Florida State University College of Law
Tallahassee, Florida


THEORIES OF DISPUTE RESOLUTION

Fall 1998

Professor Jean R. Sternlight
(850) 644-1596
Room 236
 

REQUIRED COURSE MATERIALS:

Jerold S. Auerbach, Justice Without Law? (Oxford U. Press 1984) (paperback)
J. Sternlight, Materials on Theories of Dispute Resolution (Fall 1998) (ďSSĒ)

STRONGLY RECOMMENDED COURSE MATERIALS:

Elizabeth Fajans & Mary R. Falk, Scholarly Writing for Law Students (1995)

OBJECTIVES:

This seminar will explore alternative ways of resolving disputes within a society. While we will often refer to the ways in which disputes are currently resolved in the United States, the goal will be to expand our minds by examining ways in which societies and cultures quite different from our own have approached dispute resolution. Ultimately, we will then seek to apply the insights we have gained to dispute resolution issues in the United States. Given the extremely broad scope of this inquiry our coverage of alternative modes of dispute resolution will necessarily be incomplete. You will have the opportunity, in your own paper, to focus on an issue that holds particular interest for you.

The secondary objective of this seminar is to foster your writing and presentational capabilities. Each of you will be required to draft and present a substantial paper. While I will be available for consultation you will be responsible for selecting your topic, outlining your paper, and preparing at least one draft and a final paper. In addition, I have set up the seminar to provide you with substantial opportunities to learn from and provide feedback to your fellow students. Specifically, you will be required not only to present your paper but also to read and comment upon two of your colleaguesí drafts. You will also be expected to contribute at least one interesting question or comment to each of our discussions.

GRADING:

There is no final exam. I will calculate your grade as follows:

Paper: 50% (I will count your draft for 15% and your final paper for 35%.) In the section below, where I describe the paper itself, I give you some guidance on how I will grade the papers. I will deduct three points per day for unexcused lateness of either the draft or the final paper. I do not intend to grant extensions absent very extenuating circumstances. While I will not grade the outline, I will deduct three points per day from your grade if it is late.

Presentation of paper: 10%. I will grade you not only on the content of what you say but also on how well you are able to generate interesting discussion amongst the members of the seminar. So, I strongly recommend that you not simply read a talk. In my experience no matter how brilliant your thoughts, such an approach does not generate good discussion. Rather, I suggest that you prepare carefully so that you can make a coherent presentation without actually reading your remarks. I recommend you take a position or positions on the issues and also ask questions in order to draw out the other members of the seminar.

Commenting on two colleaguesí work: 20%. I will require you to provide two of your colleagues with feedback on their work. As to one of your colleagues you must provide written feedback on their first draft. While you need not provide line by line criticism, you must give at least one typed page of overall comments to the colleague. For example, you should discuss what you liked, what you did not like, and where you believe further work/research is required. You must also serve as a questioner/commentator on the day that this colleague and one other colleague make their presentations.

General Seminar Participation: 20%. I will grade you on the quality of your participation in the seminar discussions. I will consider your familiarity with the readings, and the frequency and content of your comments in the seminar in calculating this portion of your grade. I will deduct from your grade for unexcused absences, lateness, leaving early, or leaving in the middle of a seminar.

Obviously, given this grading scheme, I will not be able to grade this seminar on a "blind" basis.

THE PAPERS:

A. General comments

This paper is going to require a lot more research, analysis, and hard work than a typical undergraduate paper. I highly recommend that you (1) get started as quickly as possible; and (2) take a look at Elizabeth Fajans & Mary R. Falk, Scholarly Writing for Law Students (1995). I have had a copy placed on reserve.

B. Topic

Each of you must write an original paper which makes a contribution to the dispute resolution literature. That is, you should pick a topic on which you believe you can say something new. If you pick a narrow topic you will find it easier to write an in-depth paper that says something unique. I also require that you make an argument and/or draw some conclusions, rather than merely summarize what others have said. As to the topic itself I will be quite flexible. For example, you can write about some type of dispute resolution that is, could, should, or should not be used in the some way in the U.S. Or, you can focus on a form of dispute resolution that has been used by another society. If you take this latter option I suggest, but do not require, that you relate your topic to dispute resolution in the U.S. That is, even if you choose to focus on how disputes were resolved in Antarctica in the year 200 B.C., I recommend that you consider whether such a mode of dispute resolution would work well today in the United States, and why. Finally, I recommend that you find a topic that truly interests you. You are going to spend a lot of time on this paper. If it bores you in the beginning, it will kill you by the end. Moreover, you should all be able to find a fascinating topic. Come talk to me early on if you need help picking a topic. I wonít give you a topic but I will help you generate ideas.

