Bargaining in the Shadow of (International) Law: What the Normalization of Adjudication in International Governance Regimes Means for Dispute Resolution

After examining the similar goals and values that drive the simultaneous increase in international trials and the decrease in U.S. trials, the article then examines the challenges international adjudication poses to dealing with human rights violations and transitional justice situations. Simplistically, these tensions can be viewed as the need to strike a balance between peace and justice, top-down implementation and bottom-up impact, and process efficiency and conflict customization. The good news is that these challenges have been slowly working themselves out as the next generation of international adjudication models continues to improve. This continued improvement and normalization leads to an even more interesting question - what are the possibilities for human rights adjudication in the future? What happens when countries and individuals are bargaining in the shadow of international law? The last part of this article, looking through the lens of dispute resolution theory, addresses at least two intriguing developments that could occur in the next ten years. The first development might be the normalization of consensual international processes that mirror, at least to some degree, U.S. process. After moving away from negotiation toward judicialization of international disputes, the pendulum might start to swing back toward negotiated settlements. Will individual defendants be more likely to plea bargain (as has already occurred)? Will states be willing to work out settlements with their human rights victims prior to trial? Given the potential risks involved in these developments, the international community needs to be vigilant so that the rule of law, rights, and equality are still protected through these consensual dispute resolution processes. Second, the shift to broad community reparations like health care and education ordered by tribunals and truth commissions opens up a new chapter in more appropriate remedies for human rights victims

Carrie Menkel-Meadow: Dispute Resolution in a Feminist Voice

The presence of women in the law has changed the law’s substance, practice, and process. Carrie Menkel-Meadow, whose scholarship centers on this theme, is one such revolutionary woman. Professor Menkel-Meadow, who I am proud to call my colleague, co-author, and friend (hereinafter referred to as Carrie), began her career in 1977 with a series of simple questions that sparked a breathtaking body of work. Carrie probed the depth of male domination in the realm of law and wondered what changes female representation might engender. In particular, she focused her inquiry on the value orientation each respective gender might bring to the law: To what extent are the legal institutions we deal with male-dominated, both in the values they reflect and the manner or means used to express those values? To what extent might the expression of feminine or female values, principles and qualities both in the ends desired and the means used to express those ends alter our legal institutions? How does the increased participation of women in these legal institutions move us toward or away from the realization of feminine values in the law? Over 40 years, Carrie elaborated on these questions to develop a thorough and wide-ranging feminist jurisprudence. This Essay attempts to do justice to her work. Part II recapitulates her account of the feminization of the law: the way that feminine values affect the substance of the law; the way that we practice and learn law; and the process of law, especially in the area of Carrie’s other love—dispute resolution. In particular, Carrie used a key narrative to illustrate competing approaches to problem-solving. Spurred by Carol Gilligan’s reanalysis of psychology studies, Carrie dove into the moral dilemmas used in psychology and recast the story of Amy and Jake (where they wrestle over the dilemma of whether to steal drugs to save a life) as a lesson in problem-solving. Throughout her writings, Carrie advocated for a feminine ethic of care to have equal footing with the more traditional (masculine) ethic of justice that has been hallowed in law. Part III of this Essay uses a different narrative from Carrie’s scholarship to illustrate the application of the feminization of the law. In the case of Ziba—a hypothetical mediation between an underage bride and her controlling husband, Ahmed—we see how Carrie’s own passions for feminism and dispute resolution collide in the mediation process she typically champions. Ultimately, Carrie’s treatment of the case puts into practice the ethic of care developed within her feminist jurisprudence

Dean Melanie Leslie’s Office Hours

Join Dean Leslie for office hours. Her invited guests will include Professor Andrea Schneider, Director of the Kukin Program for Conflict Resolution, and two visiting scholars, Nargis Baran and Dmytro Vovk, both of whom come to Cardozo after fleeing the violence of wars in their home countries.https://larc.cardozo.yu.edu/event-invitations-2023/1034/thumbnail.jp

Using the Theories of Exit, Voice, Loyalty, and Procedural Justice to Reconceptualize Brazil’s Rejection of Bilateral Investment Treaties

