Recent Articles in Alternative Dispute Resolution from LexMonitor

Calling all ADR bloggers - is one of your posts the best in 2008?

mail@mediationchannel.com (Diane Levin) — Fri, 21 Nov 2008 14:38:50 GMT

ADR blogs Mediation Channel and mediator blah… blah… are combining in a quest to find the 3 best mediation and negotiation related posts written in 2008. Together we are asking all ADR bloggers to send us your very favorite mediation/negotiation related post that you have written this year for inclusion in the competition. All you have [...]

ADR blogs Mediation Channel and mediator blah… blah… are combining in a quest to find the 3 best mediation and negotiation related posts written in 2008.

Together we are asking all ADR bloggers to send us your very favorite mediation/negotiation related post that you have written this year for inclusion in the competition. All you have to do is email us with the details.

Once we get bloggers’ posts we will open up the voting to the ADR community.

In the next week, we need to receive your e-mail with ‘ADR Post 2008′ in the subject line and then in the email the following information:

the name of your blog and its URL
the title of your nominated 2008 post and
a link to your post - all before close on November 30, 2008 at 11:59 PM (UTC-8).

Voting will then be open from early December until December 19, 2008. The ADR blogosphere and their readers will be asked to vote for their 3 favorite posts of 2008. Voting will close on December 19, 2008.

We hope all ADR bloggers will carry the list of posts and link to the voting site so we get a good voting turn out from readers in December. All that detail will be provided shortly after the close of entries on November 30.

The rules for inclusion are simple:

Your blog needs to be listed at World Directory of ADR Blogs at the time you submit your favorite post.
You can submit only one post and it must be mediation or negotiation related.
Your post needs to have been published on your blog during 2008 and still be available there.

Once voting is open in December, you are welcome to solicit votes for your own or another’s post in any way you want. As well as a bit of fun we hope the competition will showcase the very best of this year’s ADR writing.

Why are we doing this? In the ADR blogosphere wonderful posts seem to come and go so very quickly, often becoming irretrievably lost within days. We hope this good-natured exercise will allow bloggers to fish out their best writing and hold it up for all to see.

To submit your best post for 2008, email:

mediator blah… blah… at mediate [at] geoffsharp.co.nz
or
Mediation Channel at mail [at] mediationchannel.com

Stark & Stark Attorney Featured on Legally Speaking

rdeluca@stark-stark.com (Stark & Stark) — Fri, 21 Nov 2008 13:34:00 GMT

Michael J. Fekete, member of Stark & Stark's Business & Corporate group, was a featured guest on the Camden County Bar Foundation's weekly television talk show Legally Speaking on Sunday November 9, 2009. Mr. Fekete discussed the New Jersey Home Improvement Law, the Consumer Fraud Act and the Contractor's Registration Act. You can watch the full episode online here.

This Twitter Thing is Certain to Come to No Good!

vpynchon@settlenow.com (Victoria Pynchon) — Fri, 21 Nov 2008 02:04:46 GMT

There's an infinite regression angle to this.

Feeling Extorted? Mr. Molski's Serial ADA Litigation and Why We Settle

vpynchon@settlenow.com (Victoria Pynchon) — Thu, 20 Nov 2008 17:35:45 GMT

Many in the legal blogosphere are buzzing about the recent Supreme Court decision letting stand a Central District injunction barring wheelchair-bound Jarek Molski from filing further ADA accessibility cases in our local federal trial court here in Los Angeles. See Justice Berzon's and Kozinski's spirited dissents to Ninth Circuit's Per Curiam refusal of the Petition for a full panel re-hearing here.

Mr. Molski was declared a vexatious litigant by the California Central District federal court back in 2004. See Wendel Rosen's excellent report of that case here. Molski v. Mandarin Touch Restaurant, 347 F. Supp. 2d 860 (C.D. Cal.2004) (declaring Molski a vexatious litigant and requiring court approval prior to his filing future lawsuits); aff'd Molski v. Evergreen Dynasty here.

Still active is Molski's case in the Eastern District of California which was recently permitted to go forward by the same Ninth Circuit Court of Appeal. As the Ninth Circuit explained the factual background of Mr. Molski's "serial litigation,"

[Plaintiff] Molski and his lawyer Thomas Frankovich (“Frankovich”) were purportedly in the business of tracking down public accommodations with ADA violations and extorting settlements out of them. On cross examination, Molski acknowledged that: he did not complain to any of [the defendant's] employees about his access problems; he had filed 374 similar ADA lawsuits as of October 8, 2004; Frankovich had filed 232 of the 374 lawsuits; even more lawsuits had been filed since that date; Molski and Frankovich averaged $4,000 for each case that settled; Molski did not pay any fees to Frankovich; Molski maintained no employment besides prosecuting ADA cases, despite his possession of a law degree; Molski’s projected annual income from settlements was $800,000;2 Molski executed blank verification forms for Frankovich to submit with responses to interrogatories; they had also filed lawsuits against two other restaurants owned by Cable’s; they had filed a lawsuit against a nearby restaurant; and Sarantschin obtained up to 95% of his income from Frankovich’s firm for performing investigations for ADA lawsuits.

