Book Reviews in Brief

Vol. 20 No. 1

By

Outsourcing Justice: The Rise of Modern Arbitration Laws in America

By Imre Szalai

Reviewed by Benjamin G. Davis

This book pulls back the veil on the forces and actors that were crucial to the passage of the Federal Arbitration Act in 1925. At the center is Charles Leopold Bernheimer, a successful cotton goods merchant who is generally thought to be the father (or one of two fathers) of commercial arbitration.[1] Starting in 1907 and continuing as head of the Arbitration Committee of the New York Chamber of Commerce as of 1910, Bernheimer worked indefatigably to promote arbitration as an efficient means of resolution of commercial disputes. He garnered support among the business community across the nation and the world (including a nascent International Chamber of Commerce Court of Arbitration), forged strong ties to key members of the legal community and the American Bar Association, lobbied state and federal governments aggressively, and carefully carved out “industrial disputes” to avoid antagonizing labor. Bernheimer and his colleagues orchestrated a reform of American arbitration law with ramifications we experience today.

Outsourcing Justice relates the public/private nature of arbitration’s rise with interesting historical nuggets, including the formation of an arbitration committee in 1768, soon after the creation of the New York Chamber of Commerce and the New York legislature’s establishment in the 1870s of a Court of Arbitration, which operated as a joint venture between the chamber and the state. During the First World War, the US government referred disputes with an international character to the New York chamber.

More broadly, Szalai firmly anchors Bernheimer’s efforts in the reform movement associated with Roscoe Pound’s 1906 speech to the American Bar Association, the progressive movement, the rise of the administrative state, and the reform of the federal court procedure culminating in the development of the federal rules of civil procedure.

For those of us who consider Scherk and later Mitsubishi as key American international commercial arbitration decisions that paved the way for statutory claims being arbitrable, Szalai takes us to an earlier era when American common law did not enforce arbitration clauses for contractual claims and thus undermined American business’ credibility in international commerce. Beyond state or national concerns, we learn that Bernheimer’s awareness of the interests of the international business and legal community played a central role in New York State passing its arbitration law in 1920 that made arbitration clauses valid, irrevocable, and enforceable. New York state’s adoption of the New York Arbitration Act, coupled with the efforts of similar forces in other states, spurred the development of other arbitration acts and ultimately the Federal Arbitration Act. 

Szalai chronicles the business community’s central role in promoting arbitration in the early twentieth century. He situates arbitration as part of the development of self-regulation and as a form of expert-based regulation presaging the administrative state of federal administrative agencies with specialized expertise.

Szalai provides important background on the reasons for the skeletal nature of the Federal Arbitration Act (Bernheimer, he notes, envisioned it would be improved and amended). He ends with a critique of the existence of employment arbitration and a significant portion of consumer arbitration based on “take-it-or-leave-it” contracts. From this history it appears clear that the now-familiar arbitration of employment and consumer disputes was rejected by the drafters as beyond the scope of the Federal Arbitration Act. 

Szalai’s book is a must-read. He provides an evenhanded discussion of Bernheimer’s success in harnessing business forces to reshape American arbitration law and suggests those business forces have continuing influence on the subsequent federal decisional law.

Benjamin G. Davis is an Associate Professor of Law at the University of Toledo College of Law. He can be reached at ben.davis@utoledo.edu.


Designing Systems and Processes for Managing Disputes

By Nancy Rogers, Robert Bordone, Frank Sander, and Craig McEwen

Reviewed by Tricia S. Jones

As the authors of this excellent book note, it has been almost three decades since the basic concept of dispute system design was introduced by William Ury, Jeanne Brett, and Stephen Goldberg in their influential volume Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict. This new book breaks new ground and can be appreciated for its individual contributions, but it can also be rightly regarded as a third generation of thinking in dispute system design.[2] Readers will differ on how well this book serves the various audiences for which it was written – lawyers, non-attorney practitioners, and scholar-practitioners of large system dispute design. Ultimately, the text centers on the primary audience of “lawyer as designer” and thus emphasizes how a lawyer’s expertise can be leveraged in design with respect to confidentiality and implementation. To my mind, all intended audiences will find value in the content and pedagogical presentation of the text.

Designing Systems and Processes is a call to action and a guide to accomplishment. The authors want to encourage “design initiative” so that people, especially lawyers, will be emboldened to design better dispute systems and processes.

Rogers et al write for dispute professionals working in a very broad set of contexts, including schools, courts, and organizations. In a long-needed and absolutely critical move, the authors address the difficult underlying tensions or dilemmas that designers face – justice and reconciliation versus effectiveness and efficiency. Indeed, the inclusion of these tough questions testifies, more than any other feature of the book, that as a field, dispute design has matured. It is not enough to know that design can be done; it is important to justify why it is being done and with what results.

The book is replete with rich pedagogical resources. The authors present useful and entertainingly written stories of designs that have worked or failed, a good overview of research on design effectiveness, and a decent presentation of relevant conflict and dispute theory. The stories transform the volume into a rich history of our field as well as exemplars of best practices and cautionary tales. The authors include designer practice notes throughout chapters, and each chapter has questions and exercises and rich appendix resources.

The authors raise important questions that are only partially answered or left unattended, such as “What happens when multiple designers on the same dispute have different design initiatives?” or “What responsibility do designers owe to others who have different goals?” They briefly discuss “designing collaboratively” but don’t grapple as much as desired with real problems about who has the right to design and under what circumstances. They need to include more theory and research from an organizational or systems perspective, given the power they encourage designers to take. The discussions on taking the initiative are written too much from the perspective of the designer.

