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Washington and Lee Law Review - Volume 73:4

Article

Realizing Rationality: An Empirical Assessment of International Commercial Mediation

by S. I. Strong

For decades, parties, practitioners and policymakers have believed arbitration to be the best if not only realistic means of resolving cross-border business disputes. However, the hegemony of international commercial and investment arbitration is currently being challenged in light of rising concerns about increasing formalism in arbitration. As a result, the international community has sought to identify other ways of resolving these types of complex commercial matters, with mediation reflecting the most viable option. Numerous public and private entities have launched initiatives to encourage mediation in international commercial and investment disputes, and the United Nations Commission on International Trade Law (UNCITRAL) has taken up a proposal from the U.S. Government to consider whether a new treaty involving international commercial mediation is warranted.

As promising as these developments may seem, very little is actually known about how the international community uses and perceives mediation in the cross-border business context. This type of informational deficiency hinders individual and institutional actors’ ability to operate in a rational manner. This Article therefore analyzes findings from the first-ever large-scale empirical study on international commercial mediation, providing hard data about current behaviors, beliefs, and practices and testing fundamental theories about the use, nature, and future of this particular process.

This Article provides a comprehensive analysis of several core issues. After discussing the theoretical basis for international commercial mediation, the Article analyzes groundbreaking empirical data on the use and perception of international commercial mediation. This information provides parties, practitioners, and policymakers with a critical understanding of how international commercial mediation differs from domestic mediation and helps corporations and institutions make strategic decisions on both an individual and systemic level. The Article then considers various normative issues, including those directly related to ongoing negotiations at UNCITRAL regarding a new international treaty in this area of law. In so doing, the discussion provides unique empirical insights into how the people who are most closely involved with international commercial mediation believe the field should develop.

This Article provides the national and international legal communities with critical information about the world’s fastest growing dispute resolution device. As the first empirical study dedicated to this particular issue, this Article lays the groundwork for future scholarship and policy work in the area of international commercial and investment mediation. Furthermore, by (dis)proving a number of key theories regarding mediation, the discussion revolutionizes the way this process is conceptualized by legal academics. The broad scope of the analysis makes this material relevant not only to readers in the United States but also to audiences around the world.

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Article

The Rhetoric of the Fourth Amendment: Toward a More Persuasive Fourth Amendment

by Timothy C. MacDonnell

In the last forty-five years, the United States Supreme Court’s jurisprudence through the lens of classical rhetoric. Opinions are assessed based on three areas of persuasion: appeals to logic (logos); appeals to emotion (pathos); and appeals to credibility (ethos). By examining the Justices’ opinions in this fashion, patterns of unpersuasive opinion writing emerge. While a common source for all unpersuasive opinions is not available, common patterns of weak persuasion in particular appeals do exist. Weak appeals to ethos commonly stem from Justices failing to fully confront the doctrine of stare decisis. Weak pathos-based appeals often involve Justices engaging in misplaced emotive arguments, where a Justice seeks to persuade by appealing to emotions that are disconnected from the Fourth Amendment or the facts of the case. Logically weak arguments usually include one or more logical fallacies. Misplaced pathos appeals and weak logos appeals often leave readers with the sense that these flaws stem from poorly disguised outcome-directed opinions. Any opinion written in this fashion runs the risk of appearing like an elaborate rationalization and thereby being unconvincing. Additionally, I assert that apparent outcome-directed judicial opinions, particularly Supreme Court decisions, violate one of the core principles of classical and modern rhetoric— that persuasive speech should be modified to account for the expectations of an audience. Fourth Amendment jurisprudence has been under siege. As early as 1971 one of the Court’s own members, Justice Harlan, stated there were “serious distortions and incongruities” in the Court’s Fourth Amendment case law. Since Justice Harlan’s criticism numerous scholars have echoed his dissatisfaction, calling the Court’s Fourth Amendment jurisprudence “unstable and unconvincing,” a “tar- baby,” and “a mass of contradiction and obscurity.” The Court itself seems as unconvinced by its own Fourth Amendment case law as the academic community. In 1967 the Court appeared to have placed the final nail in the trespass doctrine’s coffin, only to resurrect the theory in 2012. Between the 1980s and 2000s, the Court significantly altered the contours of the search incident to arrest doctrine with regard to automobiles. In 2006 the Randolph Court created the rule that one resident’s decision to permit police to search a home may not overrule another resident’s decision to prevent the search. Approximately eight years later, the Fernandez Court limited the applicability of the Randolph Court’s rule to such an extent as to make it virtually irrelevant.

