March 10, 2014
Professor Paul Kirgis has a new article on SSRN, entitled, Status and Contract in an Emerging Democracy: The Evolution of Dispute Resolution in Ghana. The article has been accepted for publication in the Cardozo Journal of Conflict Resolution. Here’s the abstract:
Ghana is one of the developing world’s success stories. The first sub-Saharan colony to gain independence, it is a stable democracy experiencing sustained economic growth. Yet as Ghana reaches for the material gains of participation in modern commercial life, its dual legal systems—the system of customary adjudication by traditional authorities and the formal court system—have come under increasing pressure. New legal developments have truncated the authority of traditional decision-makers, while an overburdened court system lacks the resources to fill the resulting adjudicative gaps. To solve the problem, Ghana is now experimenting with a system of quasi-public dispute resolution, including contractual arbitration and court-connected mediation. If successful, this experiment could provide a model for other emerging democracies seeking to promote greater access to justice while integrating traditional and national adjudicative structures.
March 8, 2014
The New York Times published Professor Jeff Sovern’s letter to the editor supporting enactment of laws obliging information data brokers to disclose to consumers the information they collect about them. The letter, which is a response to Jo Nocera’s op-ed, The Wild West of Privacy, states in part:
Acxiom, a company that tells consumers what data it has collected about us, reports incorrectly all of the following: my income; whether I live with children; that I own a truck; that I have bought art, antiques, jewelry, bathroom furnishings, window treatments and golf products; and that I am interested in fine cooking, crafts, collecting antiques and golf. (Acxiom thinks that I’m much more fun than I am.)
It accurately reports my ethnicity, birthday, marital status, political party and lots of other information about me.
I wonder what other companies know about us, how much of it is incorrect, and to whom they provide the information. What consequences flow from the incorrect records? Why should strangers be able to buy private information about us without our knowledge, and what do they do with the information they collect?
March 7, 2014
Yesterday, the Public Investors Arbitration Bar Association (PIABA) issued a report co-authored by Christine Lazaro, Acting Director of the Law School’s Securities Arbitration Clinic, on flaws in the Financial Industry Regulatory Authority’s BrokerCheck disclosure system. The PIABA report issues the following warning:
The information that FINRA omits in its reports is objectively important to investors seeking to make an informed decision about selecting a broker. The result is that consumers who use the BrokerCheck system to conduct their due diligence may make an incorrect assumption that all relevant information has been disclosed and may opt to rely on a broker they would have avoided had they known more information.
The report has been covered in various new outlets, including Forbes, Reuters, WSJ online, and CNBC.com. In one online article, Lazaro explains, “[i]f an investor relied solely on a BrokerCheck report, they may be misled into believing that the broker left on amicable grounds.”
March 7, 2014
On February 27, 2014, Professor Paul Kirgis presented his article, Bargaining with Consequences: Leverage and Coercion in Negotiation, at the Quinnipiac-Yale Dispute Resolution Workshop. Here’s an abstract of the article which will be published later this year in Harvard Negotiation Law Review:
Leverage has been called “negotiation’s prime mover,” conferring power to reach agreement “on your terms.” This power, however, is not always benign. When a negotiator has sufficient power to compel a counterparty to accept a set of unfavorable terms, the use of leverage may cross a line into inappropriate or illegal coercion. While coercion has been the subject of rich philosophical investigation, the topic of coercive power has received only cursory treatment in the negotiation literature. This article seeks to fill that gap by analyzing the uses and limits of negotiating leverage, which I define as power rooted in consequences. I identify two types of leverage—positive and negative—and explore the legal and ethical implications of each type, drawing on the political theory of coercion as well as primary and secondary legal sources. I conclude by analyzing the contract doctrines of duress and unconscionability to show how an understanding of leverage can aid in the application of legal rules.
