Forthcoming Articles

Volume 18: Issue 1 Abstracts

“Realizing Dispute Resolution: Meeting the Challenges of Legal Realism Through Mediation” by Robert Rubinson

Recent decades have seen an explosion of interest in legal realism and mediation. At first glance, they appear not to have much to do with each other, with legal realism being a theory of jurisprudence and mediation being a form of alternative dispute resolution. In fact, they are closely aligned. 
The realist movement flowered in the early 1930s and its continuing power has led scholars in recent years to herald the coming of a “new legal realism.” Realism developed a range of insights that reject the idea of law as an exercise in logic. Realism holds that legal analysis and logic are ex post facto justifications for conclusions already arrived at. From a realist perspective, judges reach decisions through subconscious motivations, whether based on politics, psychology, or individual experience. Realists also argue that law arises in social and individual contexts in a particular way—a granular view focused on how law affects actual human beings.

Mediation has similarly generated an exhaustive literature of increasing volume and complexity. Mediation is profoundly different from adjudication. One fundamental difference is that it shifts the focus of decision-making from judges to the disputants themselves. Disputants exchange perspectives and develop their own norms—whether “legal” or not—to form the basis for settlement. As a result, there is no need to conduct legal analysis, or to apply facts to law, or for judges to reach “right” results. Mediation enables disputants to engage in ways of resolution of their own choosing.

Mediation thus represents realism in action. Both focus on the specifics of what happens “on the ground.” Both have a long history of interdisciplinary research. Both focus on the limitations and uncertainties—if not dangers—of adjudication. However, while realism has successfully developed a powerful critique, the realists have had much greater difficulty crafting an affirmative program that resolves the issues their critique identifies. In many ways, mediation is that affirmative program.

This Article, then, explores how mediation provides insights and answers to the enduring challenges realism first posed over eighty years ago. The Article does so in four sections. The first two sections describe the foundations of realism and mediation. The third section traces how mediation furnishes ways to answer the critique that realism is a “dead end” that, while powerful, does not offer a means to remedy what it critiques. The final section identifies areas where mediation does not provide all the answers to realism. The most important of these is ameliorating challenges low-income disputants face when engaged in all forms of dispute resolution.

Hyatt v. Franchise Tax Board of California: Perils of Undue Disputing Zeal and Undue Immunity for Government-Inflicted Injury” by Jeffrey Stempel

Twenty years ago, California reacted with suspicion to inventor Gilbert Hyatt’s move to Nevada, concluding that he had not actually changed his residency to Las Vegas in time to avoid millions in state taxes based on a lucrative patent assignment. So convinced was California, it engaged in highly questionable shadowing of Hyatt (including dumpster dives). A jury later found this shadowing sufficiently abhorrent to support a multi-million dollar damage verdict in Hyatt’s favor as part of Hyatt’s invasion of privacy/abuse of power claim. Ultimately, after two trips to the U.S. Supreme Court, the verdict was substantially reduced and then limited by Nevada’s own cap on damages levied against the government. Despite the long-running tort litigation, and still-ongoing California administrative proceedings regarding Hyatt’s final tax bill, it appears that his net award will be quite modest. This is largely because of a Nevada damages cap of $50,000 in actions against the government (since increased to $100,000), no matter how outrageous the conduct or extensive the injuries inflicted.

Most constitutionally important about the Hyatt decision is not only the Full Faith and Credit Clause decision (finding that claims by a resident against a foreign state entity were limited by the forum state’s own ceiling on damages against forum state entities) but also that Hyatt nearly resulted in the demise of Nevada v. Hall, the U.S. Supreme Court’s 1979 decision permitting suits against a state by residents of another state. Hall survived Hyatt—for the moment—but the Hall precedent remains vulnerable, perhaps surviving only because of Justice Scalia’s untimely death. Unfortunately, Congress’s confirmation of Scalia successor Neil Gorsuch did not examine the nominee’s position on the important state sovereignty and individual rights issues presented in Hyatt and Hall, making it hard to know if Hall will survive its next examination. States should reconsider whether they have engaged in unduly harmful interstate competition and erected undue barriers to recovery against themselves or states inflicting harm on their citizens. Both Hall and the Hyatt litigation should also prompt government agencies to consider the apt limits of their investigative zeal and should similarly prompt victims of excessive state investigatory zeal to think carefully about the proportionality of response.

“Not From a Wicked Heart: Testing the Assumptions of the Provocation Doctrine” by Carlton Patrick and Deborah Lieberman

The normative logic of the provocation doctrine rests on the long-held, yet untested, assumption that anger can motivate people to act in ways which they believe are morally wrong. Here we provide a frontline inquiry into this premise in the context of the quintessential provocation scenario: a man witnessing or learning of his partner’s infidelity. Among men who had discovered a partner’s affair, anger was more strongly correlated with motivation to retaliate than with judgments as to whether such retaliation was morally acceptable. Moreover, anger explained increases in motivation beyond what could be accounted for by increases in moral judgments. However, these effects were not uniform to all behaviors: anger motivated retaliation beyond what participants thought was morally acceptable only for those acts salient to the function of anger in this context (yelling, pushing, and striking). Taken together, these results partially support the traditional assumptions of the provocation doctrine while calling other aspects of the doctrine’s normative framework into question.

“Relative Consent and Contract Law” by Nancy Kim

What does it mean to consent? Consent is an essential component of contracts, yet its part in contract law is obscure. Despite its importance, there is no independent doctrine of consent; rather, it plays a key, but ill-defined role in assessing doctrines such as assent or duress. This Article addresses this significant omission in contract law by disassembling the meaning of contractual consent into three conditions: an intentional act or manifestation of consent, voluntariness and knowledge. This Article argues that consent can only be understood relative to these three conditions. Accordingly, consent is not merely a conclusion but a process and a dynamic that depends upon a variety of factors, including the relative blameworthiness of the parties, their relationship, third party effects and societal impact. This Article, through an examination of classic and modern cases, demonstrates how the concept of relative consent provides a coherent framework for understanding contract law. 

“How University Title IX Enforcement and Other Discipline Processes (Probably) Discriminate Against Minority Students” by Ben Trachtenberg

This Article argues that university discipline procedures likely discriminate against minority students and that increasingly muscular Title IX enforcement—launched with the best of intentions in response to real problems—almost certainly exacerbates yet another systemic barrier to racial justice and equal access to educational opportunities. Unlike elementary and secondary schools, universities do not keep publicly available data on the demographics of students subjected to institutional discipline, which prevents evaluation of possible disparate racial impact in higher education. Further, several aspects of the university disciplinary apparatus—including broad and vague definitions of offenses, limited access to legal counsel, and irregular procedures—increase the risk that black students will suffer disproportionate suspensions and other punishment.

This Article brings needed attention to an understudied aspect of Title IX enforcement and raises concerns about the potential effects of implicit bias. While many commentators and courts have addressed whether university disciplinary procedures mistreat men—or, instead, even now provide inadequate protection for college women—few observers have discussed possible racial implications, which may explain (and be explained by) the current lack of data. Outside the context of sex-discrimination cases, university discipline procedures for quotidian matters such as plagiarism and alcohol abuse likely exhibit similar racial biases. 
This Article argues that the U.S. Department of Education should use its authority under Title VI of the Civil Rights Act of 1964 to require that colleges and universities immediately begin collecting and publishing the sort of data already reported by elementary and secondary schools, thereby allowing observers to assess the scope of disparate impact in campus discipline processes.