The focus of this Article is on why many Fourth Amendment opinions are unconvincing. To answer this question, I analyze various Fourth Amendment opinions by the Justices of the United States Supreme Court between 2005 and today. I examine and evaluate the persuasiveness of the Court’s Fourth Amendment

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Article

Intrapreneurship

by Darian M. Ibrahim

This Article on “intrapreneurship” has several goals. First, it points out that while much of the legal literature on innovation is concerned with startups (entrepreneurship), the innovation that takes place inside our largest corporations (intrapreneurship) is substantial, important, and understudied. Second, the Article observes that while large technology corporations that used to be startups may remain intrapreneurial in culture, intrapreneurship is less common in the aggregate than we might expect. Reasons include organizational bureaucracy, laws favoring entrepreneurship, and what Clayton Christensen (Harvard Business School) calls “the innovator’s dilemma.” The innovator’s dilemma is, put simply, that good management causes large corporations to please existing customers with new and improved products at the expense of cultivating disruptive innovations that could replace those products altogether. Third, the Article detours to corporate law, which might, as a descriptive matter, play at the margins of the innovator’s dilemma and the entrepreneurial/intrapreneurial balance. Finally, the Article explores a hybrid approach—corporate venture capital—that combines entrepreneurial and intrapreneurial advantages. In corporate venture capital, a large corporation’s venture arm can invest in promising startups, and thus share in disruptive gains, without having to overcome obstacles to developing those projects internally. This Article on “intrapreneurship” has several goals. First, it points out that while much of the legal literature on innovation is concerned with startups (entrepreneurship), the innovation that takes place inside our largest corporations (intrapreneurship) is substantial, important, and understudied. Second, the Article observes that while large technology corporations that used to be startups may remain intrapreneurial in culture, intrapreneurship is less common in the aggregate than we might expect. Reasons include organizational bureaucracy, laws favoring entrepreneurship, and what Clayton Christensen (Harvard Business School) calls “the innovator’s dilemma.” The innovator’s dilemma is, put simply, that good management causes large corporations to please existing customers with new and improved products at the expense of cultivating disruptive innovations that could replace those products altogether. Third, the Article detours to corporate law, which might, as a descriptive matter, play at the margins of the innovator’s dilemma and the entrepreneurial/intrapreneurial balance. Finally, the Article explores a hybrid approach—corporate venture capital—that combines entrepreneurial and intrapreneurial advantages. In corporate venture capital, a large corporation’s venture arm can invest in promising startups, and thus share in disruptive gains, without having to overcome obstacles to developing those projects internally.

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Article

The “Ample Alternative Channels” Flaw in First Amendment Doctrine

by Enrique Armijo

In reviewing a content-neutral regulation affecting speech, courts ask if the regulation leaves open “ample alternative channels of communication” for the restricted speaker’s expression. Substitutability is the underlying rationale. If the message could have been expressed in some other legal way, the ample alternative channels requirement is met. The court then deems the restriction’s harm to the speaker’s expressive right as de minimis and upholds the law. For decades, courts and free speech scholars have assumed the validity of this principle. It has set First Amendment jurisprudence on the wrong course.

Permitting a speech restriction because the speaker could have communicated the same message another way distorts the First Amendment. Ample alternative channels analysis instructs courts to engage in counterfactual, post-hoc reasoning as to the expressive choices the speaker could have made, but didn’t—i.e., to substitute the court’s own value judgments for those of the speaker’s. The modern communications world expands the doctrine’s pernicious effects, since speech-facilitating technologies can always theoretically grant an alternative means of expression to any infringed speaker. And the origin of the doctrine, from Justice Harlan’s concurrence in United States v. O’Brien, shows that In reviewing a content-neutral regulation affecting speech, courts ask if the regulation leaves open “ample alternative channels of communication” for the restricted speaker’s expression. Substitutability is the underlying rationale. If the message could have been expressed in some other legal way, the ample alternative channels requirement is met. The court then deems the restriction’s harm to the speaker’s expressive right as de minimis and upholds the law. For decades, courts and free speech scholars have assumed the validity of this principle. It has set First Amendment jurisprudence on the wrong course. Permitting a speech restriction because the speaker could have communicated the same message another way distorts the First Amendment. Ample alternative channels analysis instructs courts to engage in counterfactual, post-hoc reasoning as to the expressive choices the speaker could have made, but didn’t—i.e., to substitute the court’s own value judgments for those of the speaker’s. The modern communications world expands the doctrine’s pernicious effects, since speech-facilitating technologies can always theoretically grant an alternative means of expression to any infringed speaker. And the origin of the doctrine, from Justice Harlan’s concurrence in United States v. O’Brien, shows that ample alternative channels analysis was in its incipiency a misguided afterthought—born, as historical Supreme Court case files never examined before this Article show, as literally a margin note to an unpublished draft.

In the place of ample alternative channels analysis, courts should ask whether a speaker’s chosen mode is incompatible with the government’s interest in the restriction in question. An incompatibility rule would be more consistent with the Roberts Court’s turn toward reviewing content-neutral speech restrictions rigorously, as evidenced in 2014’s McCullen v. Coakley.

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