A National Center for Automated Information Research (NCAIR) Conference Presentation
Washington, DC May 22, 1996
During the day, conferees will consider the place of private dispute
resolution and legal systems, the traditional distinctions among court
litigation, arbitration, mediation, negotiation, and other “soft” forms of
decisionmaking; the suitability of network-based forums for non-network
disputes; subject matter and personal jurisdiction of electronic dispute
resolution forums; and enforcement of EDR decisions; and incentives for
disputants to refer their disputes.
Both property-based and consensual dispute resolution were transplanted to
the new world. The proprietary charters of William Penn, the Virginia Company,
and Cecil Calvert, Lord Baltimore, all contain provisions giving the proprietor
the power to establish local courts, subjected mainly to the limitation that
certain more serious cases could be transferred out of the local, proprietary,
courts to the royal courts in England. Statutes enacted in Pennsylvania in 1705
and 1810 provided for arbitration of matters pending in court.
Reference to arbitration under judicial supervision 2 became common in
England beginning with the reign of Charles II (1660-1685). 3 Finality of awards
was strengthened in 1698 when a statute was enacted providing for punishment by
contempt of a party refusing to comply with an award entered in arbitration
under a voluntary submission. 4
The use of arbitration was favored especially in two types of cases which
were thought to be unsuitable for judicial resolution: family conflicts and
commercial disputes. Commercial disputes frequently involved complex accounting
issues for which special skills were needed. Equity pleading was slow and too
complex for speedy resolution of these disputes. 5 At the same time,
the attractiveness of arbitration as an alternative to common law resolution of
disputes was increased by the simultaneous development of more detailed and
restrictive rules of procedure and evidence for the judicial system. 6
Both the Chancery and Privy Council 7 organized
arbitration commissions of merchants to deal with merchants’ cases. 8
The growth of international trade stimulated interest in the Law Merchant as
a body of substantive law and of commercial or consular courts as ways of
resolving international disputes poorly suited for local courts. While consular
courts were governmental in theory, in fact, they were usually controlled by
More or less independently, a body of commercial law developed in fair
courts. Annual fairs took place in various places on the continent of Europe,
attracting traders from Africa, Russia, and the Middle East as well as Europe.
Each fair had a dispute resolution body that heard commercial disputes among the
participating merchants. While the crown might appoint a judge to guide the
proceedings, the juries consisted of merchants participating the that particular
By the late sixteenth and early seventeenth centuries, when national
sovereigns began to encroach on the traditional Law Merchant, “the Law Merchant
governed a special class of people (merchants) in special places (fairs,
markets, and sea ports). It was distinct from local, feudal, royal, and
ecclesiastical law. Its special characteristics were that (1) it was
transnational; (2) its principal source was mercantile customs; (3) it was
administered not by professional judges but by merchants themselves; (4) its
procedure was speedy and informal; and (5) it stressed equity, in the mediaeval
sense of fairness, as an overriding principle.” 10
Thereafter, the rise of nationalism, competition between different kinds of
courts for legal business, the tendency of traders to settle down and conduct
their affairs from a particular place rather than traveling from fair to fair,
and the incorporation of certain substantive principles of the Law Merchant into
municipal law, led to the diminished importance of the Law Merchant as a
separate legal system. 11 Nevertheless, as
Mark Garavaglia has explained, the Law Merchant survives in commercial law under
the guidance of international arbitration, commercial arbitration, and the
Uniform Commercial Code. 12
Thus, until the seventeenth century, the Law Merchant was an independent
legal system with its own normative rules, its own institutions, and its own
coercive measures. After that time, it lost the latter two features, but
retained its own normative rules. 13
At various stages through American history, dissatisfaction with the regular
courts and other aspects of the general legal system have led to various
proposals to privatize legal functions. From the earliest stirring of collective
bargaining, performers proposed various scheme of arbitration and conciliation
to resolve labor disputes. While these mechanism involve interest disputes and
therefore were proposed as rulemaking, more than as adjudicatory functions, the
distinction between rulemaking and adjudication was not then well recognized at
any level of dispute resolution. By the 1920s, commercial interests had become
sufficiently interested in arbitration as a private means for resolving
commercial law disputes that the American Arbitration Association was
established. During the same era, the United States Arbitration Act 14 was first
enacted to overcome traditional judicial reluctance to enforce private
And of course, since the 1970s, alternative dispute resolution has been a
popular cause in the United States, driven in part by insurance-industry and
manufacturer concern about punitive damages and products liability in medical
malpractice suits, but also by a general dissatisfaction with expenses and
delays of traditional civil litigation.