See Molski v. MJ Cable, Inc. here.

Despite these apparently damning facts, in its 2007 affirmance of the vexatious litigant finding, the Ninth Circuit noted some of the reasons why Molski and his lawyer could not be condemned for their pursuit of serial ADA litigation. The ADA, noted the Court,

does not permit private plaintiffs to seek damages, and limits the relief they may seek to injunctions and attorneys’ fees. We recognize that the unavailability of damages reduces or removes the incentive for most disabled persons who are injured by inaccessible places of public accommodation to bring suit under the ADA. See Samuel R. Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation, 54 U.C.L.A. L. Rev. 1, 5 (2006).

As a result, most ADA suits are brought by a small number of private plaintiffs who view themselves as champions of the disabled. District courts should not condemn such serial litigation as vexatious as a matter of course. See De Long, 912 F.2d at 1148 n.3. For the ADA to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individ- uals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA.

But as important as this goal is to disabled individuals and to the public, serial litigation can become vexatious when, as here, a large number of nearly-identical complaints contain factual allegations that are contrived, exaggerated, and defy common sense. False or grossly exaggerated claims of injury, especially when made with the intent to coerce settlement, are at odds with our system of justice, and Molski’s history of litigation warrants the need for a pre-filing review of his claims. We acknowledge that Molski’s numerous suits were probably meritorious in part—many of the establishments he sued were likely not in compliance with the ADA.

On the other hand, the district court had ample basis to conclude that Molski trumped up his claims of injury. The district court could permissibly conclude that Molski used these lawsuits and their false and exaggerated allegations as a harassing device to extract cash settlements from the targeted defendants because of their noncompliance with the ADA. In light of these conflicting considerations and the relevant standard of review, we cannot say that the district court abused its discretion in declaring Molski a vexatious litigant and in imposing a pre-filing order against him.

In other words, when the legislature puts the enforcement of the ADA in the hands of disabled individuals without permitting them to recover damages, you can't blame private attorneys for working the market created for the private enforcement of public laws even if you can blame them for the manner in which the market is worked.

So what does this have to do with the settlement of litigation and, in particular ADA Litigation?

Because these accessibility cases always cost more to defend than to settle and because they're often indefensible, the rational business decision is simply to settle the darn things.

No one, however, wants to be extorted. And in the few ADA cases I've mediated, it's the principled refusal to pay money at the point of a gun that interferes with a business establishment's willingness to do the economically "rational" thing rather than, say, try it; appeal it to the Ninth Circuit; and, pursue it to the Supreme Court of the United States.

For those representing defendants who are feeling extorted, I offer my own (previously posted) ADA mediated settlement story below.

(for full post on this particular ADA settlement and Charles Tilly's "Anatomy of Explanations," click here)

Mediators themselves are at least partially to blame for defendants' perceptions that they have been brought to the mediation table or settlement conference to be extorted. Mediators so often stress the expense of litigation as the primary reason to settle a lawsuit that many defendants justly feel their consent is being given to the barrel of a gun. And none of us wants to be robbed.

Legal extortion was the theme of a recent mediation I conducted with the Chinese immigrant owner of a small motel in Long Beach. A local attorney brought suit against Mr. Wu for his failure to have the required handicapped parking space in his lot and a ramp for access to the registration desk. The lawsuit sought available civil remedies under the Americans with Disability Act (the ADA). Whatever the motivation of the plaintiff and his attorney, the Code called for recompense.

In response to my comments on the requirements of the ADA, Mr. Wu told me a story about his immigration to the United States; the money he and his wife had raised to buy this small motel and the way they both worked twenty-four hours a day to staff it.

Neither Mr. Wu nor his wife recalled any disabled person who'd been unable to use the facility. Nor did he recognize the paraplegic man in the hallway waiting outside -- a man Mr. Wu wouldn't acknowledge as he arrived nor consent to meet in a joint session.

As Mr. Wu spoke, his attorney pulled from his briefcase a map of the street on which his client's motel was located. It flagged a dozen other motels whose owners had been sued by the same client and the same attorney.

"We didn't know about the rules," the motel owner said. "This attorney sues everyone," he insisted, stabbing his finger at the flags on the map. "Now we have done it. Complete," he said, as his attorney passed me photos of the required improvements. " Mr. Wu paused, his face flushed. "He's suing everyone. It's extortion. We won't pay."

Responding to Story with Code and Convention

Foolishly, I didn't respond to the extortion comment. Instead, I talked about making a business decision to settle the lawsuit for less than the cost of the defense. This was part convention and part techinal account.