In the past decade, investor-state arbitration has made tremendous gains in both credibility and use. There is now widespread accession to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. States have executed more than 2,000 bilateral investment treaties (BITs) defining the terms and conditions under which one (“investor”) state’s nationals and companies will invest in the other (“host”) state. Such terms include provisions allowing foreign investors to initiate arbitration proceedings against the host state, and at this point, more than 500 disputes have been submitted to investor-state arbitration. There is, however, one very notable example of a rapidly developing state that has rejected this system of international dispute resolution in favor of nation-level structures. That example is the largely industrialized state of Brazil. This Article begins by describing the economic and political context within which Brazil began its consideration of BITs. Then, this Article recounts Brazil’s history with BITs in some detail and examines alternative investment protection legislation adopted in Brazil. This Article then turns to Hirschman’s theory of exit, voice, and loyalty, as well as the theories and research of procedural justice, to apply them to Brazil’s history with BITs and to consider the particular relationship between procedural justice and loyalty. Ultimately, the Article urges that Hirschman’s theory and the theories and research regarding procedural justice encourage a reconceptualization of Brazil’s alleged “failure” in choosing not to ratify the BITs that had been negotiated by its diplomats

Subthalamic beta band suppression reflects effective neuromodulation in chronic recordings

Background and purpose: Biomarkers for future adaptive deep brain stimulation still need evaluation in clinical routine. Here, we aimed to assess stimulation-induced modulation of beta-band activity and clinical symptoms in a Parkinson's disease patient during chronic neuronal sensing using a novel implantable pulse generator. Methods: Subthalamic activity was recorded OFF and ON medication during a stepwise increase of stimulation amplitude. Off-line fast fourier transfom -based analysis of beta-band activity was correlated with motor performance rated from blinded videos. Results: The stepwise increase of stimulation amplitude resulted in decreased beta oscillatory activity and improvement of bradykinesia. Mean low beta-band (13-20 Hz) activity correlated significantly with bradykinesia (ρ = 0.662, p < 0.01). Conclusions: Motor improvement is reflected in reduced subthalamic beta-band activity in Parkinson's disease, supporting beta activity as a reliable biomarker. The novel PERCEPT neurostimulator enables chronic neuronal sensing in clinical routine. Our findings pave the way for a personalized precision-medicine approach to neurostimulation

Reinforcement magnitudes modulate subthalamic beta band activity in patients with Parkinson's disease

We set out to investigate whether beta oscillations in the human basal ganglia are modulated during reinforcement learning. Based on previous research, we assumed that beta activity might either reflect the magnitudes of individuals' received reinforcements (reinforcement hypothesis), their reinforcement prediction errors (dopamine hypothesis) or their tendencies to repeat versus adapt responses based upon reinforcements (status-quo hypothesis). We tested these hypotheses by recording local field potentials (LFPs) from the subthalamic nuclei of 19 Parkinson's disease patients engaged in a reinforcement-learning paradigm. We then correlated patients' reinforcement magnitudes, reinforcement prediction errors and response repetition tendencies with task-related power changes in their LFP oscillations. During feedback presentation, activity in the frequency range of 14 to 27 Hz (beta spectrum) correlated positively with reinforcement magnitudes. During responding, alpha and low beta activity (6 to 18 Hz) was negatively correlated with previous reinforcement magnitudes. Reinforcement prediction errors and response repetition tendencies did not correlate significantly with LFP oscillations. These results suggest that alpha and beta oscillations during reinforcement learning reflect patients' observed reinforcement magnitudes, rather than their reinforcement prediction errors or their tendencies to repeat versus adapt their responses, arguing both against an involvement of phasic dopamine and against applicability of the status-quo theory

Dopamine-dependent scaling of subthalamic gamma bursts with movement velocity in patients with Parkinson’s disease

Gamma synchronization increases during movement and scales with kinematic parameters. Here, disease-specific characteristics of this synchronization and the dopamine-dependence of its scaling in Parkinson’s disease are investigated. In 16 patients undergoing deep brain stimulation surgery, movements of different velocities revealed that subthalamic gamma power peaked in the sensorimotor part of the subthalamic nucleus, correlated positively with maximal velocity and negatively with symptom severity. These effects relied on movement-related bursts of transient synchrony in the gamma band. The gamma burst rate highly correlated with averaged power, increased gradually with larger movements and correlated with symptom severity. In the dopamine-depleted state, gamma power and burst rate significantly decreased, particularly when peak velocity was slower than ON medication. Burst amplitude and duration were unaffected by the medication state. We propose that insufficient recruitment of fast gamma bursts during movement may underlie bradykinesia as one of the cardinal symptoms in Parkinson’s disease