References
DAI v. Downey: Associational Standing and Arbitration
February 8, 2012
This article analyzes the tension between associational standing and agreements to arbitrate. We begin with an overview of associational standing and then review five cases in which medical associations sued HMOs and others on behalf of their physician.
February 8, 2012
This article analyzes the tension between associational standing and agreements to arbitrate. We begin with an overview of associational standing and then review five cases in which medical associations sued HMOs and others on behalf of their physician.
Arbitration: Governance Benefits and Enforcement Costs
February 8, 2012
These remarks, presented at the 2004 AALS Annual Meeting panel on civil procedure, review the economic theory of arbitration and related empirical evidence. For parties who can choose between alternative legal regimes, the key determinants of that choice are the governance benefits and enforcement costs connected to the rules under each regime. The choice between arbitration and litigation should be made on the same basis. The empirical literature, though sparse, suggests that superior governance...
February 8, 2012
These remarks, presented at the 2004 AALS Annual Meeting panel on civil procedure, review the economic theory of arbitration and related empirical evidence. For parties who can choose between alternative legal regimes, the key determinants of that choice are the governance benefits and enforcement costs connected to the rules under each regime. The choice between arbitration and litigation should be made on the same basis. The empirical literature, though sparse, suggests that superior governance...
Rethinking the Tripartite Division of American Work Law
February 8, 2012
The holy trinity of American work law - employment discrimination, labor law, and employment law - has governed the American workplace for over four decades and is also firmly entrenched in the curricula of most law schools. But the discrete lenses provided by the conventional trinity make it difficult to bring into focus two distinct but related dimensions of the accelerating integration of American work law. Thus, we are on the one hand experiencing an accelerating doctrinal integration of our field,...
February 8, 2012
The holy trinity of American work law - employment discrimination, labor law, and employment law - has governed the American workplace for over four decades and is also firmly entrenched in the curricula of most law schools. But the discrete lenses provided by the conventional trinity make it difficult to bring into focus two distinct but related dimensions of the accelerating integration of American work law. Thus, we are on the one hand experiencing an accelerating doctrinal integration of our field,...
Democracy and Dispute Resolution: Systems Design and the New Workplace
February 8, 2012
The author suggests that unilaterally imposed arbitration requirements create limitations on the workers' freedom to choose between court or some other form of dispute resolution to resolve their workplace complaint. The arbitration requirement may diminish workers' social capital and destroy trust between employees and management. Formal and informal management policies that treat workers fairly and equally will promote more egalitarian workplaces.
February 8, 2012
The author suggests that unilaterally imposed arbitration requirements create limitations on the workers' freedom to choose between court or some other form of dispute resolution to resolve their workplace complaint. The arbitration requirement may diminish workers' social capital and destroy trust between employees and management. Formal and informal management policies that treat workers fairly and equally will promote more egalitarian workplaces.
Getting Beyond Yes to Collaborative Justice: The Role of Negotiation in Community Lawyering
February 8, 2012
The author discusses Community Lawyering, a problem-solving approach that is built on productive, inclusive relationships, as a method of negotiation and integrative bargaining. Dominguez argues that the Community Lawyering approach, unlike litigation, encourages collaborative justice and active participation in problem resolution by community members. The article discusses the particular problems of a community and how Community Lawyering became involved. It also provides a description of Community...
February 8, 2012
The author discusses Community Lawyering, a problem-solving approach that is built on productive, inclusive relationships, as a method of negotiation and integrative bargaining. Dominguez argues that the Community Lawyering approach, unlike litigation, encourages collaborative justice and active participation in problem resolution by community members. The article discusses the particular problems of a community and how Community Lawyering became involved. It also provides a description of Community...
Treating Tribes Differently: Civil Jurisdiction Inside and Outside Indian Country
February 8, 2012
The author analyzes why Native American tribes are treated differently from states, but are indistinguishable under the existing jurisdictional framework established by the Supreme Court despite wide-ranging differences between tribes. The article features discussion of dispute resolution mechanisms employed by the various Native American tribes, including some that resemble mediation.
February 8, 2012
The author analyzes why Native American tribes are treated differently from states, but are indistinguishable under the existing jurisdictional framework established by the Supreme Court despite wide-ranging differences between tribes. The article features discussion of dispute resolution mechanisms employed by the various Native American tribes, including some that resemble mediation.
The Federalization and Privatization of Public Consumer Protection Law in the United States: Their Effect on Litigation and Enforcement
February 8, 2012
The consumer protection laws discussed in this article involve consumer sales, payment, and credit transactions. The article begins by describing several of the major federal and state statutes that govern the consumer marketplace. The author then discusses the privatization of consumer law, primarily through mandatory pre-dispute arbitration
February 8, 2012
The consumer protection laws discussed in this article involve consumer sales, payment, and credit transactions. The article begins by describing several of the major federal and state statutes that govern the consumer marketplace. The author then discusses the privatization of consumer law, primarily through mandatory pre-dispute arbitration
Private Disputes and the Public Good: Explaining Arbitration Law
February 8, 2012
This article describes two main considerations of international economic arbitration. The micro aspect refers to what procedures will be used in ensuring a fair proceeding for the parties. Additionally, the macro issue examines the social consequences of displacing litigation from the national arena and into the private sector before arbitrators. These two issues present aconstant tension between creating a reliable dispute resolution system and safeguarding the community interests.
February 8, 2012
This article describes two main considerations of international economic arbitration. The micro aspect refers to what procedures will be used in ensuring a fair proceeding for the parties. Additionally, the macro issue examines the social consequences of displacing litigation from the national arena and into the private sector before arbitrators. These two issues present aconstant tension between creating a reliable dispute resolution system and safeguarding the community interests.
Matching Cases and Dispute Resolution Procedures: Detailed Analysis Leading to a Mediation-Centered Approach
February 8, 2012
This article builds on the January 1994 Negotiation Journal article by Sander and Goldberg on the same taxonomy topic. But it takes a much broader view of the problem, first by also looking at others' analysis of the same problem - specifically the work of the CPR International Institute for Conflict Prevention and Resolution, the Federal Judicial Center, and Professor Edward Dauer. Although these sources do not always use the same terminology or focus on the same types of cases, Sander and Rozdeiczer...
February 8, 2012
This article builds on the January 1994 Negotiation Journal article by Sander and Goldberg on the same taxonomy topic. But it takes a much broader view of the problem, first by also looking at others' analysis of the same problem - specifically the work of the CPR International Institute for Conflict Prevention and Resolution, the Federal Judicial Center, and Professor Edward Dauer. Although these sources do not always use the same terminology or focus on the same types of cases, Sander and Rozdeiczer...
How Much Time Is Reasonable?-The Arbitral Decisions Under Article 21.3(c) of the DSU
February 8, 2012
This article argues that arbitrators should consider correlations between specific domestic political events and members' WTO obligations in reaching their decisions. It provides an overview of arbitral decisions interpreting Article 21.3(c) of the Understanding of Rules and Procedures Governing Settlement of Dispute (the rules which govern the Dispute Settlement Board of the World Trade Organization).
February 8, 2012
This article argues that arbitrators should consider correlations between specific domestic political events and members' WTO obligations in reaching their decisions. It provides an overview of arbitral decisions interpreting Article 21.3(c) of the Understanding of Rules and Procedures Governing Settlement of Dispute (the rules which govern the Dispute Settlement Board of the World Trade Organization).
