Volume 10, Issue 4 - May 2012

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ISSUE 4: CASE SUMMARY

Missouri v. Frye, 132 S.Ct. 1399 (2012)*

The Sixth Amendment’s guarantee of “assistance of counsel” for the defense of an accused has long been held to mean that a criminal defendant has a right to the effective assistance of counsel.  The Supreme Court has interpreted this right as extending to all “critical” stages of a criminal proceeding.  In Missouri v. Frye, the Court examined the issue of whether the Sixth ...
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ISSUE 4: CASE SUMMARY

Lafler v. Cooper, 132 S.Ct. 1376 (2012)*

The decision in Lafler v. Cooper will change the criminal plea-bargaining system. The Court held that criminal defendants have a Sixth Amendment right to effective assistance of counsel during plea negotiations, including when a defendant rejects a plea bargain because of bad legal advice. In Lafler, the attorney mistakenly informed the defendant that the state could not estab ...
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ISSUE 4: LEAD ARTICLE

Plea Bargaining, Just as it Ever Was?

Cynthia Alkon

Newspaper articles and constitutional scholars have called the recent U.S. Supreme Court cases of Missouri v. Frye and Lafler v. Cooper “landmark” and “game-changing” as the cases held that defendants have a right to competent assistance of counsel during plea bargaining.  Beyond the constitutional and appellate court implications, will these cases make a ...
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ISSUE 4: ARTICLE SUMMARY

The Expanding Role of Judges in Settlement and Beyond

Linda Chatman Thomsen, Seth Rosenbloom, David Polk & Wardwell LLP

1931 PLI/Corp 415

Traditionally, there have been defined limitations on the judges’ role in reviewing settlements. Judges review settlements in special civil contexts where the parties may be vulnerable or nonparties may be at risk. Consent judgments may also lead judges to engage in review. In the cr ...
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ISSUE 4: STUDENT SPOTLIGHT

A Horse of a Different Color: Binding Arbitration and the FTC’s Interpretation of the Magnuson-Moss Warranty Act’s “Informal Dispute Settlement Procedures”

Jennifer Hart 

On September 19, 2011, the Ninth Circuit held in Kolev v. Euromotors West/The Auto Gallery that the Federal Trade Comm ...
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ISSUE 4: EDITOR'S CORNER

Welcome to the fourth issue of the 2011-2012 Mayhew-Hite Report. The tenth volume of the Report so far has addressed the proposed Arbitration Fairness Act, mediation in the domestic violence context, and the disconnect between the executive and judicial branches in interpreting domestic arbitration statutes. In this last issue, the Report focuses on the effects that t ...
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ISSUE 3: STUDENT SPOTLIGHT

Abyei: An Examination of the Effectiveness of Arbitration for African Land Disputes

Elizabeth Ward
The Ohio State University Moritz College of Law
Class of 2012

Critics question the effectiveness of arbitration in resolving international land disputes, such as the Abyei dispute.  This paper analyzes the Abyei arbitration and uses the Abyei arbitration as a backdrop for analysis of arbitration’s effectiveness in ...
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ISSUE 3: EDITOR'S CORNER

This third issue of the Report focuses on legal and policy matters surrounding arbitration.  Disputants with a wide array of conflict types may elect arbitration as their resolution mechanism; as such, the concerns about arbitration are equally varied.  I selected the articles in this issue to highlight a few of these discussions—namely, diverse interpretations of domestic arbitration statu ...
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ISSUE 3: CASE SUMMARY

NLRB Decision Bars Mandatory Waiver of Class Action in Employment Arbitration Agreements

The NLRB’s decision in D.R. Horton, Inc. and Michael Cuda, 12-CA-25764 January 3, 2012, held that that employers may not deprive either unionized or non-unionized employees of the opportunity to bring class actions against their employer in any forum, arbitral or judicial.  This decision overturned an Administrative Law Judge’s (ALJ) January 3, 2011, determination that a mutual ar ...
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ISSUE 3: ARTICLE SUMMARY

Claim-Suppressing Arbitration: The New Rules

David S. Schwartz
87 Ind. L.J. 239 (2012)

Binding arbitration should be recognized for what it is: claim-suppressing arbitration. It is not Alternative Dispute Resolution (ADR) because the process is neither voluntary at the beginning nor nonbinding at the end. It is not a justice system because it is only imposed by one side, and it is not mandatory arbitration because th ...
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ISSUE 3: LEAD ARTICLE

THE ROBERTS COURT VS. THE REGULATORS: SURVEYING ARBITRATION’S NEXT BATTLEGROUND

Paul F. Kirgis

Over the past three decades, the Supreme Court has taken a series of steps having the design or effect of restricting access to judicial process. This “disadjudication” project has proceeded along three tracks: 1) with respect to its own docket, the Court has dramatically reduced the number of cases it decides each year; 2) in the criminal area, the Court has ...
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ISSUE 2: EDITOR'S CORNER

