AMY SCHMITZ, University of Colorado Law School
Email: amy.schmitz@colorado.edu

The Federal Arbitration Act mandates strict and uniform enforcement of standardized pre-dispute arbitration provisions. This may not be proper, however, in light of the importance of context with respect to these provisions. This Article therefore seeks to remind courts of the importance of exchange context by proposing a "contracting culture" continuum for enforcing these arbitration provisions that acknowledges the impacts of these provisions in a particular communal context. "Contracting culture" encompasses economic and non-economic relational factors that impact dispute resolution agreements, but go beyond common conceptions of "culture" focused on ethnicity, nationality, or religion. It also explores beyond the primary domestic versus international factors and spans contracting cultures ranging from "intra communal" to "extra communal" in order to highlight how parties' relations, understandings, and values may have the greatest impact on the fairness of form arbitration provisions.

MARGO SCHLANGER, Washington University School of Law in St. Louis
Email: mschlanger@wulaw.wustl.edu

The theory that the prospect of liability for damages deters risky behavior has been developed in countless articles and books. The literature is far sparser, however, on how deterrence is operationalized. And prior work slights an equally important effect of damage actions, to incentivize claims management in addition to harm-reduction responses that are cost - rather than liability-minimizing. This article works in the intersection of these two understudied areas, focusing on claims management steps taken by frequently sued organizations, and opening a window into the black box of deterrence to see how those steps may end up serving harm-reduction purposes as well. To summarize, I observe that damage actions regulate risky enterprise by inducing organizations to develop claims management capabilities - that is, the capacity to process any resulting disputes. I then argue that these claims management practices and personnel are sometimes used, secondarily but importantly, to improve safety, reduce risk, and increase compliance with external legal requirements. Organizations' internal claims management operations can, though they need not, facilitate care-taking in four important ways: (a) promoting the gathering and analysis of claims information; (b) requiring the hiring of specialized personnel with a mission to reduce claim payouts; (c) encouraging bureaucratized procedures that may be harm-reducing, and (d) increasing the salience of claims to various actors within the organization. I discuss the theory underlying these four points, drawing on organizational economics and sociology, as well as on psychology and behavioral law and economics. Then I discuss these four channels of influence in particular factual settings which serve as case studies, looking at a single large retailer, and then more generally at hospitals and hospital doctors, and jails and prisons. Because organizational theory tells us that this kind of transformation or repurposing is quite ordinary, the preliminary evidence I canvass suggests that claims management should be included in any study of how damage action deterrence is operationalized within large risk-creating organizations.

This article thus makes two chief scholarly contributions. It proposes and theorizes concrete operational paths by which damage actions may elicit organizational compliance with external norms. And it describes in-house claims management, a heretofore underobserved arena in which law influences organizational activity. In the conclusion, I propose that who performs claims management functions may matter, as well, and suggest that in future research, claims management should be considered along with liability and loss prevention as the trio of liability-related operational areas in which firms must implement a "make-or-buy" decision.

JENNIFER K. ROBBENNOLT, University of Illinois College of Law
Email: jrobbenn@law.uiuc.edu

Empirical researchers have begun to explore the influence of apologies on litigant decision making. This research has found that the effects of apologies on decision making are complex, but that apologies generally influence claimants' perceptions, judgments, and decisions in ways that are likely to make settlement more likely - for example, altering perceptions of the dispute and the disputants, decreasing negative emotion, improving expectations about the future conduct and relationship of the parties, changing negotiation aspirations and fairness judgments, and increasing willingness to accept an offer of settlement.

Legal negotiation, however, is often characterized by the involvement of attorneys in the negotiation process. There are reasons to anticipate that attorneys may respond differently to apologies than do their clients. Attorneys as agents occupy qualitatively different roles in the process than do their clients and may have an orientation toward analytical thinking and legal rules that influences their understanding of the implications of apologies. This paper empirically explores how attorneys respond to apologies offered in litigation as they advise claimants about settlement, and compares the reactions of attorneys to those of claimants. While attorneys understand the information conveyed by apologies in ways that are strikingly similar to claimants, attorneys' judgments about settlement when apologies are offered diverge from those of claimants.

KATHERINE R. KRUSE, William S. Boyd School of Law, UNLV
Email: kate.kruse@unlv.edu

This Article argues that the construction of cardboard clients in legal ethics has disserved legal ethics by obscuring what is arguably a more central problem of legal professionalism: the problem of legal objectification. The problem of legal objectification is the tendency of lawyers to "issue-spot" their clients as they would the facts on a blue-book exam, overemphasizing the clients' legal interests and minimizing or ignoring the other cares, commitments, relationships, reputations and values that constitute the objectives clients bring to legal representation. This Article proposes an alternative ideal of legal professionalism for "three-dimensional clients" based on helping clients articulate and actualize their values through the law. It argues that a client value-based model of representation survives the critiques of early legal ethicists and provides an antidote against both the self-seeking behavior that legal objectification promotes and the danger of moral overreaching associated with the lawyer-statesman model.

DAVID ALLEN LARSON, Hamline University - School of Law
Email: dlarson@hamline.edu

The ethical standards governing conflicts of interest disclosure requirements for arbitrators and mediators are numerous and varied. In spite of the considerable attention that conflict of interest questions attract, both the extent to which an arbitrator must disclose past, present, and potential conflicts of interest and the consequences of a failure to make an appropriate disclosure remain unclear. This article examines disclosure requirements themselves, as well as the sanctions and penalties that may result from a failure to disclose information concerning a neutral's impartiality. Particular attention is paid to what generally is regarded as the most extreme consequence of failure; that being, vacatur.

Much of the confusion regarding disclosure requirements results from the fact that it is not always clear which conflict of interest and disclosure standard is controlling. Relevant standards include arbitral associations' codes of conduct, local codes of ethics, statutes, rules of professional conduct, and judicial decisions. The existing myriad of relevant guidance, regulations, and judicial decisions concerning conflicts of interest and required disclosures can lead arbitrators to make choices that conceivably result not only in sanctions but the nuclear option of the arbitral world, vacatur. Arbitral institutions, such as the American Arbitration Association and the National Arbitration Forum, have not been sufficiently careful to ensure that their codes, standards, and bills of rights do not articulate inconsistent standards as to what conflicts of interest must be disclosed and the consequences of both disclosure (possible removal) and failure to disclose (sanctions and vacatur).

A cynic might assert that in an apparent effort to assure potential clients that their arbitration services are as credible, ethical, and trustworthy as any other dispute resolution process, arbitral institutions have aggressively incorporated every available, recognized external ethics code or codes of conduct (such as judicial codes and local ethics codes) into the arbitral association's own code. A more forgiving commentator might reply that the associations are incorporating external codes because those codes generally have been in existence for a significant period of time, have undergone intense scrutiny, and can help achieve the arbitral association's goal of providing reliable and ethical services. Adopting and incorporating external codes that may have been drafted to regulate services other than arbitration, however, can create obligations inconsistent with the arbitral association's own codes and incompatible with the goals and realities of arbitration.

A call for the courts to adopt a more uniform standard for determining when a failure to disclose a conflict of interest will result in evident partiality warranting vacatur may not be answered any time soon. But there is no reason why arbitral institutions cannot review and, if necessary, amend their own codes and recommendations to ensure that their expectations concerning conflict of interest and disclosures are defined as clearly as possible.