Reviewing the law reviews.

AuthorYoungdale, Elizabeth M.

Law Review Highlights:

Arbitration and mediation continue to be methods for compromise that courts and parties use to avoid costly and time-consuming litigation. Two articles address different aspects of arbitration, and one article discusses court-mandated mediation.

In his article The Application of Due Process to Arbitration Awards of Punitive Damages--Where is the State Action?, Charles Smith looks at the long-term impact judicial review of arbitration awards will have on the usefulness of arbitration. (1) The article analyzes whether a court's confirmation of an arbitration award for punitive damages in excess of limits imposed by the Supreme Court should be subject to a due process review. Mr. Smith concludes that it should not because allowing such challenges would undermine the arbitration system itself.

A second article, a comment by Bryon Allyn Rice, examines whether class action waivers in mandatory arbitration clauses are enforceable. (2) While courts have consistently upheld mandatory arbitration clauses in consumer contracts, they have been less willing to support arbitration clauses that take the next step and include "collective action waivers." The comment looks at the history of mandatory arbitration clauses and class action process before analyzing cases that have addressed these issues as they interact. Finally, the author proposes the adoption of a new judicial standard for assessing the validity of collective-action waivers.

The other area that attempts to limit litigation, mediation, is considered in Just Say No: Minimizing Limited Authority Negotiating in Court-Mandated Mediation. (3) In his article, Don Peters considers the problem of "limited authority" as it is used in the process of mediation. Specifically, the author looks at the frustration of the purpose of court-mandated mediation when parties come to the table without the power to negotiate real settlements in dollar amounts. The article suggests that courts should not allow parties to claim limited authority in these negotiations, and instead, should insist that parties come to mediation having considered extensively the dollar dimensions of claims and defenses. Finally, the article defends such a requirement against concerns about confidentiality and worries about the impartiality of mediators.

The following list is a selective bibliography of current law review literature thought to be of interest to civil defense counsel.

U.S. and International

Damages

Manuel A. Abdala & Pablo Y. Spiller, ChorzGw's Standard Rejuvenated: Assessing Damages in Investment Treaty Arbitrations, 25 J. INT'L ARB. 10 (2008).

Michael P. Allen, Of Remedy, Juries, and State Regulation of Punitive Damages: The Significance of Philip Morris v. Williams, 63 N.Y.U. ANN. SURV. AM. L. 343 (2008).

Peter Benson, The Basis and Limits of Tort Recovery for General Average Contribution Economic Loss, 16 TORTS L.J. 1 (2008).

Mark A. Geistfeld, Punitive Damages, Retribution, and Due Process, 81 S. CAL. L. REV. 263 (2008).

F. Patrick Hubbard, Substantive Due Process Limitations on Punitive Damages Awards: "Morals Without Technique"?, 60 FLA. L. REV. 349 (2008).

Robin Bradley Kar, Contract Law and the Second-Person Standpoint: Why Efficiency Maximization Principles Can Neither Explain nor Justify the Expectation Damages Remedy, 40 LOY. L.A.L. REV. 977 (2007).

Jonathan Lewis, Can Damages Buy You Happiness? Damages for Distress After Farley v. Skinner, 19 KING'S L.J. 113 (2008).

David A. Matsa, Does Malpractice Liability Keep the Doctor Away? Evidence from Tort Reform Damage Caps, 36 J. LEGAL STUD. S143 (2007).

David McLauchlan & Nick Hegan, Contract Damages: Fundamental Principle, Fundamental Disagreement, 46 CAN. BUS. L.J. 89 (2008).

Matthew Milikowsky, Note, A Not Intractable Problem: Reasonable Certainty, Tractebel, and the Problem of Damages for Anticipatory Breach of a Long-Term Contract in a Thin Market, 108 COLUM. L. REV. 452 (2008). http://www.columbialawreview.org/>

Paolisa Nebbia, Damages Actions for the Infringement of EC Competition Law: Compensation or Deterrence?, 33 EUR. L. REV. 23 (2008).

Liam O'Melinn, The Effects of Ebay: Discretion, Statutory Damages, and Private Attorneys-General, 2 AKRON INTELL. PROP. J. 119 (2008).

Bruce D. Page, Jr., When Reliance Is Detrimental: Economic, Moral, and Policy Arguments' for Expectation Damages in Contracts Terminated for the Convenience of the Government, 61 AIR FORCE L. REV. 1 (2008).

Benjamin D. Pearce, Note, Broadening Actual Damages in the Context of the Commodities Exchange Act, 16 J.L. & POL'Y 449 (2007).

David Pearce & Roger Halson, Damages for Breach of Contract: Compensation, Restitution and Vindication, 28 OXFORD J. LEGAL STUD. 73 (2008).

Craig Rotherham, "Wrotham Park Damages" and Accounts of Profits: Compensation or Restitution?, 2008 LLOYD'S MAR. & COM. L.Q. 25.

Charles Smith, The Application of Due Process to Arbitration Awards of Punitive Damages--Where is the State Action?, 2007 J. DISK RESOL. 417.

G. J. Tolhurst, The Nature of an Assignee's Right to Damages for Breaches of Contract...

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