Blog Archives
The Evolutionary Force of Behavioral Economics in Law
July 16, 2021
Many of the behavioral insights in economics arise out of experiments or examples in which the conventional claims of economics, and rational choice quite generally, are contradicted by observed results. The conventional view – that people and firms maximize utility and profit, and often do so rather cleverly, even accounting for various feedback effects and thinking about marginal costs and benefits – is rationalist, marginalist, or incentive-based (the expression I will usually use in this...
July 16, 2021
Many of the behavioral insights in economics arise out of experiments or examples in which the conventional claims of economics, and rational choice quite generally, are contradicted by observed results. The conventional view – that people and firms maximize utility and profit, and often do so rather cleverly, even accounting for various feedback effects and thinking about marginal costs and benefits – is rationalist, marginalist, or incentive-based (the expression I will usually use in this...
Tripping Over the Truth
July 14, 2021
I recently finished reading The Power of Moments by Chip Heath and Dan Heath (Simon &Schuster, New York 2017) for an upcoming book club discussion. The authors note that we spend the bulk of our lives living forgettable moments. Yet, every once in a while, we have a moment that rises above the mundane: a defining moment: “… a short experience that is both memorable and meaningful.” (Id. at 12.) Can attending a mediation be a defining moment? For many, it is as it provides...
July 14, 2021
I recently finished reading The Power of Moments by Chip Heath and Dan Heath (Simon &Schuster, New York 2017) for an upcoming book club discussion. The authors note that we spend the bulk of our lives living forgettable moments. Yet, every once in a while, we have a moment that rises above the mundane: a defining moment: “… a short experience that is both memorable and meaningful.” (Id. at 12.) Can attending a mediation be a defining moment? For many, it is as it provides...
Arbitration and Amazon’s Conditions of Use
July 12, 2021
Last week, the Wall Street Journal reported that Amazon quietly dropped its mandatory arbitration clause from its Conditions of Use. In fact, the Conditions of Use were updated May 3, 2021. The provision marked “DISPUTES” now states: Any dispute or claim relating in any way to your use of any Amazon Service will be adjudicated in the state or Federal courts in King County, Washington, and you consent to exclusive jurisdiction and venue in these courts. We each waive...
July 12, 2021
Last week, the Wall Street Journal reported that Amazon quietly dropped its mandatory arbitration clause from its Conditions of Use. In fact, the Conditions of Use were updated May 3, 2021. The provision marked “DISPUTES” now states: Any dispute or claim relating in any way to your use of any Amazon Service will be adjudicated in the state or Federal courts in King County, Washington, and you consent to exclusive jurisdiction and venue in these courts. We each waive...
What Is Normal
July 11, 2021
Some of our judgments are unstable, in the sense that they are an artifact of, or endogenous to, what else we see. This is true of sensory perception: Whether an object counts as blue or purple depends on what other objects surround it. It is also true for ethical judgments: Whether conduct counts as unethical depends on what other conduct is on people’s viewscreens. There are plausible evolutionary explanations for these findings. As behavior in general regresses, actions that were previously...
July 11, 2021
Some of our judgments are unstable, in the sense that they are an artifact of, or endogenous to, what else we see. This is true of sensory perception: Whether an object counts as blue or purple depends on what other objects surround it. It is also true for ethical judgments: Whether conduct counts as unethical depends on what other conduct is on people’s viewscreens. There are plausible evolutionary explanations for these findings. As behavior in general regresses, actions that were previously...
Hybrid and Mixed Dispute Resolution Processes: Integrities of Process Pluralism
July 9, 2021
This chapter explores how the primary and basic processes of negotiation, mediation, arbitration and adjudication have been blended, combined and changed to produce new forms of hybrid and mixed dispute resolution processes, which vary the roles of the parties (self-determination in mediation; representation in adjudication, arbitration and negotiation) and the third parties they may engage to assist in dispute resolution (or prevention) processes. As basic forms of dispute resolution have been...
July 9, 2021
This chapter explores how the primary and basic processes of negotiation, mediation, arbitration and adjudication have been blended, combined and changed to produce new forms of hybrid and mixed dispute resolution processes, which vary the roles of the parties (self-determination in mediation; representation in adjudication, arbitration and negotiation) and the third parties they may engage to assist in dispute resolution (or prevention) processes. As basic forms of dispute resolution have been...
Noise Is Not Just Noise!