The convention? It's better to settle even a frivolous lawsuit if the cost of defense exceeds the expense of settling.

The technical account? The ADA provides statutory remedies taht cannot be defeated by Plaintiff's motiviation for bringing suit. Nor would Mr. Wu win the case if he could prove that Plaintiff didn't try to register. Just driving by and feeling discouraged was enough.

Not surprisingly, Mr. Wu was not moved by either convention nor by my expertise on the requirements of the ADA.

"It's extortion," he said again. We were, as Malcolm Gladwell notes [in his article on Charles' Tilly's book "Why"] talking past one another.

My first concern was cross-cultural. Of course, I thought, not only was I talking code and convention, I was talking American code and convention to a Chinese immigrant. So I tried another angle.

"In your homeland," I asked, "how are building codes enforced?"

The defendant laughed. "Bribes," he said. It's getting better I think. But still. A lot of bribes."

"Here," I replied, "the building inspectors don't usually take bribes. I'm sure there are exceptions. But on the whole," I continued, "the inspectors enforce the codes without taking money. In this country, lawyers do a lot of the enforcing. And they get paid to do it. I'll wager that some Chinese businessmen consider bribes a part of the cost of doing business. Here, business people often consider payments to settle lawsuits a similar cost of doing business."

Not placated in the least, Mr. Wu continued to insist that he would not be extorted.

So much for cross-cultural translation. Mr. Wu's repeated insistence on framing the conflict as a matter of principle -- not giving in to extortion -- was a sure sign I was missing the heart of the conflict. Mr. Wu was telling a story of injustice and I continued to respond with business sense and legalisms. How frustrated he must be with me. I tried again.

Responding to Story with Story-Telling

"Let me start again," I said. "The way I understand it, you purchased the motel without any of the required handicapped access improvements and you didn't know you were required to upgrade. Is that right?"

"Yes," he said, more eagerly than before. "No one needed to sue us. If we'd been asked to upgrade, we would have. And look," he said, pointing to the photos scattered on the conference table, "as soon as we knew, we complied."

I again examined the photos and said, "but you didn't make these improvements until you'd been sued by the gentleman in the wheelchair outside the door. The one who said he drove by your motel but didn't bother stopping because he could see there was no way for him to get in."

"He said that?" asked Mr. Wu, his interest growing.

"That's what he told me," I responded. "He needed a place to stay and he drove past all these motels that you've flagged here, and he couldn't get in to a single one of them."

Mr. Wu was shaking his head slowly up and down now, in the way we do when we're considering information that sounds newly plausible to us.

I continued. "Mr. Smith was in a car accident a couple of years ago and won't walk ever again. He's only thirty years old. It's not just the wheelchair that is so confining to him. It's his inability to go where people not in wheelchairs are able to go."

Mr. Wu was silent, but still thoughtfully nodding his head.

"Some of the money you pay -- if you pay the plaintiff rather than your attorney -- some of that money will go to Mr. Smith. It won't all go to his attorney. And I think that money will help him out. You could see your payment as a charitable act or simply a way of saying you're sorry that Mr. Smith wasn't able to use your motel."

Then I waited.

I could see the motel owner begin to sag under the weight of resignation. His righteous indignation had been spent. There was someone else involved in this conflict. Someone who was even more challenged and more impoverished that Mr. Wu thought of himself as being.

"So, it's at least a bit of rough justice to settle," I proffered. "Not extortion, do you think?"

The Pay-Off -- Material and Personal

This was a rush of reason-giving. Story. Convention. Code. As Gladwell notes, "one kind of reason is never really enough." And the right reasons, or at least the "good enough" reasons did the trick in this instance. The case settled for a small amount of money, less than the cost of defense. I had, of course, also told the plaintiff and his attorney Mr. Wu's story of hardship and his efforts to do the right thing. They lowered their demand in response.

More important than settling the case, was listening to both sides' stories and responding to each with a story from the other. This is what allowed the parties to leave the mediation feeling better than when they'd arrived. Mr. Wu acknowledged his part in the conflict and accepted responsibility for it. And Mr. Smith was able to exercise a bit of generosity by accepting less money from Mr. Wu than he had from the other motel owners he'd sued.

On his way out the door, Mr. Wu thanked me for helping him to understand. Then he stopped by Mr. Smith in the hallway and offered his hand. I couldn't help thinking that some degree of fellow-feeling had been created. At the very least, the rancor was gone. The resentment that someone once told me was like drinking poison and then waiting for the other guy to die.

Whether we're mediating someone else's dispute or negotiating our own business deals, we sometimes manage not only to make the right business decision, but to make the right people decision as well. And resolution just doesn't get any better than that.