The Virtual Magistrate pilot project 15 was initiated in
discussions held on October 25, 1995, and offers arbitration for rapid, interim
resolution of disputes involving (1) users of online systems, (2) those who
claim to be harmed by wrongful messages, postings, or files and (3) system
operators (to the extent that complaints or demands for remedies are directed at
system operators). Arbitration services are available for computer networks
anywhere in the world as long as relevant parties agree to participate. The
Virtual Magistrate system announced that it was open for business on March 4,
1996. The dominant problem has been obtaining cases.
The Virtual Magistrate and other efforts to develop or articulate substantive
legal rules for Cyberspace or for applying them is only the most recent in a
long tradition of the Law accommodating private legal systems and doctrines.
Rights disputes involve claims under existing norms and usually require the
exercise of adjudicatory power to resolve them. Lawsuits, contractual
arbitration, conciliation of child custody disputes are examples of adjudicatory
power being used to resolve rights disputes. Arbitration under collective
bargaining agreements is the predominant form of resolving rights disputes in
unionized workplaces. A claim of breach of contract based on the collective
bargaining agreement must be resolved through arbitration rather than in court. 16
There are a variety of techniques of dispute resolution, some of which are
more suitable for rights disputes and others more suitable for interest
disputes, although they are not strictly associated with one or the other type
Arbitration is private adjudication, in which a nongovernmental
neutral party hears presentations by the disputants and makes a decision that is
more or less legally binding on them. Traditionally, arbitrators drew their
power from contracts, although court-annexed arbitration is growing in
popularity, in which case an arbitrator draws power from a court order or rule.
Arbitration agreements may declare in advance party willingness to arbitrate a
class of disputes that may arise in the future (collectively bargained
arbitration is an example). Or, they may be entered into after a particular
dispute has arisen, and apply only to that dispute. An agreement settling a
trademark infringement lawsuit by providing for arbitration of damages is an
Negotiation is the most common form of dispute resolution. Most
disputes are resolved this way without ever appearing in the public records of
court systems, and even those disputes that do make it to the court dockets
mostly are resolved this way: 95% never make it to trial. Negotiation is a two
party process. The disputants themselves communicate with each other seeking to
find common ground and to persuade the other of the advantage of consensual
settlement rather than resort to other legal or coercive processes.
Mediation is an adjunct to negotiation. A mediator, unlike an
arbitrator, has no power to decide, but only has the power to assist the
disputing parties to negotiate a resolution. Mediators facilitate communication
between disputants, help them discover mutual interests, and help change
perceptions of the costs of failing to settle as an inducement to settle.
Some arbitration processes include mediation as an initial step. When judges
seek to promote settlement, they act in a mediation function. When arbitrators
do the same the process is sometimes called med- arb. Increasingly,
private mediation services are being established, especially in the family
Fact-finding looks like arbitration except that the decision is not
binding. Some mediation processes, especially in publicly sensitive labor
disputes, are followed by a fact-finding process.
A reliable definition of ombudsman is elusive. Some public agencies in
corporations in the United States identify an ombudsman to serve as a kind of
high level complaint desk, with the power to receive disputes and complaints, at
least an informal power to investigate, and the power to persuade or induce
changes in position by the parties to the dispute through public embarrassment. 17
In Norway, the ombudsman function is more highly developed and formalized.
It is perhaps the most important part of a review process for administrative
agency decisions, taking the place of what would be judicial review in the
United States. Indeed, one recent ombudsman was a member of the Norwegian
Supreme Court who resigned from the Supreme Court to take the ombudsman position
— an indicator of the relative prestige of the two institutions. It is almost
unheard of for a governmental agency to decline to accept recommendations from
the Norwegian ombudsman, and the public perceives the function as an important
means of democratic control over government.
