"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Monday, May 24, 2010

SSRN Articles

Mark C. Weidemaier, Toward a Theory of Precedent in Arbitration

Abstract:
The claim that arbitrators do not create precedent recurs throughout the arbitration literature. As an empirical matter, however, it is increasingly clear that, in some arbitration systems, arbitrators often cite to other arbitrators, claim to rely on past awards, and promote adjudicatory consistency as an important system norm. Much like courts, then, arbitrators can (but do not always) create precedent that guides future behavior and provides a language in which disputants, lawyers, and adjudicators can express and resolve grievances. This Article provides a theoretical foundation for understanding the conditions under which such precedent will (or will not) arise. It identifies three considerations that may account for the development of precedent across a range of arbitration systems: (1) whether the arbitration system is structurally conducive to the creation of precedent; (2) whether arbitral precedent functions to fill gaps in (or displace) state-supplied law; and (3) whether arbitrators are likely to be viewed as legitimate producers of law in the relevant context. After explaining the relevance of these considerations, the Article explores how they might apply in different arbitration contexts and sets forth a research agenda capable of shedding light on arbitration not only as a mechanism for resolving disputes, but also as a mechanism for generating robust systems of privately made law.

Aura Esther Vilalta, The Culture of Dialogue and Relational Justice as a 'Third Path'

Abstract:
The "third path" of justice would constitute a theoretical approach and a proposal. Having ascertained the exhaustion of exclusive systems - in the social, economic, political, thought and justice areas - the formal structuring of a model of justice is proposed, which, without foregoing the positive aspects of the current justice administration system, is built on the foundations of free will, trust, knowledge and technological development. This brief treatise deals with programme lines and courses of action of ADR/ODR - alternative methods or processes for dispute resolution for the catalytic controversies of a phenomenon which has spontaneously emerged -with the aim of yielding elements capable of formulating this new system, a synthesis of two which, paradoxically, were operative until fairly recently.

Jean R. Sternlight, Lawyerless Dispute Resolution: Rethinking a Paradigm

Abstract:
Do participants in mediation and arbitration have attorneys? Do they need them? Although the phenomenon of pro se litigation has received substantial attention in recent years, few commentators or policymakers have focused on these questions. The failure to focus on the possible need for representation in mediation and arbitration is based on an often unstated premise that because ADR processes are purportedly non-adversarial or less adversarial than litigation, disputants need representation less in ADR than they do in litigation. This Article suggests that the failure to focus on the possible need for representation in mediation and arbitration is fundamentally misguided. It is wrong to assume that representation is always more important or necessary in litigation than in ADR processes. Mediation and arbitration can often be quite formal , adversarial, and complex. Moreover, lawyers are not necessarily more important in complex than in simple cases. Attorneys are also needed to balance power inequalities and provide emotional support or voice to their clients. After considering relevant social science research on these points the Article provides some practical suggestions for courts, legislators, and legal services providers.

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