Studies Draw Positive Conclusions about Consumer Arbitration

Thu, 20 Nov 2008 16:59:20 GMT

The Current State of Consumer Arbitration authors Sarah Rudolph Cole and Theodore Frank take a look at empirical evidence on consumer arbitration in the Fall issue of the ABA Dispute Resolution Magazine. After analyzing the Public Citizen report and evidence collected in California and elsewhere, they conclude that claims that arbitration is inherently unfair to consumers are overstated. Data, in

Master the geography of collaboration with the latest edition of The Complete Lawyer

mail@mediationchannel.com (Diane Levin) — Thu, 20 Nov 2008 16:47:16 GMT

The latest edition of The Complete Lawyer is now available, putting the focus on “Doing Business Internationally.” The Complete Lawyer is a web-based magazine focusing on quality of life and career satisfaction for attorneys but with relevance for dispute resolution professionals as well. It features a regular ADR column, “The Human Factor“, which explores ADR [...]

The latest edition of The Complete Lawyer is now available, putting the focus on “Doing Business Internationally.” The Complete Lawyer is a web-based magazine focusing on quality of life and career satisfaction for attorneys but with relevance for dispute resolution professionals as well. It features a regular ADR column, “The Human Factor“, which explores ADR from the perspective of four attorneys who mediate - me and three colleagues, Stephanie West Allen of Idealawg and Brains on Purpose, Gini Nelson of Engaging Conflicts, and Victoria Pynchon of Settle It Now Negotiation Blog . The four of us alternate as writers.

It’s my turn this month with this particular installment of “The Human Factor”, where I invite readers to “Master the Geography of Collaboration.

The Complete Lawyer is published by Don Hutcheson, a good friend to the four of us and an enthusiastic supporter of “The Human Factor”. Thanks, Don, as always for your encouragement — we are all deeply grateful.

Massachusetts Uniform Mediation Act: time to make your opinion count online or in person

mail@mediationchannel.com (Diane Levin) — Thu, 20 Nov 2008 16:28:25 GMT

Since 2006, a group of mediators in Massachusetts, designating itself the MassUMA Working Group, has met regularly to discuss the adoption of the Uniform Mediation Act (”UMA”) in the Commonwealth. The UMA protects communications made during a mediation and establishes a limited evidentiary privilege that prevents the use of those communications in subsequent legal proceedings. The [...]

The UMA protects communications made during a mediation and establishes a limited evidentiary privilege that prevents the use of those communications in subsequent legal proceedings. The UMA could replace the current law in Massachusetts, M.G.L. ch. 233, § 23C.

During the course of two years, the MassUMA Working Group through the efforts of its subcommittees has produced recommendations and most recently an amended version of the UMA for consideration and public commenting.

The Working Group has scheduled the following public meetings to provide information about the UMA and invite input from mediators and the general public:

Friday, November 21, 2:00 - 4:15 p.m., Fehlow Room, Main Library, 132 South Street, Plymouth, MA
Monday, November 24, 1:00 - 4:00 p.m., Greenfield Community College (downtown campus), Greenfield, MA

(FYI, I’ll be facilitating the meeting on November 24 in Greenfield.)

In addition, two meetings of the MassUMA Working Group, also open to the public, will be held on the following dates:

Thursday, December 4, 2008, 3-5 p.m.
Tuesday, December 16, 2008, 2-5 p.m.

These meetings will take place at the offices of the Federal Mediation and Conciliation Services, 99 Summer Street, Boston, MA. If you cannot attend in person, you can still participate by phone by calling 712-429-0690, enter access code 317609 and wait for other participants.

The public (that’s you) is strongly encouraged to comment online on the amended version of the Uniform Mediation Act proposed by the MassUMA Working Group, known as the UMA One Text.

If you’re interested in my two cents, you can read my objections to the amended version in an article I posted a year ago, “In weighing the Uniform Mediation Act, Massachusetts mediators may be poised to repeat mistakes of the past. I’m planning to revisit and refine those objections in an upcoming post soon.

Almighty Tax Lien Loses Battle to Environmental Escrow in Condemnation Action

tduggan@stark-stark.com (Timothy P. Duggan) — Thu, 20 Nov 2008 13:05:42 GMT

Recently, the Appellate Division of the Superior Court of New Jersey was required to determine whether the holders of tax sale certificates for unpaid real estate taxes were entitled to be paid from the proceeds of a condemnation award when the estimated environmental clean-up costs exceed the fair market value of the property. After a thorough review of the law, the court held that the tax liens could not be paid until the amount of the environmental liability was determined, even if it meant that the tax liens may never get paid.

In Township of Haddon v. Morgan Brothers, et al., Haddon Township sought to acquire a parcel of real estate by the exercise of its power of eminent domain. After the complaint was filed, Haddon Township deposited $280,000 with the court which was the Township’s estimate of the fair market value of the property “as if remediated”. The Township also admitted into evidence an expert report alleging that the amount necessary to remediate the environmental contamination was estimated to exceed $1.3 million.