In the United States a variety of consumer dispute resolution agents might be
classified as ombudsmen, though they mostly are attached to media rather than
governments. Many local television stations have reporters assigned to
investigate and report on questionable practices that victimize consumers. Many
newspapers have similar such functions. The Better Business Bureau and certain
other industry self- policing initiatives are intended to perform a similar
function. For all of these institutions, like ombudsmen, the power over disputes
depends on public opinion or, sometimes on the opinion of policy level persons
in large institutions who otherwise do not know about disputes being handled at
For private dispute resolution tribunals, the legal framework is more varied,
but ironically more predictable in some respects. Ombudsmen recommendations,
mediation processes, and fact-finding decisions do not have binding legal
effect, and therefore no legal framework is necessary for them, except perhaps
to provide for the establishment and financing of the processes. Arbitration, on
the other hand, does enjoy a well understood legal framework. The power of
arbitrators, and the effect of arbitration awards, is a matter of contract.
Virtually every aspect of arbitration is definable in an arbitration agreement.
An arbitration agreement can provide for one or multiple arbitrators, can
identify the arbitrator by name or define a pool from which arbitrators are to
be selected, provide for rules of evidence before the arbitrator, allow or
preclude discovery, define the nature of pleading, or eliminate written
presentations altogether, and set time limits for party presentations and
To make it easier to write enforceable and complete arbitration agreements, a
number of private institutions, notably including the American Arbitration
Association, provide standard short forms and publish detailed arbitration rules
that can be incorporated by reference into one or two sentence arbitration
agreements. Under the United States Arbitration Act, also known as the Federal
Arbitration Act, 19 federal courts
are given jurisdiction and are obligated to enforce arbitration agreements
affecting interstate commerce. The Uniform Arbitration Act, adopted in some form
in virtually every state provides a similar mandate to state courts. Under these
statutes, courts may refuse to enforce arbitration awards only if the award is
tainted by fraud, gross irregularity of procedure, or if the arbitrator acted
without power conferred by the arbitration agreement. In addition to expedited
procedure under these arbitration statutes, parties seeking to enforce an
arbitration award also can file a common law breach of contract action because a
contract to permit to arbitration also is a contract to obey the award resulting
from arbitration, impliedly, if not expressly,.
Internationally, virtually every country involved in international trade is a
signatory to the “New York Convention” providing for the enforcement of
international arbitration agreements. Generally following the same principles as
the Federal Arbitration Act, it provides for greater certainty of enforcement of
an arbitration award involving an international dispute. 20
Certainty of enforcement is greater for international arbitration than for
national judgments to be enforced internationally. The United States is not
signatory to any comprehensive treaty for enforcement of civil judgments.
The potential for electronic dispute resolution has been realized by a
growing number of federal administrative agencies. The Department of
Transportation has made a major commitment by establishing a paperless docket
for its rulemaking and adjudicatory procedures in all of the operating
agencies. 21 The Nuclear
Regulatory Commission similarly has launched a number of experiments, including
the use of the World Wide Web for notice and comment rulemaking. 22
I have sketched the possibilities for electronic dispute resolution in the
administrative agency context in other articles. 23
To some limited extent, these traditional methods have been supplemented by
telephone contact, although telephonic hearings are uncommon.
however telephones are used to schedule hearings and to clarify specific and
relatively narrow questions about facts or legal positions rather than as
substitutes for a face to face hearing. 26
Nevertheless, the hearing or trial remains the focal point of dispute
resolution, and any strategy for using information technology for dispute
resolution must address the hearing process. At the hearing or conference,
parties typically make presentations summarizing their positions and demands. In
arbitration and fact finding proceedings they may present witnesses, in which
case they use traditional techniques of direct and cross examination. At
arbitration hearings also, arbitrators ask questions aimed at clarifying
positions of the parties and their views on what criteria the arbitrator should
use to decide the case. Most of the time at mediation conferences is spent with
the mediator asking questions of the participants, seeking to clarify their
interests, and exploring their reactions to propositions the mediator
articulates aimed at clarifying his understanding of the dispute and seeking to
identify common ground. Witnesses almost never are presented in mediation
conferences, and long formal presentations by disputants are unusual. Fact
finding proceedings are likely to resemble arbitration in their procedures and
methods. Conciliation is indistinguishable from mediation as already noted.
