Monday, April 18, 2011
Wednesday, April 13, 2011
Carol Izumi has published an article called "Implicit Bias and the Illusion of Mediator Neutrality,' 34 Wash. U. J. L. & Pol. 71 (2010). Carol concludes: "The veneer of neutrality is stripped away by research findings that show convincingly that mediators fall far short of the ethical duty to treat parties impartially and without bias. Under current conditions, we are failing to meet our articulated goals and the expectations of the parties. Surely, it is naive to think we can completely eliminate bias in mediation. It is equally certain that nondiscrimination in mediation is attainable only with more deliberate, informed, and self-concsious practices by mediators."
Tuesday, April 12, 2011
Rick Marcus has published an article called "Reviving Judicial Gatekeeping of Aggregation: Scrutinizing the Merits on Class Certification," 79 Geo. Wash. L. Rev. 324 (2011). Rick notes that scrutiny of the merits during the decision about whether to certify a class has been making a comeback. The 1974 case of Eisen v. Carlisle & Jaquelin disapproved such scrutiny, but the 2003 Amendments to Rule 23 have in part brought it back. Rick ultimately views this as something of a "back to basics" development, saying that "In a number of ways, Eisen has seemed a wrong turn in class action law . . . ." While Rick views the development generally positively, he warns that "it nonetheless comes with potential consequences that may unnerve some," most prominently that "there will be even more settlement-class than litigation-class certifications."