The holder of several tax sale certificates sought to withdraw $125,000 from the $280,000 deposit which was the amount due on the tax sale certificates. The tax certificate holders argued that as first priority liens under New Jersey law, they were entitled to be paid before any other party in the case. However, the estimated clean-up costs were approximately $1.3 million and greatly exceeded the value of the property. The court was asked to determine whether the tax certificate holders were allowed to be paid from the $280,000 being held in escrow, or whether the certificate holders were required to wait to see if there was any money available after the clean-up was completed.

Under New Jersey law, when a condemning authority deposits the estimated value of the property into court and files a declaration of taking, title to the property transfers to the condemning authority. Liens against the property attach to the deposit in priority order. Parties with an interest in the funds are entitled to file a motion with the court to withdraw funds in the order of their priority. For example, a mortgage holder is entitled to withdraw the balance due on its mortgage before the property owner receives any funds. The same holds true for a tax certificate holder who is entitled to be paid before all mortgages, judgments liens and the owner. This is the case when there are no environmental problems.

When there are environmental problems, the process for withdrawing funds is changed. The condemning authority is entitled to introduce into evidence an environmental report disclosing the estimated clean-up cost for the property and request that the estimated clean-up costs be withheld from the amount on deposit until the clean-up is completed. For example, if the “as remediated” value of the property is $300,000 and the estimated clean-up costs are $100,000, the property owner and lienholders are only entitled to withdraw $200,000 from the $300,000 on deposit, with the balance of $100,000 to remain in escrow pending the completion of the environmental clean-up. The term “as remediated” means the value of the property assuming all environmental remediation has been completed.

The Appellate Division ultimately held that the tax liens may only be paid from funds remaining after Haddon Township is reimbursed for the remediation costs. Under the facts in the case, it was unlikely there will be any remaining funds remaining due to the high cost of remediation.

The case is based upon sound reasoning. Looking at the Haddon Township case, if a property is worth $280,000 “as remediated”, but it costs $1.3 million to remediate it, it has negative value. After the remediation is completed, the property is only worth $280,000. It would be unfair to allow the property owner (or lienholders) to keep the $280,000 which is a direct result of the $1.3 million spent to clean up the property.

To err is human: how do we keep our feet out of our mouths in the first place?

mail@mediationchannel.com (Diane Levin) — Thu, 20 Nov 2008 09:49:06 GMT

Last week, legal marketing guru Larry Bodine put his foot in it with a blog post describing the “Best ‘Elevator Pitch’ Ever…?”, courtesy of a “silver-haired senior-most litigator” who relies on a cheap joke about the Holocaust to woo business clients. Bodine’s readers responded with outrage, and, to his credit, Bodine deleted the post from his [...]

Bodine’s readers responded with outrage, and, to his credit, Bodine deleted the post from his blog and offered an apology that mediator Victoria Pynchon has described as “heart-felt”:

I sincerely apologize for the crude and offensive “Elevator Pitch” post I put online last week. In the clear light of morning, it is clear that it was anti-Semitic and repellent. I want to thank all the people who commented and called me about it; I listened and took what you said to heart.

I have deleted the post. It was a mistake to repeat a crude joke that I heard in rural Illinois, and I should have known better. It was a worse mistake to say it was the “best” of its kind, when actually it was hideous.

Curiously, at Legal Blog Watch, a well regarded blogger approvingly repeated Bodine’s anecdote in a post captioned “Great Elevator Pitch for Lawyers“. Quickly realizing her error, she amended her post to apologize for her mistake:

Law firm public relations expert Rich Klein makes the important point at his blog that an elevator speech making light of the Holocaust is offensive. Klein is right and I apologize to anyone whom this post may have offended.

Although Bodine’s apology has earned the praise of some, not everyone was willing to let him off the hook so easily, including one blogger from a family of Holocaust survivors.

But what interests me about this whole event is not so much the apologies that resulted, or their acceptance or rejection. Instead, I wonder how it is that two people, one who recounted the anecdote and one who repeated it, missed its offensiveness the first time around.

In a post published in The Situationist in the aftermath of the Don Imus firing last year, authors Jon Hanson and Michael McCann mused,

…the stereotypes that we purport to abhor when articulated explicitly reside within most of us unexamined and unchallenged, sometimes wielding influence on our cognitions and behavior. We are, in a way, all carriers of the same virus…

What happened to these two bloggers could happen to you or me. We, too, are susceptible; it is all too easy for any of us to err. Without warning, we can all be deaf to the import of our words, blind to their effect. In the end, we can only learn from incidents like these. As James Joyce wrote, “A man’s errors are his portals of discovery.” Experiences such as these can build our immunity to the viruses within us. And healing will come — through prevention and, yes, through apologies.