Ombudsmen procedures are less likely to involve face to face contact or more
than one exchange of written submissions.
Arbitration hearings may be held in conference rooms or special hearing
rooms. Mediation conferences, typically are held in ordinary conference rooms.
The first and fourth techniques offer significant advantages when information
technology is applied to processes that involve significant amounts of paper.
For example, in the SEC’s EDGAR system, technology permits millions of pages of
corporate securities filing to be submitted electronically and used by the SEC
and others in electronic form, reducing storage and courier costs for paper and
labor costs for search and retrieval photocopying. For the same reasons,
information technology is widely used by litigators to manage discovery
documents in major civil cases.
The second and third features of information technology permit the automation
of hearings and conferences, albeit at cost. Electronic mail is widely used to
replace certain face to face oral interaction and to replace or supplement
telephone contact, which itself is a substitute for face to face or written
interaction. The use of electronic conferencing is growing rapidly in popularity
as a replacement for certain kinds of face to face telephonic interaction, aided
considerably by the Counsel Connect experience. The World Wide Web has added to
the flexibility of electronic publishing so that it overlaps electronic
conferencing as a medium for interactivity when significant amounts of
preexisting information need to be organized and examined.
But information technology as it now is deployed is limited to textual means
of communication, and static images such as charts and diagrams, with limited
amounts of audio supplementation
These limitations mean that an electronic hearing or conference is like
substituting written communication for oral and nonverbal communication, with
the advantage that the communication is interactive and almost instantaneous.
In the long run, video conferencing and the exchange of video files will
expand the power of electronic hearings and conferences, permitting oral and
nonverbal messages to be sent and received. But the processing power,
communications bandwidths, and storage requirements for all forms of full motion
video are about two orders of magnitude greater than those required for the
widely available text and static image based methods.
Even without video conferencing and file exchange, the advantages of
information technology are considerable. First, the new technologies, especially
the World Wide Web, make it easy for potential participants to find the starting
point for service. They easily may be directed to the URL that is the entry
point for the Virtual Magistrate system. As the system is made public, it is
being picked up by World Wide Web finding aids like Altavista, Lycos and
Webcrawler making it much more likely that a potential disputants would
encounter it when passing by virtually.
Second, it is easier for disputant to submit a dispute. She need not go to
the office of the AAA or a lawyer, but merely need fill out the Web form or send
an email message. Delays associated with waiting for paper forms to be received
and processed are eliminated in steps of registering a complaint, appointing a
decisonmaker, and serving other parties with the complaint.
The docket is visible to participants, changes to it are immediately
available, and the full contents of all materials are directly available from
the docket itself. No telephonic or written face to face request is necessary
for documents. At no step in the process need anyone play telephone tag.
The techniques used for composing more reflective or complex documents are
the same as those used for conventional methods of dispute resolution: word
An archival record of arbitration awards and of the filings easily available
to the public participants in other cases without the need for any investment of
additional labor or capital. The system manager simply deactivates user
authentication in the docket for a particular case once it is completed, making
it public. On the other hand, records for a specific case can be sealed, simply
retaining the requirement for user authentication step.
There are no travel expenses or conference room rental expenses for
arbitrator or participants. Time required to participate is less for the filing
docket-checking and hearing stages although not for document preparation and
But there also are limitations, some obvious, as with respect to oral
proceedings, others not so obvious. In January, 1996, the author of this paper
was in the position of having to organize make up classes for two law school
classes canceled because of a blizzard in Philadelphia. For one of the classes,
an upper class computer law course with enrollment of about twelve students, the
author arranged a “virtual makeup,” in which he and the students participated
through an “electronic study group,” using Internet newsgroup and email
applications. That makeup class was successful. All of the students participated
at least once, the quality of student analysis was as high or higher than that
typically observed in the classroom, and the instructor was able to present
hypothetical questions to specific students. The commitment of time by students
and instructor, however, was asymmetrical. The instructor invested two to three
hours to make up a 50 minute class. No student invested more than 5 or 10
minutes in the makeup (as opposed to preparation, which was no different for the
makeup than it would have been for the regular class). Because of the asymmetry,
the author decided not to organize virtual makeup for his 115-student first year
class in Civil Procedure.
