This study investigates contracting mechanisms in situations of opportunistic disputes between organizations. The authors specifically explore the relationships between the formal versus informal nature of opportunism and the formal versus informal nature of contractual governance. They use a unique data set of 102 buyer–supplier disputes to explore in depth different types of opportunism – that is, strong form versus weak form opportunism – and different types of contracting mechanisms – that is, the controlling and coordinating functions of formal contracts and the cooperative and competitive sides of relational contracts. The authors’ detailed empirical analysis suggests distinct relationships between the different contracting mechanisms, the different types of opportunism, and the level of legal fees necessary to deal with the dispute. From these findings the authors derive implications for research on the role of contractual mechanisms in dealing with interorganizational opportunism.

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An empirical investigation of interorganizational opportunism and contracting mechanisms

This wide-ranging study considers the primary forms of decision-making - negotiation, mediation, and umpiring - in the context of rapidly changing discourses and practices of civil justice across many jurisdictions. Much contemporary discussion in this field, and associated projects of institutional design, are taking place under the wide ranging but imprecise label of Alternative Dispute Resolution (ADR). If a common linking theme is sought, the authors argue that this must lie in a general shift of priorities as between judgement and settlement in ideological terms. This new edition brings together and analyses a wide range of materials dealing with dispute processes and the current debates on civil justice. With the help of a selection of texts beyond those ordinarily found in the emerging alternative dispute resolution literature it provides a broad, comparative perspective on modes of handling civil disputes, with the principal focus on the central processes of negotiation and mediation.

Dispute Processes: ADR and the Primary Forms of Decision Making

List of Illustrations Preface Chapter 1: Introduction Chapter 2: Courts and Democracy Chapter 3: Privatization of Civil Courts Chapter 4: Other State-Based or Sanctioned Dispute Resolution Regimes Chapter 5: Privatizing Preferences, Influences and Justifications Chapter 6: Five Concerns About Privatization Chapter 7: Challenges for the Future of Reform Bibliography Acknowledgements Index About the Author

Civil Justice, Privatization, and Democracy

The story of cross-border collective redress in the EU is a story of confusion and missed opportunities: on the one hand, collective redress mechanisms are heterogeneous and often lack efficiency. On the other hand, studies show that important obstacles refrain cross-border litigation, such as the costs of proceedings and language differences. Although the European institutions have attempted to regulate collective redress, the persistent lack of political consensus has delayed the enactment of a binding legislative act. 
In light of the above, the present research project offers a theoretical framework for the analysis of cross-border collective redress actions in the EU. Its goal is to offer an appropriate forum, which facilitates the start of those actions. 
This thesis is divided into two parts: the first one describes and analyses the structural and procedural aspects of collective redress mechanisms adopted by EU Member States. The second part then deals with jurisdictional questions generated by cross-border collective redress actions. The last Chapter of this work suggests the creation of a specific forum for collective redress through the reform of the European private international law rules on jurisdiction.

Cross-border collective redress in the European Union and private international law rules on jurisdiction

a draft t of this pa per. It is the policy of the armed forces of the United States to exclude persons who are homosexual or exhibit homosexual tendencies from their ranks (Menninger, 194B: West and Glass, 1965). The zealousness with which the military seeks out and prosecutes homosexuals is based upon the magnitude of their perceived threat to good order. No distinction is made between a confirmed homosexual and a person who engages in a single act (under almost any condition in addition, a person who is defined as having strong tendencies toward homosexuality is also liable for dismissal. This latter criterion is often widely interpreted to include those who associate with homosexuals and those who have ever engaged in a homosexual act (whether in the military or not). What threat does the homosexual pose to military organization? The main threat is perceived to be in connection with discipline. Witness the following statement from the Army (United States Senate, 1966: 921 ):

The Military: Its Processing of Accused Homosexuals.

The Fourth Edition and its three paperback break-outs offer detailed information about the current use of ADR techniques in a variety of settings. In its treatment, for example, of the problem of arbitration agreements in employment contracts and other contracts of adhesion, or recent controversies over mediator ethics, mediator credentialing, and required participation in court-ordered mediation, it contains abundant and timely discussion found in no other book on the market. The Teacher's Manual contains a large number of detailed exercises for classroom use.

Processes of Dispute Resolution: The Role of Lawyers

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Court-Mandated Alternative Dispute Resolution: What Form of Participation Should Be Required

This article reviews the origins and development of multidistrict litigation before proceeding to examine its ability to take the place of class actions for the resolution of complex litigation. After noting that class actions are increasingly unavailable, particularly in pharmaceutical products liability cases, the article explores the management of the In re Vioxx Products Liability Litigation MDL. The article concludes that the MDL model can allow for the efficient resolution of complex litigation where a class action is not available, but creative management by the MDL transferee court is crucial. Highlighted are the use bellwether trials and the global settlement across jurisdictional lines, crafted by counsel in both federal and state courts and blessed and overseen in its execution by the MDL court. Professional ethics issues regarding requiring opting-in plaintiffs' attorneys to urge their clients to participate in the global settlement and, if not, to withdraw, are discussed. The growing use of multidistrict transfers of discreet litigation to a single court in various states is examined. Finally, the article calls for Congress to enhance the powers of MDL courts and to learn from the experience of the states and district courts that have experimented, often on an ad hoc basis, with the MDL model.