July 7, 2021
In a recent post, I discussed the distinction between “noise” and “bias” as noted in the new book, Noise: A Flaw in Human Judgment (Hachette Book Group, New York 2021) by Daniel Kahneman, Olivier Sibony, and Cass R. Sunstein. Although somewhat intense reading, I managed to finish it and realized that the main takeaway is… “Wherever there is judgment, there is noise, and more of it than you think.” (Id. at 255) (“Noise”) So- how do we get rid of all of this noise?...
July 7, 2021
In a recent post, I discussed the distinction between “noise” and “bias” as noted in the new book, Noise: A Flaw in Human Judgment (Hachette Book Group, New York 2021) by Daniel Kahneman, Olivier Sibony, and Cass R. Sunstein. Although somewhat intense reading, I managed to finish it and realized that the main takeaway is… “Wherever there is judgment, there is noise, and more of it than you think.” (Id. at 255) (“Noise”) So- how do we get rid of all of this noise?...
Wilson Sonsini Debuts Neuron – A New Breed of Technology-Enabled Legal Services
July 5, 2021
As part of its continued commitment to the global start-up ecosystem, preeminent technology law firm Wilson Sonsini today unveiled Neuron, the latest step in the firm's mission to disrupt the legal industry. Neuron, the digital home for a start-up's legal needs, is a next-generation proprietary software platform that streamlines, automates, and digitizes the typical legal processes along a start-up's journey - from formation to exit. Dedicated modules will include incorporation,...
July 5, 2021
As part of its continued commitment to the global start-up ecosystem, preeminent technology law firm Wilson Sonsini today unveiled Neuron, the latest step in the firm's mission to disrupt the legal industry. Neuron, the digital home for a start-up's legal needs, is a next-generation proprietary software platform that streamlines, automates, and digitizes the typical legal processes along a start-up's journey - from formation to exit. Dedicated modules will include incorporation,...
The Jefferson – Adams Mediator Benjamin Rush
July 4, 2021
Another Founding Father, eager to reunite the two statesmen, hatched a plan to bring them back together. Benjamin Rush, a civic leader and fellow Declaration signer, wrote to both men, saying the other wanted to rekindle their friendship. (And thus a timeless comedy trope was born). Rush sealed the deal by telling them he had a dream in which they revitalized their friendship through letter-writing before they later “sunk into the grave nearly at the same time, full of years and rich in the gratitude...
July 4, 2021
Another Founding Father, eager to reunite the two statesmen, hatched a plan to bring them back together. Benjamin Rush, a civic leader and fellow Declaration signer, wrote to both men, saying the other wanted to rekindle their friendship. (And thus a timeless comedy trope was born). Rush sealed the deal by telling them he had a dream in which they revitalized their friendship through letter-writing before they later “sunk into the grave nearly at the same time, full of years and rich in the gratitude...
Judges Expect Hybrid Trial System After Pandemic
July 2, 2021
Once the COVID-19 pandemic ends, the new normal in state and federal courts may be a hybrid trial system, with civil trials held mostly online and criminal trials held in person. That was the consensus of three judges and a former magistrate judge at an ABA webinar on the future of remote jury trials after the pandemic. The program was hosted by the ABA Judicial Division and sponsored by Thomson Reuters.
July 2, 2021
Once the COVID-19 pandemic ends, the new normal in state and federal courts may be a hybrid trial system, with civil trials held mostly online and criminal trials held in person. That was the consensus of three judges and a former magistrate judge at an ABA webinar on the future of remote jury trials after the pandemic. The program was hosted by the ABA Judicial Division and sponsored by Thomson Reuters.
The Remarkable (And Often Very Surprising) Benefits of Virtual Mediation
June 28, 2021
A funny thing happened on April 1, 2020. After over 30 years and 7,500 cases as an in person, high-touch mediator, I grudgingly became, out of necessity born by COVID-19, a virtual, online mediator. The first month was admittedly a very rocky one for me. I worried about my ability to handle the very easy technology and that I might accidentally bump the participants off the platform. I also hated to see myself on the screen. Initially, I felt, albeit incorrectly, that this made me the center...
June 28, 2021
A funny thing happened on April 1, 2020. After over 30 years and 7,500 cases as an in person, high-touch mediator, I grudgingly became, out of necessity born by COVID-19, a virtual, online mediator. The first month was admittedly a very rocky one for me. I worried about my ability to handle the very easy technology and that I might accidentally bump the participants off the platform. I also hated to see myself on the screen. Initially, I felt, albeit incorrectly, that this made me the center...
