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Theory and Practice of Mediation Representation
No full textThese days, American attorneys regularly represent clients in mediation. This representation is a complex process, and attorneys and law students need guidance about how to serve clients well in this context. This article offers a theoretical framework for analyzing mediation representation based on Real Practice System Theory. It reviews books that outline elements of mediation representation and identify practical techniques that attorneys can use when representing clients in mediation. It supplies several suggestions for faculty who teach mediation, including teaching courses combining the perspectives of both mediators and mediation representatives
The Rhetoric of Abortion in Amicus Briefs
Get PDFThe amicus briefs filed in landmark abortion cases before the U.S. Supreme Court serve as a barometer revealing how various constituencies talk about abortion, women, fetuses, physicians, rights, and harms over time. This article conducts an interdisciplinary legal-linguistic study of the amicus briefs that were filed in the milestone abortion cases of Roe v. Wade, Doe v. Bolton, Planned Parenthood v. Casey, and Dobbs v. Jackson Women’s Health. As the first large-scale study of all amicus briefs submitted in these key cases, this article identifies the roles of amicus briefs, analyzes their rhetorical strategies, and describes how their authors engage with the Court. Using quantitative and qualitative methods, the study reveals how the discursive construction of the pregnant person, fetus, physician, and abortion as a right have evolved over fifty years and shows why these shifts matter. In so doing, this study offers historical perspectives into evolving arguments in abortion litigation, contemporaneous insights into the status of polarized abortion politics, and future implications for amicus activity and abortion advocacy
Turning From a Hire Power: Employment Discrimination and Faulty Ninth Circuit Procedure
Get PDFYou just applied for your dream job. As anticipation for a response amounts, you become overwhelmed with a sense of optimism. You know you are overqualified, yet a few days later, you receive notification that the employer is no longer considering you for the position. Despite meeting all requisite qualifications, you feel slighted. You wonder if another factor is at play. Conversely, imagine you actually get the job. You accept, and you work at the company for a few years only to one day have your boss inform you that your employer is terminating your employment. Again, you feel slighted. This seems unfair. You have been working hard in your role while consistently receiving positive feedback on work assignments. At this point, your qualifications become irrelevant, as your termination hinges entirely on something else: your job performance
Alternative Dispute Resolution in Agency Administrative Programs
Get PDFThis Article studies how federal agencies use and might better use different types of alternative dispute resolution (ADR)—including mediation, conciliation, facilitation, factfinding, minitrials, arbitration, and the use of ombuds—in the programs Congress has entrusted them to administer. The use of ADR by the executive branch of the federal government to resolve disputes with or among private actors has deep historical roots. ADR related to managerial agency matters such as employment or procurement is well-established across the government and performed under a uniform set of laws. Much less has been known, however, about the scope and reach of ADR in the execution of government programs entrusted to agencies by Congress, including regulatory enforcement, adjudication of claims, and administering benefits or reimbursing services such as provider fees. This Article begins to fill that gap
Exempting the FMLA from Forced Arbitration: The Need for Special Consideration of Pregnant and Working Mothers to Achieve Gender Equality in the Workplace
Get PDFPregnant and working mothers face a multitude of challenges when making decisions that pertain to their health, children, and their livelihoods. Historically, women have encountered numerous barriers regarding their entrance and treatment in the United States labor force as a result of gender discrimination that promotes the idea that women, in their inherent ability to become mothers, renders them inadequate or inferior workers in comparison to men. Unfortunately, such archaic notions of gender roles persist still; today, the reality is that women are more likely to be employed part-time, occupy lower-paid roles, and are less likely to take on managerial positions. Despite such barriers erected by invidious gender discrimination, currently, mothers make up nearly one-third of all employed women in the United States labor force
Calvinball in Cole County:State ex rel. Fitz-James v. Bailey
Get PDFIn the comic strip Calvin and Hobbes, the titular boy and tiger often play a game called Calvinball. There is only one rule to Calvinball: The game cannot be played the same way twice. In one strip, Calvin and Hobbes try to play football. Hobbes yells, “The center snaps the ball to the quarterback.” Calvin retorts, “No he doesn’t! He’s secretly the quarterback for the other team! He keeps the ball!” The game descends into chaos. At the end of the strip, Calvin says, “Sooner or later, all our games turn into Calvinball.” Much like the rules of Calvinball, the rules for submitting a ballot initiative in Missouri are complex and ripe for abuse, and they never seem to play out the same way twice. Article III, Section 49 of the Missouri Constitution provides a constitutional right to ballot initiative and referendum. Prior to a public vote, a Missouri ballot initiative must go through an extensive approval process—all before proponents can even gather the requisite signatures. Step one: The initiative’s proponent must submit a sample sheet to the Secretary of State. Step two: The State Auditor must prepare a fiscal note summary that summarizes the initiative’s estimated cost or savings. Step three: The Secretary of State must prepare a summary statement. Step four: The Attorney General must approve the fiscal note summary’s legal content and form. Step five: The Secretary of State must certify the official ballot title, which contains the summary statement and fiscal note summary. Even if all five steps are functioning properly, this entire process can take up to fifty-one days. Then, and only then, can the proponent start gathering signatures. Due to the lengthy and bureaucratic process, state officials who oppose an initiative can delay signature gathering and effectively block it entirely
Merchants in Shakespeare’s The Merchant of Venice: A Transactional Analysis
Get PDFShakespeare’s The Merchant of Venice is a play with multiple merchants engaged in multiple transactions with multiple motives. The key characters – Shylock, Antonio, Bassanio, Portia, Jessica, Lorenzo, Nerissa, Graziano, and the Duke – are involved in one sort of business dealing or another. Indeed, there are 10 specific transactions: one finance transaction; one international trade transaction; one gastronomic transaction; two inheritance transactions; three marriage transactions; and two legal entrepreneurship transactions. In these deals, commerce and love are almost indistinguishable, and justice and mercy clash. Thus, lawyers can analyze the drama from a transactional perspective, and spot issues they encounter, directly or by analogy, in everyday practice
Irreconcilable: McDonnell Douglas and Summary Judgment
Get PDFThe McDonnell Douglas framework is the most important analytical structure in employment discrimination law. Scholars and judges have regularly criticized the three-part burden-shifting test. Despite decades of criticism, a central feature of the framework remains unexamined - its second step is incompatible with the summaryjudgment standard.
In employment discrimination cases courts often grant summaryjudgment in the employer\u27s favor. Scholars have offered various accounts of why this happens, including docket pressures and published case law that focuses on grants of summary judgment. The second step of the inquiry has largely escaped scrutiny because it appears to be a quirky, but somewhat harmless, part of the McDonnell Douglas framework.
This Article demonstrates that the conventional view of the second step is wrong. When a defendant files a motion for summary judgment, a court must draw all reasonable inferences in favor of the plaintiff, the non-moving party. The second step of McDonnell Douglas requires courts to credit the employer\u27s reason for acting and give it a certain weight and legal effect in discrimination analysis. It also labels an employer\u27s reason for acting as legitimate and non-discriminatory even though the defendant is not required to establish either proposition. Even when a defendant\u27s reason does not respond to the plaintiff\u27s theory of the case, courts still credit the employer\u27s reason.
The year 2023 marks the fiftieth anniversary of McDonnell Douglas. Yet, no one has recognized what has been hiding in plain sight for decades: the second step cannot be reconciled with the summaryjudgment standard. The second step alters discrimination analysis in ways that deny plaintiffs their right to have juries decide contested cases