Translation Experts and Legal Protections against Research on Human Subjects in Developing Nations

translate@languagealliance.com (All Language Alliance, Inc.) — Wed, 19 Nov 2008 16:45:35 GMT

We've blogged about pharmaceutical translations in the context of the European Union's fast track approval process for US pharmaceuticals, and about professional translations of foreign regulatory evidence in products liability cases. Professional pharmaceutical and technical translations provided by multilingual translation...We've blogged about pharmaceutical translations in the context of the European Union's fast track approval process for US pharmaceuticals, and about professional translations of foreign regulatory evidence in products liability cases. Professional pharmaceutical and technical translations provided by multilingual translation experts are equally important for the new sector of international law, pertaining to the use of human subjects for pharmaceutical testing and research. Since this practice is heavily regulated in the United States, many companies are turning to developing nations that typically lack such protections. As regulations and protections are being implemented - thus creating a new sector of international law- and as with any law involving various foreign jurisdictions, foreign language translations play an important role.

The foundation of this body of law arises with the post-World War II Nuremberg Trials, where Nazi physicians who engaged in human experimentation were charged with war crimes and crimes against humanity. The result was what is referred to as the Nuremberg Code, which sets the framework for both US federal regulations and international guidelines as applied to human experimentation.

The Nuremberg Trials led to the founding of the World Medical Association and the subsequent adoption of the Declaration of Helsinki, a body of international law that specifically addresses the ethics of research on human subjects. Further, the Council for International Organization of Medical Sciences - in collaboration with the World Health Organization - publishes international human subjects ethical guidelines based on the principles of both Nuremberg and Helsinki.

In terms of the United Nations, the International Covenant on Civil and Political Rights (ICCPR) addresses the subject. According to the ICCPR, "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation."

See Wollensack, Amy F. 2007: "Closing the Constant Garden: The Regulation and Responsibility of U.S. Pharmaceutical Companies Doing Research on Human Subjects in Developing Nations". Washington University Global Studies Law Review. Vol 6:747.

Going Green Should Not Increase You Tax Obligations

tduggan@stark-stark.com (Timothy P. Duggan) — Wed, 19 Nov 2008 13:05:32 GMT

Tax Appeals attorney, Timothy P. Duggan, and Green Building attorney, Vincent J. Mangini, co-authored the below post:

Imagine the situation where a conscientious property owner decides to install solar panels in an effort to reduce his or her energy costs and help the environment. Then, imagine further, that once the work is completed, the local tax assessor increases the property’s tax assessment arguing that solar panels are an improvement to the property, which causes the property’s fair market value to appreciate. The resulting taxes from this higher assessment could end up off-setting all or most of the energy savings generated by the solar panels, thereby discouraging property owners from making investment in green building technologies and processes. Clearly, this is not an acceptable outcome for the property owner or the general public and, apparently, the our state government agrees. In June, 2008, the New Jersey State Legislature overwhelmingly passed a bill, which Governor Jon Corzine recently signed into law on October 1, 2008 (P.L. 2008, ch. 90; codified at N.J.S.A. 54:4-3-113a, et seq.), that provides a tax exemption for the increase in value to real property attributable to the installation of renewable energy systems - and the new law does not just benefit homeowners.

Under the new law, a “renewable energy system” is “[a]ny equipment that is part of, or added to, a residential, commercial, industrial, or mixed use building as an accessory use, and that produces renewable energy onsite to provide all or a portion of the electrical, heating, cooling, or general energy needs of that building.” The term “renewable energy” is defined broadly to include, among other things, “(1) electric energy produced from solar technologies, photovoltaic technologies, wind energy, fuel cells, geothermal technologies, wave or tidal action, . . .; and (2) energy produced from solar thermal or geothermal technologies.”

In order to obtain a renewable energy systems exemption, a property owner must make a written application for certification to the local enforcing agency (i.e. building inspector) under oath and once the application is received, the local enforcing agency must review it for compliance with all legal requirements. If a property owner is denied the certification and wants to appeal, an appeal may be filed with the local construction board of appeals. In the event a property owner’s work is certified, but the local tax assessor imposes an unreasonable tax assessment on the property, the aggrieved property owner may file an appeal with the county tax board or State Tax Court in accordance with the court rules.

It also be noted that the exemption from taxation for the renewable energy system shall not become effective until the tax year following the year in which certification has been granted.

In conclusion, the aforesaid enactment is a good law. It will prevent property owners, who “go green,” from being penalized by local taxing authorities with higher real property taxes. However, property owners seeking to take advantage of this new benefit should familiarize themselves with the entirety of the new law and all applicable forms and regulations, as may be adopted by state agencies. The procedures to obtaining the certification must be followed in order to take advantage of the exemption.

Potential Jurors in My Space Suicide Case Enraged

vpynchon@settlenow.com (Victoria Pynchon) — Wed, 19 Nov 2008 01:28:55 GMT

Defense Says Jury Pool Filled With 'Viciousness' Towards Lori Drew

LOS ANGELES — The pool of potential jurors assembled for the trial of Lori Drew is tainted by a deep animus for the 49-year-old Missouri woman accused of helping drive a 13-year-old girl to suicide, Drew's defense attorney said Tuesday.

