Why the Haves Come Out Further and Further Ahead: The Repeat Player Effect, Control over Dispute System Design, and Justice

Let’s start at the beginning of the yellow brick road that led to the Repeat Player Effect paper. I skipped my senior year of high school to attend a women’s college (Smith) and double-majored in ancient Greek and philosophy, on account of which (cf. Sleepless in Seattle...

Commercial Arbitration

This article assesses the structure and the process of commercial arbitration, which are determined by the different institutional contexts in which it arises. The simplest institutional context or setting is when two persons in a contract delineating a business relationship agree to settle any disputes that may arise under the contract by resort to arbitration before named arbitrators or persons to be named at the time of the dispute. A second type of arbitration arises within the context of a particular trade association or exchange. The third setting for commercial arbitration is found in administrative groups, such as the American Arbitration Association, which provide rules, facilities, and arbitrators for any persons desiring to settle disputes by arbitration. The article then distinguishes between those factors that can be said to produce a need for arbitration machinery in commercial groups and those factors that merely make it desirable.

The New Federal Arbitration Law

This article focuses on the federal arbitration law. On February 12, 1925, President Calvin Coolidge signed the United States Arbitration Law, which became effective on January 1, 1926. This act reversed the hoary doctrine that agreements for arbitration are revocable at will and are unenforceable, and in the language of the statute itself, they are made “valid, enforceable and irrevocable” within the limits of federal jurisdiction. There are three evils which arbitration is intended to correct: (1) the long delay usually incident to a proceeding at law, in equity or in admiralty, especially in recent years in centers of commercial activity, where there has arisen great congestion of the court calendars; (2) the expense of litigation; and (3) the failure, through litigation, to reach a decision regarded as just when measured by the standards of the business world. The article then argues that the proposed law rests upon the constitutional provision by which Congress is authorized to establish and control inferior federal courts. It also contends that sound public policy demands specific enforcement of arbitration agreements by the law.

The New Federal Arbitration Law: A Call to Ethical Practice Not Yet Realized

The 1926 essay about the Federal Arbitration Act (FAA) authored by Julius Henry Cohen and Kenneth Dayton contains numerous insights into the purposes of arbitration, the promise of the FAA, and the intent of Congress in enacting the legislation. But tucked into this essay is also a statement about lawyer self-interest potentially leading them away from counseling clients to draft arbitration clauses or using arbitration services out of risk of earning lower fees....

Counseling about More Than the Law

At the end of Professor Menkel-Meadow’s landmark article, she notes “the attraction of the problem-solving approach to negotiations is that it returns the solution of the problem to the client and forces the lawyer to perform her essential role in the legal system—that of solving problems” (p. 841). While most view this article as a call to change the mindset of lawyers to engage in the problem-solving method of negotiation, I want to focus on its underlying message—a lawyer’s essential role includes counseling about more than the law. In fact, as this article was being written in the early 1980s, the Kutak Commission added Model Rule 2.1, authorizing attorneys to counsel clients about the consequences of their actions beyond the law. Professor Menkel-Meadow gives us the road map to do that. Moreover, Professor Menkel-Meadow’s explanation is even more compelling, because it is based on a shift in mindset and is the first to utilize interdisciplinary literature....

Panacea or Corporate Tool?: The Sequel

It seems so long ago. Rereading my article, now more than twenty years later, is like rewatching the beginning of an old long war movie. I was so young, optimistic, and naive. When I wrote the article I saw myself as something of a prophet Isaiah, crying in the wilderness. My goal was to alert the world to the dangers I saw in the then-new phenomenon of mandatory contractual arbitration, and to fight back against that phenomenon. I thought, or at least hoped, that if I alerted the world to the dangers I saw, surely someone would step in to protect consumers and employees. Instead, while the world has certainly been alerted, so far corporate use of mandatory arbitration remains largely unchecked and indeed has expanded beyond what I ever imagined in my worst nightmares. One recent study found that more than 50 percent of nonunion employees have been deprived of their right to sue their employer in court, and we all know that mandatory arbitration is rampant in the consumer setting. In addition, companies have used mandatory arbitration to insulate themselves from class actions in many contexts....

Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change

This article proposes some conjectures about the way in which the basic architecture of the legal system creates and limits the possibilities of using the system as a means of redistributive change. Specifically, the question is under what conditions litigation can be redistributive, taking litigation in the broadest sense of the presentation of claims to be decided by courts. Because of differences in their size, differences in the state of the law, and differences in their resources, some of the actors in society have many occasions to utilize the courts; others do so only rarely. One can divide these actors into those claimants who have only occasional recourse to the courts (one-shotters) and repeat players who are engaged in many similar litigations over time. The article then looks at alternatives to the official litigation system.

CommentsBargaining in the Shadow of the Law: The Case for ADR as a Field of Study

Mnookin and Kornhauser’s Bargaining in the Shadow of the Law is a critically important work for the alternative dispute resolution (ADR) field because it legitimized the study of negotiation within the legal academy. It did so by tethering bargaining to jurisprudence. Without Mnookin and Kornhauser’s insight that bargaining is a function of legal rules, the law remains confined to its portrayal in a standard first-year curriculum....

CommentsRethinking the Debunking: On Arbitration Myths, Preferences, and Legal Theory

Early in her academic career, Professor Jean Sternlight identified and critiqued what she called the Supreme Court’s “preference for binding arbitration” over litigation. She published Panacea or Corporate Tool?: Debunking the Supreme Court’s Preference for Binding Arbitration in 1996 in an attempt to “debunk” that preference. This commentary engages in a Sternlightian exercise, assessing the success (or failure) of her own debunking. Ultimately, though her article did not alter the Court’s preference, it laid the groundwork for future scholars to infuse concepts of justice and fairness into the debate about mandatory arbitration....

Just Settlement? Rethinking the Mediator’s Goals

Lawrence Susskind (1981) famously argued mediation’s success should be judged by the agreement’s basic fairness or justice. Josh Stulberg (1981) responded that settlement, and not justice, is the mediator’s goal (pp. 88, 97, 100–101, 103, 105, 106). In order to achieve settlement, the process must provide self-determination to the parties, that is, be voluntary and noncompulsory, which requires the mediator to be impartial and not focus on the fairness of the outcome (pp. 86, 88–91)....