagreements with the IRS occur. Before pursuing litigation, taxpayers can pursue several dispute-resolution options provided by the IRS, including fast track (“FTS”), early referral, and post-appeals mediation. Choosing an appropriate program depends on the status of the disputes and who is currently managing your case. When taxpayers have ordinary unsuccessful appeals negotiations, they can file a request to the IRS Independent Office of Appeals for a non-binding mediation.  This will allow a neutral third-party to facilitate conversations between parties without experiencing costly and exhaustive litigation, …

Intraschool Negotiation Competition, Cardozo Dispute Resolution Competition Honor Society (Cdrchs)

2025–2026 Flyers

Join Cardozo’s Dispute Resolution Competition Honor Society (CDRCHS) for Our Annual Intraschool Negotiation Competition.

Alternative Negotiators: Why It Is Important To Change The Negotiators Between Russia And Ukraine, Abraham Mandelbaum

Cardozo Journal of Conflict Resolution (CJCR) Blog

Since Russia’s annexation of Crimea in 2014, and especially after its full-scale invasion in 2022, repeated diplomatic efforts, primarily between the U.S. and Russia, and to a lesser extent between the U.S. and Ukraine, have failed to produce a lasting peace. For example, in 2025, President Vladimir Putin proposed a new round of ceasefire talks in Istanbul following the expiration of a unilateral three-day truce and renewed drone attacks on Kyiv. European leaders and Ukrainian President Volodymyr Zelenskyy rejected the proposal, insisting that any negotiations must begin with an unconditional ceasefire. Since then, neither side has unconditionally surrendered.

The print …

Sea Changes In Sue-And-Settle Policy: The Tides Of Transparency And Expediency, Evan B. Fitzgerald

Villanova Environmental Law Journal (1991 - )

No abstract provided.

The (Non-) Protection Of Indigenous Rights In Isds, Dr. Kevin W. Gray

Pace International Law Review

International investment law largely flows from the protections afforded foreign investors under bilateral and multilateral investment treaties.  Until recently, few of these treaties required investors to comply with human rights provisions in national constitutions or in international law, or preserved the ability of states to regulate to protect constitutional rights.  As a result, critics have argued, investor-state dispute settlement fails to protect human rights or preserve the ability of states to regulate in the public interest, and that arbitral awards rarely consider, let alone give effect to, rules of human rights.

This article considers the question of how Indigenous rights, …

The Aaa’S Next Frontier: Family Mediation, Elena Foley

Cardozo Journal of Conflict Resolution (CJCR) Blog

As of January 28, 2026, the American Arbitration Association (AAA) has expanded its services to a group quite different from its usual clientele: families. The AAA has begun offering family mediation services and other tailored alternative dispute resolution options designed to meet the unique needs of families navigating separation, divorce, co-parenting, and other domestic matters. The program features a dedicated family mediation panel, made up of skilled mentors, retired judges, former court attorneys, and family law practitioners. These professionals are trained to handle emotionally charged disputes and to help parties work through complex personal and financial issues. The panel will …

The Mysterious Federal Policy In Favor Of Arbitration: Festschrifts Squared, Robert H. Smit

Faculty Scholarship

As far as I can tell, John Fellas and I think alike on most things, both as practicing international arbitrators and as professors of international arbitration law. As arbitrators in practice, all of the awards we have rendered together — whether John chaired, I chaired or we both served as party-appointed arbitrators — were unanimous awards. As professors in academics, we both independently submitted essays — on the occasion of a festschrift in honor of Professor George Bermann — addressing related issues concerning the federal policy in favor of arbitration in the United States. John’s festschrift essay is entitled “ …

The Supreme Court's Policy Favoring Arbitration And Its Limits, George A. Bermann

Faculty Scholarship

While the federal policy favoring arbitration is codified in the 1925 Federal Arbitration Act (FAA), the strength of that policy depends on the treatment that arbitration receives in federal courts and in the United States Supreme Court in particular.

Courts in all jurisdictions play an important role in fashioning the treatment of arbitration agreements, arbitral proceedings and arbitral awards. However, the judicial role in this regard is especially pronounced in the United States, in view of the problematic state of legislation on the subject. The federal legislation on arbitration is 100 years old and has never been meaningfully amended. The …

Behind Every Case Is A Conversation, Donna Shestowsky

Nevada Law Journal

Lawyers play a central role in guiding clients through critical decisions that shape the trajectory of litigation. Among the most consequential of these is the choice of procedures by which disputes will be resolved—whether through trial, mediation, arbitration, or other mechanisms. Despite the weight of these decisions, legal scholarship offers little guidance on how lawyers might structure conversations about procedural options. This Article seeks to address that gap by drawing on empirical research from psychology and related disciplines to develop recommendations for educating and counseling clients—particularly those with little or no prior exposure to the civil justice system—so that they …

Against The Drafter: An Empirical And Theoretical Analysis Of The Doctrine Of Contra Proferentem, Farshad Ghodoosi, Tal Kastner

Fordham Law Review

Contra proferentem, the enduring maxim that directs courts to interpret an ambiguity in a contract against its drafter, appears simple on its face. Although it might be best known as a fundamental principle of insurance law, contra proferentem figures in courts’ interpretation of a range of contract types. As an interpretive rule of thumb that parties can easily override with a simple contract provision, the doctrine and its boilerplate antidote seem to offer a straightforward means to facilitate private ordering—a central goal of contract law.