After reviewing answers to questionnaires filled out by 75 jury candidates Tuesday afternoon, defense attorney H. Dean Steward found that 80 percent of the panel had previously heard of the case, and 50 percent held "devastating opinions" of his client, Steward told U.S. District Judge George Wu.

"The viciousness that comes out in this is stunning," said Steward.

The 17-question form, given to potential jurors as the first step in a screening process, includes this query: "You will hear evidence in the case about the suicide of a 13-year-old girl. Can you put aside any sympathy, pity or sadness you may feel as a result of this evidence, and fairly and objectively evaluate it, along with the other evidence in this case?"

Continue reading here.

Thanks to Anne Reed of Deliberations for the head's up (follow her @annereed)

Caught In The Legal Recession?

richardjwebb@mac.com (Richard J. Webb) — Tue, 18 Nov 2008 17:55:00 GMT

Legal periodicals these days are filled with stories about the effects of the current economic downturn on the legal profession. Some offer dire predictions, while others see a cloud with a silver lining. The American Bar Association wants to feel the pulse of its members on this issue and share the result of its efforts. You can go to the poll being conducted for the ABA by Survey Monkey to participate. Paste this into your browser bar to participate:

http://www.surveymonkey.com/s.aspx?sm=9Dhw2g7bX_2bxfq4mW8eB1Cg_3d_3d

Tear yourself away from watching your 401(k) and give this poll about two minutes of your time. I did, and it made me feel better.

[Image: Fishing net, by Goddard Spaceflight Center Sport Fishing Club, May 15, 2003]

New FMLA Regulations

eoverton@sullivan-ward.com (Liz Overton) — Tue, 18 Nov 2008 15:17:37 GMT

New FMLA Regulations have been published and will become effective January 16, 2009. Daniel Schwartz of the Connecticut Employment Law Blog identifies things employers need to be aware of. I encourage you to read his article which is the first of a series outlining what changes employers need to make or be aware of by January 16 2009.

Remember the WARN Act

jmacdonald@stark-stark.com (John E. MacDonald) — Tue, 18 Nov 2008 13:03:54 GMT

Many of you may remember the Federal Warn Act - an Act which requires 60 days notice of a company’s intent to shut down a location with 100 or more employees (with various exceptions, of course). What is not largely known is that New Jersey passed a “baby” Warn Act earlier this year.

This Act reduces the number of required full time employees from 100 to 50. The New Jersey WARN Act also eliminates the useful exception in the federal Act, which allows for termination of employees within a certain time period and other exceptions, which weakened the original federal Act.

In short, the New Jersey Warn Act is a force to be reckoned with as we head deeper into the current recession. Employers shutting down any office location should seek legal counsel prior to taking action.

How to Apologize on the Internet: Larry Bodine Comes Clean

vpynchon@settlenow.com (Victoria Pynchon) — Tue, 18 Nov 2008 04:35:03 GMT

Some attorneys and mediators make light of the power of the apology ("it's only about money"). My education, training and experience consistently suggest otherwise.

Today, we learn a lesson in heart-felt apology from Larry Bodine for a post I hadn't seen, but which Bodine himself admits was anti-Semitic.

"Elevator Pitch" Post Deleted I sincerely apologize for the crude and offensive "Elevator Pitch" post I put online last week. In the clear light of morning, it is clear that it was anti-Semitic and repellent. I want to thank all the people who commented and called me about it; I listened and took what you said to heart.

If you read on here you'll see that Bodine did not simply say "I'm sorry." He removed the admittedly offensive post; disowned it; and, empathized with those who found it offensive by sharing his own family's WWII imprisonment story.

As my Second Track International Diplomacy Professor Brian Cox has written in his book Faith-Based Reconciliation

Words that heal include expressions of caring, concern, gratitude and affirmation. [I]n demolishing the walls of hostility, we must be prepared to examine our own pattern of spoken words and embrace the practice of ethical speech. . . .

Because Bodine himself admitted the anti-Semitic nature of his post, it falls into the category of an identity-based conflict with some or all of his readers. Though speaking from a religious or "faith-based" viewpoint, I always found Cox' prescriptions for resolution to work equally well from the point of view of secular humanism. As Cox explains:

A faith-based reconciliation framework applied to an identity-based conflict . . . consists of six basic elements: imparting moral vision, building bridges between estranged groups, a peace accord, advocacy for social justice, political forgiveness, and healing deep collective wounds.