C. Format

Donít feel compelled to write a paper that looks like a law review article. If you prefer you can work on a legislative proposal, draft a brief, or do some kind of empirical study. However, if you opt for one of these less traditional options please come talk to me as soon as possible to make sure that I find your proposal acceptable.

Your paper should be heavily footnoted. You need to cite a source for pretty much every statement that you make. You also need to place your own paper within the relevant literature. That is, if others have written articles on related topics (and itís almost certain they have) you need to cite those articles and explain how/why your own view is different.

Be very careful not to plagiarize. I know this sounds obvious, but some students in previous years have not understood what plagiarism is. If you obtain ideas from someone else, you must cite their work, even if you do not quote them. While it is quite legitimate to obtain sources by reading someone elseís article, you should never cite a case or article you yourself have not read. It may not say what you think it says. You must come up with your own original idea for this paper. I will not accept a paper which simply restates or syntheses what others have already said.

And yes, you must follow the BlueBook. You must also proofread your paper carefully. If you have access to spell check, use it. If your grammar isnít great, try the grammar check and also try reading your paper out loud to yourself. I will deduct for sloppiness of all sorts.

D. Research

All of you know something about how to do legal research. However, you should not limit yourself to materials that may be available on Westlaw or Lexis. For example, you may find relevant information in books, in non-law review articles, or on the ďwebĒ. You may well want to use some of the social science indices in addition to indices of law review articles. The reference librarians are wonderful. Let them help you with your research.

E. Deadlines

As set forth below, each of you must meet with me to discuss your topic, and each of you must submit an outline as well as a first draft and a final draft. Iím serious about the deadlines and will deduct points from your grade if you donít comply with them. This isnít just because Iím mean. Itís also because Iím maternalistic (if you donít stay on track youíll never finish in a semester) and because Iím human (if you donít stay on track I canít get comments back in time for them to be of any use to you).

ATTENDANCE:

I will take your attendance and punctuality (or lack thereof) into account in calculating your class participation grade. In addition, if you miss more than 20% of the classes, with or without an excuse, I will not be able to give you credit for taking the class.

SPECIFIC CLASS ASSIGNMENTS:

Class 1: Introduction to course (themes, requirements, papers)

Communitarian/Conciliatory Approaches to Justice and Dispute Resolution

Class 2: Native American and South African Approaches to Dispute Resolution

SS 1-9 (Hon. Robert Yazzie, ďLife Comes From ItĒ: Navajo Justice Concepts, 24 New Mex. L. Rev. 175 (1994))

SS 10-18 (Carole E. Goldberg, Symposium: Indian Law Into the Twenty-First Century: Overextended Borrowing: Tribal Peacemaking Applied in Non-Indian Disputes, 72 Wash. L. Rev. (1997))

SS 19-54 (Ross Spano, Truth and Reconciliation Commissions: A Better Justice?, unpublished seminar paper)

SS 55-57 (Mark Mathabane, Anger and Amnesty in South Africa, New York Times 12/14/97)

Class 3: Asian Approaches to Dispute Resolution
During this week all students must meet with professor to discuss potential paper topic and outline ideas.

SS 58-62 (M. Scott Donahey, Seeking Harmony: Is the Asian Concept of the Conciliator/Arbitrator Applicable in the West? Disp. Res. J. 74 (April 1995))

SS 63-66 (James A. Wall, Jr. and Ronda Roberts Callister, Ho'oponopono: Some Lessons from Hawaiian Mediation, 11 Neg. J. 45 (1995))

SS 67-91 (Stanley Lubman, Studying Contemporary Chinese Law: Limits, Possibilities and Strategy, 39 Am. J. Comp. L. 293 (1991))

Class 4: ďJustice Without Law?Ē in the United States

Jerold S. Auerbach, Justice Without Law? Introduction, Conclusion, and at least two other chapters

9/21/98 Outline due by 5pm on 9/21. Each student must distribute copy of outline to each fellow student and professor.

Class 5: Presentation of Outlines and Preliminary Paper Ideas
Each student must read and be prepared to discuss each othersí outlines, as well as to provide constructive suggestions.

Our Emphasis on Adjudication

Class 6: The Virtues of Adjudication

SS 92-96 (Morris S. Dees, A Season for Justice, 28 Gonzaga L. Rev. 1 (1992))

SS 97-125 (Lon Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353 (1978))

SS 126-144 (Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281 (1976))

optional: Robert G. Bone, Lon Fullerís Theory of Adjudication and the False Dichotomy Between Dispute Resolution and Public Law Models of Litigation, 75 B.U. L. Rev. 1273 (1995)

Class 7: The Failings of Adjudication

SS 145-147 (Charles Dickens, Bleak House (1853) (excerpt))

SS 148-150 (Isaac Bashevitz Singer, The Litigants, in The Image and other Stories)

SS 151-54 (Warren E. Burger, Isnít There a Better Way? 68 ABA J. 274 (1982))

