Technological Evolution and the Devolution of Corporate Financial Reporting

My claim is that the technology link to the recent disclosure scandals is no coincidence. To be sure, cheating tempts all who seek wealth, in whatever line of business they find themselves. I want to show, however, how the rapid pace of innovation at a number of levels offered motive, opportunity, and rationalization for a downshift in financial reporting norms, which in turn made outright fraud more probable

Suppose It\u27s Not True: Challenging Mediation Ideology

Across the country, people who file lawsuits are being diverted from adjudication to mediation. Whereas once mediation was seen as the preferred means of resolving family disputes (especially those involving child custody), now it is mandated for a broad range of civil disputes. Whereas once citizens were called upon to volunteer as mediators in community justice centers outside the courts, now mediation is a line of business for lawyers whose customers are sent to them by the courts. Whereas once dispute resolution theorists called on courts to provide a variety of procedural choices for civil disputants, now courts order litigants to mediate and sanction them when they refuse to do s

Merton and the Hot Tub: Scientific Conventions and Expert Evidence in Australian Civil Procedure

Recently in Australia, common-law judges began to modify the way expert evidence is prepared and presented. Judges from a range of civil jurisdictions have conscientiously sought to reduce expert partisanship and the extent of expert disagreement in an attempt to enhance procedural efficiency and improve access to justice. One of these reforms, concurrent evidence, enables expert witnesses to participate in a joint session with considerable testimonial latitude. This represents a shift away from an adversarial approach and a conscientious attempt to foster scientific values and norms. Here, Edmond describes how changes to Australian civil procedure, motivated by judicial concerns about the prevalence of partisanship among expert witnesses, may have been enfeebled because they were based upon enduring scientific conventions such as the ethos of science

Merton and the Hot Tub: Scientific Conventions and Expert Evidence in Australian Civil Procedure

Recently in Australia, common-law judges began to modify the way expert evidence is prepared and presented. Judges from a range of civil jurisdictions have conscientiously sought to reduce expert partisanship and the extent of expert disagreement in an attempt to enhance procedural efficiency and improve access to justice. One of these reforms, concurrent evidence, enables expert witnesses to participate in a joint session with considerable testimonial latitude. This represents a shift away from an adversarial approach and a conscientious attempt to foster scientific values and norms. Here, Edmond describes how changes to Australian civil procedure, motivated by judicial concerns about the prevalence of partisanship among expert witnesses, may have been enfeebled because they were based upon enduring scientific conventions such as the ethos of science

Persistent Nonviolent Conflict With No Reconciliation: The Flemish and Walloons in Belgium

Mnookin and Verbeke describe the nonviolent but very serious conflict in Belgium between the Flemish (Dutch) of the North and the Walloons (French) of the South. The Flemish economy is more prosperous than the Walloon economy, and the Flemish constitute a majority of the Belgian population. Nevertheless, the Walloons enjoy a financial subsidy from the Flemish and share equally in the political power of the nation due to antimajoritarian restrictions built into the government structure. Even though significant and persistent, this conflict remains nonviolent due to several factors, including largely separate geography, language and social structure; a low-stakes conflict; relatively small wealth disparities; a federal system largely enabling separate political systems; and a pragmatic tradition. Mnookin and Verbeke argue that the disputants can continue to coexist with a civilized separation short of divorce. They further point out that the very factors that help keep this conflict nonviolent also serve to provide little incentive to work toward a more cooperative relationship

Disputants\u27 Decision Control in Court-Connected Mediation: A Hollow Promise Without Procedural Justice

Professor Deborah Hensler suggests in the lead article of this Symposium issue that the courts\u27 embrace of facilitative, interest-based mediation may have been ill-conceived. She argues that there is insufficient evidence to conclude that litigants are more satisfied with mediation than with adjudicative alternatives such as arbitration and trial. She also urges that there is sufficient evidence to show that litigants prefer processes that vest decision control in third parties. Both of these assertions are subject to challenge,\u27 but this Comment will focus upon the significance of giving decision control to the disputants in consensual processes. Using available research, this Comment will argue, perhaps surprisingly, that the salience of the disputants\u27 decision control is much more apparent to mediation advocates and to courts than it is to disputants. Disputants involved in consensual processes often do not perceive themselves as wielding real control over the outcomes achieved in those processes. Thus, the current practice of distinguishing and prioritizing among dispute resolution processes based primarily upon the locus of decision control may be misguided. Further, vesting decision control in the disputants does not guarantee that the disputants will perceive the dispute resolution process or its outcome as fair. To the contrary, the procedural justice literature demonstrates that, regardless of their decision control, disputants consistently value processes that feel fair because they offer a meaningful opportunity for voice and consideration and assure even-handed, dignified treatment. The literature makes it clear that disputants\u27 perceptions of procedural fairness influence their perceptions of outcome fairness. Indeed, disputants\u27 perceptions of procedural fairness may even influence their evaluation of their own control over outcomes. This suggests that courts need to focus quite intently upon the institutionalization of third party processes that are procedurally just, regardless of whether those processes are classified as consensual or non-consensual. Such a uniform commitment to procedural justice might seem natural for the courts. However, the procedural due process jurisprudence indicates that the courts\u27 appreciation of procedural justice is unlikely to translate easily to processes in which the disputants, not the courts, are deemed to exercise control over outcomes. Given the current state of procedural due process jurisprudence, courts may lack both the desire and the ability to demand procedural justice in third party processes that are classified as consensual. Ironically then, disputants\u27 decision control, which is meaningful to mediation advocates and the courts but a rather hollow promise for disputants, may have the unfortunate effect of hindering the institutionalization of procedural justice in consensual, court-connected processes