More particularly, Cox recommends the following specific steps:

1. Sharing life journeys and building common ground.

2. Sharing perceptions of the conflict.

3. Engaging in problem solving.

4. Sharing how one has caused offense to the other.

5. Exploring each community's narrative of history and perception of historical wounds.

If you read Bodine's spontaneous apology, you will see all of these elements contained in it. This is not surprising because apology and attempts to re-build interpersonal bridges are hard-wired into us as toddlers. As I wrote in "Shame by Any Other Name,"

Shame . . . "acts as a powerful modulator of interpersonal relatedness and . . . ruptures the dynamic attachment bond between individuals." 30 When an individual has broken this bond, he wishes to recapture the relationship as it existed before it turned problematic. 31 Toddlers shamed by their mothers, for instance, naturally initiate appeals to repair the momentary break in the emotional bond resulting from the shame-inducing behavior. 32 This process is called self-righting. 33 It is natural and universal. 34 The shamed toddler reflexively looks up at and reaches toward his mother. 35 Even a preverbal child will spontaneously express this need to be held in an attempt to reaffirm both self and the ruptured relationship, to feel restored and secure. 36

A healthy and responsive mother accepts and assuages the child's painful feelings of shame, enabling the toddler to return to a normal emotional state, one in which love and trust are ascendant. 37 If the caregiver is "sensitive, responsive, and emotionally approachable," especially if she uses soothing sounds, gaze and touch, mother and child are "psychobiologically reattuned," the "interpersonal bridge" is rebuilt, the "attachment bond" is reconnected, and the experience of shame is regulated to a tolerable emotional state. 38

This may all seem excessively academic. The point is that we all trespass on the feelings of others; those feelings are critical to our connection with one another; our connection with one another is critical not only to our sense of well-being, but to our very survival; the desire for reconciliation is therefore natural, as is our desire to be forgiven, our expression of remorse, our explanation for our momentary lapse of consideration and our fellows' willingness to forgive, particularly where we bare ourselves and our histories to one another in the course of our effort to re-establish what joins us and to move beyond that which divides us.

And for that lesson, we owe thanks to Larry Bodine this evening.

Will Dems Ban Mandatory Consumer/Employee Arbitration?

vpynchon@settlenow.com (Victoria Pynchon) — Tue, 18 Nov 2008 02:25:02 GMT

This just in on the same day I attended the AAA's Expedited Case training. As an ADR practitioner I favor party "choice and voice" in all dispute resolution venues, meaning that I frown on adhesion contracts of all types, including those that are unfairly imposed upon consumers and employees. The devil in the detail, of course, is the meaning of the term "unfairly." I am unfamiliar with the proposed law subject of this article and neither support nor oppose it. Just keeping my readers informed.

Democratic Party control could ban mandatory arbitration, expert says

11/17/08

Jan Dennis, Business & Law Editor
217-333-0568; jdennis@illinois.edu

Click photo to enlarge

Photo by L. Brian Stauffer

Michael LeRoy, a professor of law and of labor and employment relations, says Democratic Party control in Washington could restore lawsuits as an option for workers and consumers now forced to settle disputes through mandatory arbitration that gives employers and businesses an unfair edge.

CHAMPAIGN, Ill. — Democratic Party control in Washington could restore lawsuits as an option for workers and consumers now forced to settle disputes through mandatory arbitration that gives employers and businesses an unfair edge, a University of Illinois labor law expert says.

Michael LeRoy predicts a bill sponsored by Democrats that would bar companies from imposing arbitration will likely be approved next year when Democrats take over the White House and add to their majorities in Congress.

The measure, introduced last year but stalled by the prospect of a Bush administration veto, would halt a shift that has grown since a 1991 U.S. Supreme Court ruling allowing firms to require arbitration rather than courts to resolve disputes, he said.

For full article click here.

Weekly Blawg Review Focuses on Law Students

Mon, 17 Nov 2008 22:39:12 GMT

This week's roundup of the "best" legal blog posts, Blawg Review # 186, centered around law students and even included a National Arbitration Forum blog post mention! Law students like Res Ipsa Blog blog author Benson Varghese and his readers may be interested in our recently discussed topic--the annual Arbitration Competition for law students. Read the blawg review below, or access it in its

Cases Where Apology Would Get You Farther than Cash

vpynchon@settlenow.com (Victoria Pynchon) — Mon, 17 Nov 2008 15:41:43 GMT

Excerpt below. Full story here.

FORT PIERCE, Fla. – Authorities say an 11-year-old boy hit his mother in the head with a saw and then offered her $5 not to call police.

H/t to @SCartierLiebel in my Twitter network.

Redevelopment Takings - Constitutional Authority and Limitations

vmangini@stark-stark.com (Vincent J. Mangini) — Mon, 17 Nov 2008 13:07:10 GMT

The redevelopment of blighted areas is specifically and separately described in Article VIII, Section 3, paragraph 1 of the New Jersey Constitution as “a public purpose and public use, for which private property may be taken or acquired.” Any such taking, however, must satisfy all constitutional mandates and limitations on government power. For example, Article I, paragraph 20 of the New Jersey Constitution requires that a condemning authority pay just compensation when it acquires private property. A government entity desirous of taking private property must also comply with all due process requirements before it may do so.