Is dispute resolution more like the Computer Law class or more like the Civil
Procedure class? Application of information technology to small-case
arbitration, such as that employed in the Virtual Magistrate project, probably
does not involve significant asymmetry of costs, but more complex disputes may.
Oral dispute resolution has a strong pedigree. Today, small claims are
resolved with little pleading, no discovery, and no written opinion in courts
“not of record,” in virtually every American state. Indeed, in many state court
systems, few trial courts routinely prepare written opinions. Often, written
opinions are prepared only when appeals are filed.
In England well into the 17th Century, most trial courts, including those “of
record,” worked from written pleadings but authorized no discovery and produced
no written opinion. The pleadings served as the agenda for an oral trial,
followed by oral jury deliberations and a simple binary verdict. Even the
pleadings were abbreviated in the earliest history of English litigation. The
clerk did the writing, and the clerk could write only so much.
28 His function
was to memorialize what the court decided so that the dispute between those
parties could be brought to an end. In other words the crucial work product was
the judgment, and the importance of the judgment was its preclusive — not to
say its precedential — effect.
Electronic dispute resolution strategies must pay attention to the oral
tradition. The author of this paper and the Villanova Center for Information Law
and Policy presently are involved in developing an Internet-based legal
information infrastructure for Bosnia. This effort raises some of the same
issues raised by NCAIR’s inquiry into electronic dispute resolution. In Bosnia
as well as in cyberspace, a crucial question is whether electronic communication
can substitute for paper and face to face communication in dispute resolution
traditionally performed by courts. In Bosnia as well as in those parts of the
NCAIR project focused on mediation, a crucial question is the degree to which
information technology has anything to contribute to predominately oral modes of
Of course, even oral traditions usually record something. When
information technology is used to create the space for dispute resolution, at
least the early clerk’s function can be automated; technology can record and
communicate the decision. But information technology also must bear a heavier
burden, and that is to replace the oral channels for case presentation by the
opposing sides. Whether this is acceptable to the disputants depends in large
part on how easy it is for them to use the readily available computer input
devices as compared with simply talking about their case.
Discussions of cyberspace governance frequently include discussion of the
need for specialized substantive rules for cyberspace. According to one view, it
is not enough to have specialized adjudicatory mechanism unless there also is
specialized law for them to apply. One way to achieve this result is to empower
adjudicatory decisionmakers, probably arbitrators, with broad discretion to make
up the rules as they go along, roughly analogous to the power of arbitrators
under collective bargaining agreements to apply “the law of the shop” as well as
the explicit language of the collective bargaining agreement.
possibility of course, is to separate the judging from the law making functions,
and also to establish law making institutions. An early gesture in this
direction is the restatement of cyberspace project sponsored by Counsel Connect.
The author of this paper is facilitating the development of “restatements” on
discrete areas of conduct in which new information technologies present special
problems, including caching and copyright, trademarks and domain names,
unsolicited communication, contract formation, and intentional injury. The
purpose is to develop statements of community practice that can be applied by
arbitrators or regular courts. Obviously, the restatement project has no law
making power in the sense that a legislature does. Nevertheless, there are many
areas of law in which trade practice and community custom come into play as
standards of legal conduct. 30
Internet-based information technology can transform rulemaking, but present
applications also have serious limitations. In the summer of 1995, the author of
this paper agreed to facilitate one of three electronic “town meetings,”
sponsored by the White House. The town meetings were organized through Internet
newsgroups and linked email lists. Several hundred people from all walks of life
participated, demonstrating the pervasiveness of the Internet as a mechanism for
involving members of the public in governmental decisionmaking. In that respect,
the project was a success.