The questions that are not asked as often with as much emphasis (or even at all) include “Who should have the right to design?”; “What are the responsibilities of the designer to the larger system and society?”; and “What accountability structures and processes should be considered to protect the system?” And, finally, although this book deals with dispute systems design, it does not pay enough attention to questions about sustaining the dispute system once it has been designed and implemented.

This book inspires the reader to raise these questions – even if it falls slightly short in addressing them – and that inspiration is proof enough that the book should quickly be added to the canon of dispute system design literature.

Tricia S. Jones is a Professor in the department of Psychological Studies in Education at Temple University. She can be reached at tsjones@temple.edu.


The Spirit of Compromise: Why Governing Demands It and Campaigning Undermines It

By Amy Gutmann and Dennis Thompson

Reviewed by Jen Reynolds

Many law schools do not teach compromise. They teach rules. They teach advocacy. My own experiences as a law professor who also participates in broader pedagogical discussions around ADR suggest that classes in problem-solving, interest-based negotiation, and mediation often emphasize integration (expanding the pie) rather than distribution (dividing the pie). Professors assign idealized fact patterns that suggest win-win results are available when parties disagree.  

But law school graduates soon discover in practice that even in the best of circumstances, a win-win situation is pretty rare. This is even more the case in complex disputes that involve not only conflicting interests but principles and personhood. So lawyers settle, clients make concessions, and the promise of integrative theory seems largely confined to simple disputes and role-plays.

Why don’t we teach law students that their jobs will mostly be about making compromises? Perhaps we are part of a larger sociopolitical trend against admitting that compromise is necessary and even desirable. In this book, Amy Gutmann and Dennis Thompson argue that the “compromising mindset” – in their view, a requirement of normal political life and healthy democratic government – has fallen into disfavor in the era of the permanent political campaign. Elected officials work under impossible pressures to maintain an uncompromising partisan profile for public consumption, while also trying to legislate effectively with people who have different, uncompromising partisan profiles. “[T]he internal tension in political compromise,” the authors write, is that “the democratic process requires politicians both to resist compromise and to embrace it.”

Gutmann and Thompson address this tension by reclaiming the “classic compromise” (each side sacrificing something of value in the interest of making a deal) as politically and morally defensible, given that the status quo is often undesirable from the standpoint of social justice. As an example, the authors offer the case of the Tax Reform Act of 1986. Both Democrats and Republicans achieved key objectives in the final package but had to make significant concessions to get there. Democrats closed loopholes for the wealthy but had to agree to lower rates for the highest earners. Republicans were pleased to secure these lower rates but had to permit a substantial decrease in tax deductions that otherwise would have benefited their wealthy constituents. Neither side was perfectly happy with the result, yet both sides ended up getting some of what they wanted, and much-needed legislation went forward.

Gutmann and Thompson recognize that the Tax Reform Act, like all compromise legislation, is internally inconsistent as a matter of policy. They do not, however, believe that this inconsistency is troubling. Rather, the authors interpret the conflicting policy positions inherent in legislative compromises as evidence that the polity is attempting to advance the overall political agenda despite having such divergent priorities.

Gutmann and Thompson do not dismiss integrative theory wholesale – they note that integrative approaches can be useful in coming to compromise – but they do not want their readers to imagine they can sidestep or forestall compromise with integrative or consensus solutions. Sometimes, as the Tax Reform Act example shows, progress is not possible without both sides conceding valuable interests. Further, the authors argue that seeking pie-expanding solutions in the legislative context often encourages lawmakers to load debt onto future generations.

For lawyers and neutrals, this really isn’t news. After all, many of us strive for justice with the full understanding that most cases settle. We know that compromise is essential to dispute resolution, just as we know that taking an uncompromising stand is sometimes necessary.

Attorneys who read this book will be challenged to consider whether and how our professional work as compromise-makers can be better theorized and effectively taught to law students, politicians, and voters. Furthermore, the book challenges dispute resolution practitioners and teachers to rethink how we address (or fail to address) the topic of compromise with our clients and students. To the extent that we perpetuate win-win idealism, how well are we preparing them for the responsibilities and realities of a democratic community?

Jen Reynolds is an Assistant Professor of Law and the Faculty Director of the ADR Center at the University of Oregon School of Law. Her research and writing focus primarily on cultural and system-level implications of alternative dispute resolution and decision-making processes. She can be reached at jwr@uoregon.edu.


[1] Events and the interplay among principal actors in the early period of the adoption of the New York Arbitration Law and the Federal Arbitration Act are also discussed in a wonderful law review article by Margaret Moses, Statutory Misconstruction: How the Supreme Court Created a Federal Arbitration Law Never Enacted By Congress, 34 Fla. St. U. L. Rev. 99 (2006).

[2] Second-generation books include, e.g., Cathy A. Costantino & Christina Sickles Merchant, Designing Conflict Management Systems: A Guide to Creating Productive and Healthy Organizations (1996); David B. Lipsky, Ronald L. Seeber & Richard D. Fincher, Emerging Systems for Managing Workplace Conflict: Lessons from American Corporations for Managers and Dispute Resolution Professionals (2003); Karl A. Slaikeu & Ralph H. Hasson, Controlling the Costs of Conflict: How to Design A System for Your Organization (1998).

 

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