- Paul Kirgis
March 7, 2014
Christopher Borgen, Professor and Associate Dean for International Studies, has written a series of blog posts on Opinion Juris about the current crisis in Ukraine. The most recent post involves the Crimean parliament’s decision to secede Crimea from Ukraine to join Russia through the use of a parliamentary vote and a referendum. Here’s an excerpt:
The legal issue here is really one of Ukrainian Constitutional law more than of international law, because, as it is generally understood, there is no right to secede under international law. Under international law, a secession is neither a right nor necessarily illegal. It is treated as a fact: a secession either was successful, it was not, or it is still being contested.
There is, however, a right to self-determination, which is understood to be, for communities that are not colonies and are within existing states, meaningful political participation and the pursuit of economic, social and cultural development under the auspices of that existing state, in this case Ukraine. This conception of internal self-determination makes self-determination closely related to the respect of minority rights and it does not include a right to dismember an existing state. Furthermore, modern views of self-determination also recognize the “federalist” option of allowing a certain level of cultural or political autonomy as a means to satisfy the norm of self-determination.
You can also read Professor Borgen’s earlier posts about the background of the conflict and sanctions, Russian intervention in Ukraine, and who speaks for Ukraine.
March 6, 2014
Adjunct Professor Jonathan Sack has co-authored an article with Elkan Abramowitz in the New York Law Journal, entitled, Are We Criminalizing Politics as Usual? The article discusses the recent indictment of former Virginia Governor Robert McDonnell and his wife, Maureen McDonnell, for conspiracy to commit honest services fraud and three substantive counts of honest services fraud. Professor Sack is a member of Morvillo Abramowitz Grand Iason & Anelloco and a former chief of the criminal division in the U.S. Attorney’s Office for the Eastern District of New York. He also teaches White Collar Crime in the law school’s evening program with Eric Corngold . Here’s an excerpt of the article:
The law recognizes that politicians need support to run for office and govern, and will in turn try to help their supporters and constituents. The law also contemplates that some exchanges cross the line from politics as usual to criminality. Where the line is drawn is important. If drawn too narrowly, we risk selective criminal prosecutions of political adversaries—worsening an already harsh and exceedingly partisan public life. If drawn too broadly, we risk tolerance of corruption—worsening the already low regard in which our public servants are held. In the prosecution of the McDonnells, the government has drawn a line. The court and possibly a jury will draw their own. In our view, much is at stake.
March 4, 2014
This past Friday and Saturday, Jeremy Sheff, Associate Professor of Law, participated in the Trademark Scholars Roundtable at the University of Texas School of Law. The Roundtable is an annual forum where a select group of the world’s leading scholars of trademark law convene to discuss a particular issue of present importance. This year’s topic was “The Territorial and Product Market Dimensions of Trademark Law.” You can find a summary of the proceedings in three successive posts at Rebecca Tushnet’s blog, here, here,and here.
March 3, 2014
Professor Elayne Greenberg, Assistant Dean for Dispute Resolution Programs at St. John’s University School of Law, Director of the Hugh L. Carey Center for Dispute Resolution, and former chair of NYBSA’s Committee on Alternative Dispute Resolution was quoted in the New York Commercial Litigator Insider on the proposed mandatory mediation pilot program in New York County’s Commercial Division. Although, Professor Greenberg is in favor of increasing the use of mediation and applauds the New York courts’ effort, she expressed concern that “the randomness of the referral undermines the importance of referring appropriate cases to the appropriate ADR process and diminishes the likelihood that the mediation referral will be a meaningful one.” Here’s an excerpt:
“The idea of one in five doesn’t deal with the real issue of trying to encourage more cases to go into mediation. If there is still resistance by judges who don’t understand which cases would be appropriate or don’t feel comfortable ordering people into mediation, let’s deal with that resistance in a more meaningful way,” she said. “And if there are lawyers who are reluctant to bring their cases into mediation, let’s educate these lawyers and address their concerns.”
“Ideally, in the perfect world for all dispute resolution, the ethical underpinning is party self-determination,
party choice,” Greenberg added. “If people are informed, educated and understand the opportunities
mediation provides, they’re more likely to want to use mediation. For lawyers, the mediation process
provides a welcome opportunity to minimize risks and shape outcomes.”