In other respects, however, the project indicated the need for further work
to refine concepts of electronic discussion and the tools for facilitating such
discussions when they are aimed at governmental decisionmaking — as opposed to
a general discussion without any intended concrete results. One problem was
significant transaction costs for the facilitator in reading all of the
postings. It took longer to read the electronic postings than it would have
taken to read a collection of hard copy comments because of the overhead of
having to open each message and then to close it. Second, the signal to noise
ratio was low. Most of the comments were not pertinent to the subject, and many
were emotional diatribes bordering on the pathological. Third, existing email
and newsreader tools made it too difficult cross reference other comments and
materials, thus missing many of the benefits of electronic modes of interaction.
Now, of course, Netscape browsers automatically format recognized URLs so that
one can point and click on a URL within an email message or newsgroup posting
and go directly to the referenced resource. Finally, there was no easy method
for sorting and reorganizing the postings, as one regularly does with paper
records to synthesize comments on legislative proposals and notices of proposed
The impression of this was that pure town meeting governance is not feasible
for significant issues in modern society, but that the Internet has great
potential as a channel for public participation as long as tools can be improved
to permit appropriate intermediation and filtering.
In developing better tools for handling interest disputes, one really begins
to think about on-line dispute resolution as a broad mechanism for facilitating
human collaboration of all kinds.
The second perspective broadens the framework of inquiry to include
traditional types of dispute resolution other than arbitration, specifically
mediation and ombudsmen. In this session participants can begin to consider the
adaptability of the information technologies deployed in the Virtual Magistrate
The third perspective asks participants to escape the bounds of tradition,
both traditional categories of dispute resolution, and current information
technology applications. Suppose we could mold the dispute resolution process
differently because new information technologies relieve old constraints?
Suppose we could redesign information technology applications to meet the needs
of dispute resolution better? What designs would we envision?
Merely designing a good dispute resolution system does not guarantee that
anyone will use it for real disputes. The fourth perspective confronts
participants with some hard questions from the real world. How should potential
disputants be informed about new dispute resolution possibilities? How can their
skepticism be overcome? What risks must be explained and mitigated, from the
disputant perspective. How can opposition from existing and more traditional
institutions be handled most effectively?
From these shifting perspectives, participants in the May 22 conference
should consider at least the following issues:
1. How can electronic dispute resolution achieve the same creditability for
neutrality and legal effect as conventional methods?
2. What assumptions are warranted about participant access to necessary
technologies? Presumably Web access is available to anyone who has access to a
PC and modem.
3. When will the world be ready for full motion video?
4. What role should institutions such as AAA, public libraries, and the bar
play? They all can facilitate access technologically and psychologically.
5. How well do the techniques used for the Virtual Magistrate system scale?
6. What risks should drive privacy and authentication techniques?
7. What reliability concerns must be addressed?
8. Is a competitive market for electronic dispute resolution services a good
thing or a bad thing?
9. What risks should we be willing to take with ambitious arbitration
agreement theories such as those provided in form subscription agreements?
10. What degree of human intervention is tolerable economically, to do things
like persuade third parties to participate?
11. What are the special problems in extending information technology adapted
for resolution of cyberspace disputes to resolve disputes arising outside
cyberspace? One obvious possibility is that disputants are less likely to have
their own access to the requisite technology and therefore may be more dependent
on intermediaries such as public libraries, the AAA, and suitably equipped
members of the bar.
12. How do we adapt adjudicatory tools, such as those deployed for the
Virtual Magistrate system, to “softer” forms of dispute resolution, such as
13. What strategies for interest dispute resolution accommodate open systems
rather than representing closed, proprietary approaches?
What holds disputants back from participating? What can be done to encourage
After May 1, you can access this paper and other papers prepared for the May
22 conference at http://www.law.vill.edu/ncair/disres/
1 Act of 1705, ch. 150, 1 Pa. Laws (Sm. I) 49; Act of March 20, 1810,
ch. 3219, 5 Pa. Laws (Sm. I) 131 (current version at 42 Pa. Cons. Stat. Ann. §
7362 (Purdon 1982).