However, neither courts’ application of the doctrine in case law nor contract drafters’ treatment …

Stitching Up Industry Issues: Arbitration Can Offer Customized Solutions To Fashion Intellectual Property Disputes, Catherine Meng

Pepperdine Dispute Resolution Law Journal

This comment proposes alternative dispute resolution (ADR), specifically arbitration, as a more effective mechanism for resolving fashion copyright disputes. The fashion industry has historically received limited protection for designs—primarily trademark and patent law—resulting in widespread copying and difficulty enforcing claims. In the 2017 case Star Athletica, L.L.C. v. Varsity Brands, Inc., the Supreme Court added copyright to the patchwork of protections. However, that protection is available only for aesthetic elements, not functional ones. The difficulty in distinguishing these components, along with the challenges of enforcing claims across borders and between parties with unequal bargaining power, as in Hian v. Louis …

Table Of Contents & Masthead, Grace E. Brandt

Pepperdine Dispute Resolution Law Journal

No abstract provided.

An Alternative Sacrifice: Religious Arbitration Agreements In Ministerial Employment Contracts, Grace E. Brandt

Pepperdine Dispute Resolution Law Journal

After decades of development in lower courts, the Supreme Court unanimously affirmed the ministerial exception in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. (2012) and provided additional guidance in Our Lady of Guadalupe School v. Morrissey-Berru (2020). The precise contours of the exception remain uncertain, but the doctrine—grounded in the Free Exercise and Establishment Clauses of the First Amendment—effectively bars civil courts from reviewing claims against religious institutions that implicate ministerial employment decisions. Thus, ministers are unable to pursue redress for legitimate harms that occur within the scope of their religious employment, even if unrelated to religious doctrine. This …

Off The Gridiron Conflict: Why The Nfl Should Use Mediation To Resolve Internal Disputes, Bryan Weitzman

Pepperdine Dispute Resolution Law Journal

The National Football League (NFL) is a multibillion-dollar enterprise built on a sport that fundamentally depends on communication, cooperation, and collaboration. Yet the league resolves nearly all internal disputes through adversarial arbitration mechanisms embedded in the NFL Constitution and the NFL/NFL Players Association Collective Bargaining Agreement. This comment argues that the NFL’s exclusive reliance on arbitration is conceptually inconsistent with the values that the sport instills and structurally prejudicial to players, coaches, and employees—particularly where the Commissioner retains final arbitral authority. An examination of alternative dispute resolution (ADR) principles and case studies demonstrates how the NFL’s current internal dispute resolution …

The Regulatory Framework For Crowdsourced Online Dispute Resolution: Revisiting The Dispute Resolution Triangle, Yun Zhao, Zhiming Xiao

Pepperdine Dispute Resolution Law Journal

Crowdsourced Online Dispute Resolution (CODR) constitutes a transformative approach to digital-era disputes, fundamentally reconceptualizing dispute resolution through distributed participant networks rather than merely digitizing traditional alternative dispute resolution. Anchored in Katsh and Rifkin’s dispute resolution triangle (trust, convenience, expertise) and Perritt’s co-regulatory governance model, this paper analyzes CODR’s evolution from early systems such as iCourthouse to contemporary implementations. Case studies of eBay Community Court (contractual self-regulation prioritizing convenience) and Xianyu Small Court (state-aligned hybrid governance optimizing expertise through algorithmic juror specialization) demonstrate how platforms operationalize these theoretical frameworks. The legal analysis examines jurisdictional fragmentation and enforcement challenges, revealing how regulatory …

Hiding Elephants In Mouseholes: Judicial (Mis)Application Of The Federal Arbitration Act To Attorney-Client Arbitration Agreements, Gregory L. Smith

Pepperdine Dispute Resolution Law Journal

This article criticizes cases and commentary that assume, without argument, that the Federal Arbitration Act (FAA) and its decidedly pro-arbitration jurisprudence apply to determine the enforceability of private attorney-client arbitration agreements, thus preempting state bar rules governing disclosures that lawyers must otherwise provide to clients when proposing private, binding arbitration in place of bar-sponsored arbitration regimes. The author argues that applying the FAA and its jurisprudence to attorney-client arbitration agreements raises significant constitutional issues regarding the states’ recognized authority to regulate the legal profession—an issue that courts and commentators have simply ignored.

Dispute Review Boards And The Construction Industry: The Song Remains The Same—Or Does It?, Daniel Mcmillan

Pepperdine Dispute Resolution Law Journal

Dispute Review Boards (DRBs) are a unique form of alternative dispute resolution (ADR) used on large and complex construction projects across the country. Although largely ignored by legal scholars, DRBs have been highly successful in resolving costly, time-consuming disputes involving hundreds of billions of dollars’ worth of projects since their advent in 1975. DRBs are a hybrid form of ADR that combine facilitative and evaluative as well as coercive and non-coercive features of more common forms of ADR. But what actually makes DRBs so effective at dispute avoidance and resolution? This article analyzes: (i) the attributes that make DRBs an …