The MDL Model for Resolving Complex Litigation if a Class Action is Not Possible

* Professor of Law, Indiana University School of Law, Bloomington, Indiana. A.B. 1959, Georgetown University; M.A. 1962, 1967, University of Texas; J.D. 1962, Harvard University. 1. For example, there were 1.7 million American courts-martial during World War II with procedures which lacked such basic due process rights as legally-trained counsel and judges, freedom from command influence, and appeal to a judicial tribunal. Sherman, The Civilianization of Military Law, 22 MAINE L. REV. 3, 3-28 (1970). 'When the war ended there was such a public outcry that eighty-five percent of the sentences of the 27,500 servicemen still imprisoned were remitted or reduced. Farmer & Wels, Command Control-Or Military Justice?, 24 N.Y.U. L.Q. 263, 265 (1949). 2. For an account of Nazi court-martial abuses, see R. GRUMBERGER, THE TWELVEYEAR REICH: A SOCIAL HISTORY OF NAZI GERMANY, 1933-1945, at 161 (1971). 3. See INTERNATIONAL SOCIETY OF MILITARY LAW AND THE LAWS OF WAR, THE SAFEGUARD OF INDIVIDUAL RIGHTS IN THE APPLICATION OF MILITARY LAW AND DISCIPLINARY REGULATIONS (LES GARANTIES DES DROITS INDIVIDUELS DANS LA REPRESSION DISCIPLINAIRE ET PENALE MILITAIRE) 10, 46 (1966) [hereinafter cited as INTERNATIONAL SOCIETY OF MILITARY LAW, THE SAFEGUARD OF INDIVIDUAL RIGHTS]. 4. In addition to the nations discussed in this article, France, Belgium, the Netherlands, Luxembourg, Switzerland, Italy, Norway, and Canada all adopted reforms which resulted in fairer courts-martial with expanded civilian court jurisdiction and review powers. INTERNATIONAL SOCIETY OF MILITARY LAW, THE SAFEGUARD OF INDIVIDUAL RIGHTS, supra note 3, at 5-158. 5. 10 U.S.C. ?? 801-940 (1970). The UCMJ was amended by the Military Justice Act of 1968, Pub. L. No. 90-632 (Oct. 24, 1968). 6. There are three levels of court-martial: general, special, and summary. A general court-martial may only be convened by high-level commanders. Art. 22, Uniform Code of Military Justice [hereinafter cited as UCMJ], 10 U.S.C. ? 822. It may prescribe'any punishment allowed for the offense by the Table of Maximum Punishments promulgated by the President and contained in the MANUAL FOR COURTS-MARTIAL UNITED STATES (rev. ed. 1969) [hereinafter cited as MCM 1969]. Art. 18, UCMJ. A special court-martial may be convened by intermediate-level commanders, art. 23, UCMJ, and its maximum sentence is six months' confinement at hard labor, six months' forfeiture of 2/3 pay, demotion, and a bad conduct discharge. Art. 19, UCMJ. A summary court-martial may be convened by lower-level commanders, art. 24, UCMJ, and its maximum punishment

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Military Justice Without Military Control

more than something that would be desired when an enlisted man is facing trial before a court martial. 197 In 1964 the Court of Military Appeals in United States v. Crawford,108 approved the practice of selecting only senior noncommissioned officers as court members, and rejected the argument that statutory intent and constitutional standards were thereby frustrated. The court did add that the convening authority may not deliberately exclude any group of qualified jurors on \"irrelevant, irrational, or prohibited grounds.\" 100 Thus, under the UCMJ the right to a court composed of at least one-third enlisted men still remains in practice only a right to a court composed of one-third noncommissioned officers selected by the commander, and there are virtually no limitations on the convening authority's method of selection of both enlisted men and officers for court-martial. 5. Judicial Functions-The UCMJ provided that every general court-martial would have a law officer appointed by the convening authority (usually from the office of his staff judge advocate) who would not be a member of the court200 (law officers would not be provided in special courts where the president, who was not required to be a lawyer, would carry out those functions). The law officer would have to be a member of the bar or highest court of a state and certified as legally qualified by the Judge Advocate General. He would instruct the court as to the elements of the offense, the presumption of innocence, and the burden of proof, and would rule on interlocutory questions of law. However, the members of the court would continue to determine, by secret vote, challenges for cause against a member, and if any member objected to the law officer's rulings on a motion for finding of not guilty or on a question of accused's sanity, the court would make the determination. The senior officer, called the president, would continue to preside at the trial and carry out many administrative and judicial functions. For example, he would set the time and place of trial and uniform to be worn, conduct the trial and preserve order, administer oaths to counsel, recess or adjourn the court,20' preside over closed sessions, speak for the court in announcing findings and sentence and in conferring with the law officer. Likewise, the prosecutor, called the trial counsel, would continue to perform administrative duties, such as notifying court members and personnel as to the date, time, and place of trial, preparing the court room for trial, insuring that members and personnel were properly cared for, opening the trial and administering certain oaths. Reformers objected that the law officer, although he would perform 197 94 CONG. REC. 161 (1947) (remarks of Congressman Kilday). 198 15 U.S.C.M.A. 31, 35 C.M.R. 3 (1964). 199 15 U.S.C.M.A. at 40, 35 C.M.R. at 12 (1964). 200 10 U.S.C. § 826 (1964) (art. 26 of the UCMJ). 201 MANUAL fs 40 (1951).

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Edward F. Sherman

Papers

Processes of Dispute Resolution: The Role of Lawyers

Court-Mandated Alternative Dispute Resolution: What Form of Participation Should Be Required

The MDL Model for Resolving Complex Litigation if a Class Action is Not Possible

Military Justice Without Military Control

The Civilianization of Military Law