2 . Arbitration in England evolved as a part of equity procedure
in connection with the mode of taking evidence out of the court’s presence
before trial. It gradually developed an independent existence. See J. Dawson, A
History of Lay Judges 145-72 (1960). Equity, unlike the common law courts, was
centralized in London. Accordingly, it was desirable to find means of gathering
factual proof without forcing non party witnesses to come to London. Moreover,
only two judges sat in Chancery: the Chancellor himself and the Master of the
Rolls. Id. at 171. Using written interrogatories framed by the parties, lay
citizens were commissioned to conduct secret depositions of witnesses. The
evidence thus obtained formed proof upon which the case could be decided. Id. at
153-54. As the caseload increased, chancellors found it natural to build on the
extensive system of lay commissioners actually to resolve the cases in which
they were to hear evidence. Id. at 153-64. Such decisions by nonjudges amounted
to arbitration. By the middle of the sixteenth century, it was fairly common to
commission laypersons to hear and end cases in this manner, by arbitration. Id.
at 164. Typically, if the referees could not resolve a case, they were to report
their proceedings and opinions to the Chancellor. However, it was also common
for the Chancellor to compel attendance by the parties at the arbitration
proceedings and to induce them to accept the arbitration awards by imposing
substantial bonds which would be forfeited in the event of noncompliance. Id. at
3 . Kyd on Awards 4, 21 (1808) (asserting that Enligh arbitration
originated in the Code of Justinian).
4 . Id. at 21, 9 & 10 William III c.15 S.1. Vynior’s Case, 4
Eng.Rep. 302 (1609) had undermined the force of arbitration awards by expanding
the authority of common law courts to reconsider the merits of the underlying
dispute and my treating arbitration agreements as revocable.
5 . Id. at 166-68. Equity procedure frequently involved multiple
hearings and consideration of evidence separately with respect to each pleading.
See C. Langdell, Equity Pleading at 27-50 (1883) (contrasting equity and common
6 . Compare Kyd on Awards at 22-23 with Kyd at 21.
7 . The Privy Council was the descendant of the medieval King’s
Council. By the time of the Restoration, it exercised appellate jurisdiction
over courts in the Channel Islands, the American colonies, and in India. In
addition, it had powers to enforce treaty privileges. Thus it had special
concern with merchants involved in foreign trade. T. Plucknett, A Concise
History of the Common Law 205-06 (1956). Authority over appeals from the equity
courts had passed to the House of Lords shortly after the Restoration. Id. at
8 . J. Dawson, A History of Lay Judges 167-68 (1960).
9 Mark Garavaglia, In Search of the Proper Law in Trans National
Commercial Disputes, 12 N.Y.L.S. Ch. J. Int’l & Comp. L. 29, nn. 31-35
(1991) (describing fair courts).
10 Garavaglia at n. 10 (citing Berman & Kaufman, The Law of
International Commercial Transactions (Lex Mercatoria) 19 Harv. Int’l L. J. 221,
274-77 (1978)). But see De Ly at 17 (expressing doubt on whether Law Merchant
ever was completely separate from national legal systems).
11 Garavaglia at nn. 39-47. De Ly at 17 (absorption of Law Merchant
by common law dates to 1756 when Chief Justice Mansfield began to qualify trade
custom as legal rules applicable to all citizens).
12 Garavaglia at nn. 48-125 (international arbitration under unidroit
and unicitral rules); id. at nn. 126-247 (commercial arbitration in English
law); id. at 249-290 (concepts of Law Merchant in American commercial law,
especially under the federal common law authorized by Swift v. Tyson); id. at
291-343 (emphasis on trade usages and regular practices in Uniform Commercial
Code); id. at nn. 344-382 (American attitudes toward international commercial
arbitration, emphasizing Sherk v. Alberto-Culver Co., 417 U.S. 506 (1974)
deferring American securities law claim to international arbitration); Parsons
Whittemore Overseas Co. v. Societe Generale, 508 F.2d 969 (2d Cir. 1974)
(rejecting public policy challenge to international arbitration decision)).
13 Mr. Garavaglia’s work does not make it entirely clear whether the
fair courts imposed their own sanctions or relied upon external legal
institutions to enforce their judgments. See generally Garavaglia at nn. 24-38
(describing fair courts and state facilitation of fair court proceedings).
14 9 U.S.C. § 1 (1992).
