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

Perspective on the RAND Report: The Dialogue Continues

This issue of Dispute Resolution Magazine focuses on the RAND Report, offering a wide variety of perspectives on the study and its significance. It begins with RAND\u27s own summary of its methodology, findings, and preliminary conclusions

States Starting to Offer Legal Protection for Apology

There is a small trend a-foot in the state legislatures, and a welcome one at that: Providing some legal protection for people who want to apologize for their role in a harm, but who are fearful because of the possibility that their apologies will later be used against them in legal proceedings

Beyond Stress Reduction: Mindfulness as a Skill for Developing Authentic Professional Identity

Mindfulness is often touted in the legal field for its capacity to help reduce stress and improve focus through the management of distractions. However, the potential contributions of mindfulness practice for the legal profession extend beyond stress reduction\u27 and include great promise for helping lawyers understand who they are as members of the legal profession - that is, their professional identity. This knowledge is empowering because it allows lawyers facing ethical quandaries to make choices that better align their professional values with their personal values, rather than aligning their personal values with professional values and societal expectations of success. In so doing, mindfulness practice has the capacity to help improve attorney well-being, uplift the level of professionalism throughout the field, and mitigate the need for attorney discipline

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

One Crime, Two Punishments - Asset Forfeiture Cases Offer Chance to Sort out Double Jeopardy Issues

At a time when anti-government sentiment is running high in some quarters, the U.S. Supreme Court is considering several cases on the hot-button issue of government seizure of private property linked to crimes, known as asset forfeitures

Personal Autonomy and Vacatur After Hall Street

This article analyzes the implications of the U.S. Supreme Court’s landmark decision in Hall Street Associates v. Mattel, Inc., 128 S.Ct. 1396 (2008), in which the Court said that arbitration parties may not contract for substantive judicial review of arbitration under the Federal Arbitration Act. The article contends that Hall Street Associates was rightly decided as a matter of dispute resolution process characteristics and values theory because it preserves arbitration’s central virtue of finality. It further argues that the Court’s insistence on the exclusivity of the FAA’s statutory grounds for vacatur should spell the end of the so-called “non-statutory” grounds for vacatur that have proliferated in the federal and state courts since the adoption of the FAA - including manifest disregard of the law, but perhaps not including the public policy exception. Finally, the article explores the question, raised by the Hall Street Court, of whether arbitration agreements calling for heightened judicial review may be upheld on grounds other than the FAA, such as state common or statutory law, or the inherent authority of the courts