This second issue of the Report focuses on domestic relationships and the home. With more couples delaying marriage, ending marriage, or declining to enter into the institution at all, new legal approaches to domestic issues are developing to handle changes in various areas of the law—from property and contract law to criminal law. The selected articles and case shed light on developing issue ...
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ISSUE 2: STUDENT SPOTLIGHT

Contracting for a Breakup: The Importance of Cohabitation Agreements That Include an Alternative Dispute Resolution Clause

Allison Wojkun
The Ohio State University Moritz College of Law
Class of 2012

Cohabitation is a phenomenon that is becoming more popular each year.1 Two people meet, fall in love, and move in together. If marriage follows, it does not come until later. In this revised fairytale, life seems perfect—the couple is in love and the thought of brea ...
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ISSUE 2: CASE SUMMARY

HOSSAINI V. VAELIZADEH, 2011 WL 3422782 (D. NEB. 2011).

Is an attorney-mediator permitted to represent a party in litigation after serving as the mediator between the two litigants in an earlier mediation? Although this is an uncommon issue, a recent federal court decision in Nebraska found that the issue may be raised if the litigated dispute and mediated dispute are “substantially related.” In Hassaini, a divorced couple had been parti ...
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ISSUE 2: ARTICLE SUMMARY

THE COURT, THE PARENT, AND THE CHILD: MEDIATOR PERCEPTIONS OF THE PURPOSE AND IMPACT OF MANDATED MEDIATION IN CHILD CUSTODY CASES

Charles Stoner, Sandra Perry, and Tanya Marcum
13 J.L. & Fam. Stud. 151 (2011)

Around the same time that states began to move away from fault-based divorce towards no-fault dissolution of marriage, courts and legislatures began to embrace mediation as a way for couples to decide child custody and visitation issues. This marked a shift towards what is known as the ̶ ...
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ISSUE 2: LEAD ARTICLE

THE ONGOING DEBATE ABOUT MEDIATION IN THE CONTEXT OF DOMESTIC VIOLENCE: A CALL FOR EMPIRICAL STUDIES OF MEDIATION EFFECTIVENESS

Susan D. Landrum

For approximately three decades, scholars, mediators, and domestic violence victims’ advocates have debated whether mediation is an appropriate way to approach family law issues in situations where the parties have a history of domestic violence. Those debates have addressed whether mediation is ever appropriate where there is a history of domestic violenc ...
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ISSUE 1: EDITOR'S CORNER

Welcome to the 2011-2012 Mayhew-Hite Report! My name is Jennifer Herman; I am a third year Juris Doctor candidate at the Moritz College of Law and new editor of the Report. The Report will consist of four issues this year; tentative publication dates for the remaining three issues are November 30, February 29, and April 30.

The Report always welcomes feedback and suggestions for improvem ...
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ISSUE 1: STUDENT SPOTLIGHT

Mediation: A New Way to Discuss the Complexities of Racialization in the American Workplace

Ingrid Babri
The Ohio State University Moritz College of Law
Class of 2012

Workplace discrimination is not simply a matter of individual action; it is a multi-dimensional process that needs to be fully analyzed. As mediators are uniquely empowered to facilitate constructive conversations and develop solutions that incorporate multiple interests, they should b ...
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ISSUE 1: CASE SUMMARY

Khan v. BDO Seidman, LLP, 404 Ill. App. 3d 892, 935 N.E.2d 1174, 343 Ill. Dec. 946 (Ill. App. 4 Dist. 2010)

The question of arbitrability arises whenever one disputant, who is a party to an arbitration agreement, moves a court to compel arbitration of the entire dispute or a specific issue within the case. Usually, a motion to compel arbitration is accompanied by a motion to stay judicial proceedings while the arbitration proceeds. Historically, the United States Supreme Court has presumed that most ...
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ISSUE 1: ARTICLE SUMMARY

NAVIGATING THE MURKY WATERS OF UNTRUTH IN NEGOTIATION: LESSONS FOR ETHICAL LAWYERS

Deborah Schmedemann
12 Cardozo J. Conflict Res. 83 (2010)

In “Navigating the Murky Waters of Untruth in Negotiation: Lessons for Ethical Lawyers,” Deborah Schmedemann addresses an issue that the law has largely seemed to ignore—the role of truthfulness in the negotiation process. According to Schmedemann, the laws underlying the negotiation process condemn af ...
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ISSUE 1: LEAD ARTICLE

ON BABIES AND BATHWATER: THE ARBITRATION FAIRNESS ACT AND THE SUPREME COURT’S RECENT ARBITRATION JURISPRUDENCE

Sarah Cole

An important, but widely overlooked, issue has plagued arbitration for many years—the disconnect between the judicial embrace of predispute arbitration agreements in consumer (or employment) contracts and the negative public and legislative attitude toward such agreements. For many years, Democratic legislators attempted to pass a law banning the use of predispute a ...
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