SS 155-175 (Carrie Menkel Meadow, The Trouble With the Adversary System In A Postmodern, Multicultural World, 38 William & Mary L. Rev. 5 (1996))

SS 176-186 (Thomas Geoghegan, Warren Court children: the angst of an aging activist; public-interest lawyersí lives, New Republic 17 (May 19, 1986))

Alternatives to Adjudication in the United States

Class 8: Mediation and Other ADR -- The Advantages

SS 187-204 (Lon L. Fuller, Mediation -- Its Forms and Functions, 44 S. Cal. L. Rev. 305 (1971))

SS 205-209 (Andrew W. McThenia & Thomas L. Shaffer, For Reconciliation, 94 Yale L.J. 1660 (1985))

SS 210-212 (Lela P. Love and Cheryl B. McDonald, A Tale of Two Cities: Day Labor and Conflict Resolution for Communities in Crisis, Disp. Res. Mag. 8 (1997))

SS 213-220 (Fred Gay & Thomas J. Quinn, Restorative Justice and Prosecution in the Twenty-First Century, The Prosecutor 16 (Oct. 1996))

Optional:

Robert A. Baruch Bush & Joseph P. Folger, The promise of mediation : responding to conflict through empowerment and recognition (1994)

Robert A. Baruch Bush, Efficiency and Protection, or Empowerment and Recognition?: The Mediatorís Role and Ethical Standards in Mediation, 41 Fla. L. Rev. 253 (1989)

Robert A. Baruch Bush, Mediation and Adjudication, Dispute Resolution and Ideology: An Imaginary Conversation, 3 J. Contemp. Legal Issues 1 (1990)

Class 9: Critiques of Mediation

SS 221-230 (Owen M. Fiss, Against Settlement, 93 Yale L.J. 1073 (1984))

SS 231-233 (Owen M. Fiss, Out of Eden, 94 Yale L.J. 1669 (1985))

SS 234-246 (Laura Nader, Controlling Processes in the Practice of Law: Hierarchy and Pacification in the Movement to Re-Form Dispute Ideology, 9 Ohio St. J. Disp. Res. 1 (1993))

SS 247-280 (Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 Yale L.J. 1545 (1991))

SS 281-294 (Andrew Ashworth, Some Doubts About Restorative Justice, 4 Crim. L.F. 277 (1993))

Optional:

Harry T. Edwards, Alternative Dispute Resolution: Panacea or Anathema?, 99 Harv. L. Rev. 668 (1986)

Class 10: What Alternatives are Possible in our Individualistic Litigious Society?

SS 295-308 (Marc Galanter, News from nowhere: the debased debate on civil justice, 71 Denv. U. L. Rev. 77 (1993) )

SS 309-314 (Sally Engle Merry, Getting Justice and Getting Even: Legal Consciousness among Working-Class Americans 172-82 (1990))

SS 315-end (Judith Resnik, Many Doors? Closing Doors? Alternative Dispute Resolution and Adjudication, 10 Ohio St. J. Disp. Res. 211 (1995))

Optional:

Carrie Menkel-Meadow, Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or ďThe Law of ADR,Ē 19 Fla. St. U. L. Rev. 1 (1991)

Jeffrey W. Stempel, Reflections on Judicial ADR and the Multi-Door Courthouse at Twenty: Fait Accompli, Failed Overture, or Fledgling Adulthood?, 11 Ohio St. J. Disp. Res. 297 (1996)

Marc Galanter, Reading the Landscape of Disputes: What We Know and Donít Know (and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 U.C.L.A. L. Rev. 4 (1984)

11/2/98: FIRST DRAFT DUE BY 5PM

Class 11 (11/5/98): Student Presentations (each presenter must provide their paper to the professor and to each member of the seminar by Mon. 5pm preceding the presentation; each person providing written comments must submit them to presenter and to professor no later than the beginning of the seminar)

Class 12 (11/12/98): Student Presentations (each presenter must provide their paper to the professor and to each member of the seminar by Mon. 5pm preceding the presentation; each person providing written comments must submit them to presenter and to professor no later than the beginning of the seminar)

Class 13 (11/19/98): Student Presentations (each presenter must provide their paper to the professor and to each member of the seminar by Mon. 5pm preceding the presentation; each person providing written comments must submit them to presenter and to professor no later than the beginning of the seminar)

Class 14 (12/3/98): Student Presentations (each presenter must provide their paper to the professor and to each member of the seminar by Mon. 5pm preceding the presentation; each person providing written comments must submit them to presenter and to professor no later than the beginning of the seminar)

12/18/98: Final Paper Due


Copyright 2005 Jean R. Sternlight. Teachers are free to copy these materials for educational use in their courses only, provided that appropriate acknowledgment of the author is made. For permission to use these materials for any other purpose, contact the author.