Democracy and Dispute Resolution: The Problem of Arbitration

This article seeks to bring the submerged issue of arbitration\u27s relationship to democracy to the surface of the mandatory arbitration debate. Its goal is relatively modest: To recognize and articulate the relationship between democracy and arbitration as an issue worth considering, to analyze the democratic character of arbitration and to suggest some implications of this assessment

Democracy and Dispute Resolution: Systems Design and the New Workplace

There has been growing discussion in law reviews and business journals about the so-called new workplace, which is distinguished from the old, in part, by greater employee mobility and job flexibility. This article extends that discussion by exploring the implications of the new workplace for the design of dispute resolution systems. In particular, it argues that the structure and values of the new workplace correspond to the essential values of democratic governance, and that dispute resolution should be integrated into the new workplace in a way that enhances rather than diminishes these core democratic values. As I have articulated in earlier work, these values specifically include personal autonomy, as well as certain political values (participation, accountability, transparency and rationality), legal values (equality and due process), and social capital values (trust in government, social connection and reciprocity). The article further discusses how mediation and arbitration can be integrated into the new workplace in ways that enhances their democratic character, as defined by these dimensions. Finally, it draws upon the organizational behavior and related literatures to provide empirical support for the proposition that more democratic programs can facilitate such traditional management objectives as recruitment and retention, enhanced employee performance, and compliance with corporate rules, policies, and goals

The Art, Craft, and Future of Legal Journalism: A Tribute to Anthony Lewis

In the modern era, few performed this function better than Anthony Lewis, the legendary U.S. Supreme Court reporter and columnist for The New York Times, who died in March 2013. A pioneer in the coverage of law and the courts, Lewis is widely credited with being one of the founders of contemporary legal journalism. Through a remarkable career that included two Pulitzer Prizes and five books, Lewis taught by example a generation of journalists how to cover the law with accuracy, insight, perspective, and passion. While the law can often be dry and technical, and cases idiosyncratic, Lewis showed legal journalists how to communicate the issues to readers in a compelling way, demystifying the complexities of law, bringing out the practical importance of the seemingly arcane, and – perhaps most important – making readers care about the law and its role in the world around them

Confidentiality in Arbitration: Beyond the Myth

Many people assume that arbitration is private and confidential. But is that assumption accurate? This article is the first to explore that question in the important context of whether arbitration communications can be discovered and admitted into evidence in other legal proceedings - a question that is just beginning to show up in the cases. It first surveys the federal and state statutory and case law, finding that arbitration communications in fact are generally discoverable and admissible. It then considers the normative desirability of discovering and admitting arbitration communications evidence, concluding that the free discovery and admissibility of arbitration communications would frustrate the intent of the Federal Arbitration Act and contradict the case law that has arisen under it, thwart the reasonable expectations of the parties, and give rise to potential abuses of the arbitration process. It finally concludes with a recommendation that the burden of proof be elevated for arbitration communications evidence, permitting their discovery only when the evidence is otherwise unavailable and necessary in a particular case

Suing the Firm

Lawyers who once would rather take grievances against their firms to the grave are now taking them to court. Is it the death of professionalism or the dawning of accountability

Re-Tailoring Jury Trial Rights

The debate over improving the civil justice system has gone through many permutations over the years. Discovery, punitive damages and alternative dispute resolution are but a few of the paths that have been pursued. A case argued to the U.S. Supreme Court in January addresses the question from yet another-and potentially a more fundamental direction: the reach of the Seventh Amendment\u27s guarantee of a jury trial in civil cases in federal court

Bringing Mindfulness into the Law School Classroom: A Personal Journey

This autobiographical essay discusses how the author used the techniques and benefits associated with mindfulness to improve his law school classroom teaching. Mindfulness is a state of non-judgmental present moment awareness that is often cultivated through meditation practice but also carried forward into everyday life. The essay discusses how this stance of mindfulness helped the author achieve a greater connection with his students in a variety of both doctrinal and non-traditional classes by fostering more openness, receptivity, and responsiveness to where students are at in the classroom moment, as well as the greater clarity, courage, and compassion that can be so helpful to the teacher who strives for an enhanced teaching experience

Several Initiatives on Media and Conflict under Way

Both in Arizona and in other jurisdictions, both in longstanding and newly implemented programs, both currently and more than a decade ago, court-connected arbitration does not appear to reduce, but also does not substantially improve, the effectiveness and efficiency of dispute resolution. It does, however, seem to increase litigants\u27 access to a hearing. How aspects of program structure could enhance arbitration\u27s performance warrants further study

Public Civil Discourse: A New Domain for Dispute Resolution

We in dispute resolution can view civil discourse about public issues - a direct, deliberative way of exercising democracy itself - as a new but related field in which we can apply our skills and services, and this theme edition of Dispute Resolution Magazine is intended to help those of us in dispute resolution cross the isthmus into what for many of us is the new world of civil discourse

FAA Law, Without the Activism: What if the Bellwether Cases Were Decided by a Truly Conservative Court

The U.S. Supreme Court has decided an extraordinary number of cases under the Federal Arbitration Act in the last half century, a pattern that continues today at the pace of a case or two a year. During this time, Republican presidential candidates have made much political hay out of the Supreme Court, running against the Warren Court’s “liberal activism” by promising to appoint judges who would decide cases more conservatively. In this article, I analyze whether this promise has been fulfilled in the context of the Supreme Court’s FAA jurisprudence by identifying the core principles of judicial conservatism – restraint, fidelity to text, and federalism -- and then applying them to five of the Court’s most significant FAA arbitration cases: Prima Paint v. Flood & Conklin, Southland v. Keating, Gilmer v. Interstate/Johnson Lane, Circuit City v. Adams, and, most recently, AT&T Mobility v. Concepcion. The analysis finds the conservative promise woefully disappointed in the FAA area. Instead, the article contends, the Court has been highly activist as it has used the FAA as pretext to impose its own brand of civil justice reform. Finally, the article concludes by suggesting that FAA arbitration would look very different today had the bellwether cases actually been decided by conservative jurisprudential principles -- much less visible in the dispute resolution landscape but also much more legitimate as a dispute resolution process