Conflict Resolution

Advanced Problem-Solving Strategies

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Justice Scalia is known for his theory of interpreting the Constitution by reference solely to the text in light of the meaning that the drafters supposedly intended at the time they wrote it. In his book A Matter of Interpretation, Scalia has defended his approach as follows: Of all the criticisms leveled against textualism, the most mindless is that it is formalist. The answer to that is, of course it’s formalistic! The rule of law is about form . . . A murderer has been caught with blood on his hands, bending over the body of his victim; a neighbor with a video camera has filmed the crime and the murderer has confessed in writing and on videotape. We nonetheless insist that before the […]

I used to think, back when I was a naive young law clerk, and even into my first few years of practice, that the legal system should provide a clear answer to most legal questions. If you were to read and research carefully any random motion, say for summary judgment, or listen to all the evidence and argument presented in any civil case, the vast majority of the time, the system should provide the same answer to each problem.  Especially for pure questions of law. If we’re not all getting the same answer, we probably just haven’t analyzed the problem carefully enough. I still think that predictability is an important ideal, but I no longer think the legal system will […]

Let’s say you’re the mediator and the plaintiff’s attorney makes an initial demand of $20 million in response to which the defendant offers $2.5 million. You turn to the plaintiff and ask how he feels about settling his claims, and he walks out of the conference room, saying “Whatever all of you decide is ok with me.”  What do you do? This was the situation in the second episode of the new series Fairly Legal, which involved the mediation of a civil suit by an exonerated prisoner who was wrongfully imprisoned for more than 20 years. Most mediators in that situation would take the plaintiff at his word, especially since he has an attorney to represent his interests, try to […]