16 Steelworkers Trilogy (Steelworkers v. American Mfg. Co., 363 U.S.
564 (1960); Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574
(1960); and Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593
(1960) (all emphasizing the deference owed to collectively bargained arbitration
by federal courts presented with breach of contract claims under collective
17 See Jeffrey S. Kahana, Reevaluating the Nursing Home
Ombudsman’s Role With a View Toward Expanding the Concept Of Dispute
Resolution, 1994 J. Disp. Resol. 217.
18 See Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d 354, 359
(10th Cir. 1996) (employing comity doctrine in state that had not enacted
Foreign Money Judgments Recognition Act; Australian judgment barred state
19 9 U.S.C. § § 1-16 (1992).
20 See Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 (1974)
(applying New York Convention and explaining how it improved predictability).
21 See. Henry H. Perritt, Jr., Electronic Dockets: Use of
Information Technology in Rulemaking and Adjudication – Report to the
Administrative Conference of the United States (October 19, 1995),
22 Perritt Report sec. IV(B).
23 Henry H. Perritt, Jr., The Electronic Agency and the Traditional
Paradigms of Administrative Law 44 ADMIN.L.REV. 79 (1992); PUBLIC INFORMATION IN
THE NATIONAL INFORMATION INFRASTRUCTURE, Report to the Regulatory Information
Service Center, General Services Administration, and to the Administrator of the
Office of Information and Regulatory Affairs, Office of Management and Budget,
May 20, 1994, http://www.law.vill.edu/Fed-Agency/OMB/pub.info.NII/ombtoc.htm
24 Richard L. Marcus, Completing Equity’s Conquest? Reflections on
the Future of Trial Under the Federal Rules of Civil Procedure, 50 U. Pitt.
L. Rev. 725 (1989).
25 A WESTLAW search on 15 March turned up 1057 federal and state
cases referring to telephonic hearings, in administrative, criminal, and civil
contexts. See, e.g. Williams v. Office of Personnel Management, 70 F.3d 129
(Fed. Cir. 1995) (rejecting challenges to administrative agency determination
based on telephone hearing); Lee v. Pfeifer, 916 F.Supp. 501, 503 (D.Md. 1996)
(telephonic hearing, recorded on audio tape, regarding removal jurisdiction);
State v. Clarke, 1996 WL 45199, *2 (Neb. Ct. App. Feb. 6, 1996) (two telephonic
hearings on petition for mandamus).
26 But see United States v. Contreras, 63 F.3d 852, 856 (9th Cir.
1995) (scrutinizing telephonic hearing substituted for in-person deportation
hearing, but finding no due process violation).
27 See e.g. M. Ethan Katsh, LAW IN A DIGITAL WORLD (1995); M. Ethan
Katsh, THE ELECTRONIC MEDIA AND THE TRANSFORMATION OF LAW (1989).
28 See generally M. T. Clanchy, FROM MEMORY TO WRITTEN RECORDL
ENGLAND 1066-1307 at 64-65 (2d ed. 1993) (describing role of clerk in inquests).
29 “The labor arbitrator’s source of law is not confined to the
express provisions of the contract, as the industrial common law–the practices
of the industry and the shop—is equally a part of the collective bargaining
agreement although not expressed in it. The labor arbitrator is usually chosen
because of the parties’ confidence in his knowledge of the common law of the
shop and their trust in his personal judgment to bring to bear considerations
which are not expressed in the contract as criteria for judgment.” Steelworkers
v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581-82 (1960).
30 See generally Marx & Co., Inc v. Diners’ Club, Inc., 550 F.2d
505, 509 (2d Cir. 1977) (general rule is to admit evidence of trade custom to
assist in construing contracts, but testimony of expert witness did not
qualify); Doyle v. White Metal Rolling and Stamping Corporation, 618 N.E.2d 909,
919 (Ill. Ct. App. 1993) (reviewing standards for admissibility of industry statements of practice in products liability cases).
Kluwer Mediation BlogI wish to add to Michael Leathes’ recent post on his suggestion that more field-based research be done into the mediation product and Rick Weiler’s follow-up. There are...By Greg Rooney