American Rule Research Articles

Attorneys' Fees Agonistes: The Implications of Inconsistency in the Awarding of Fees and Costs in International Arbitrations

The awarding of arbitration costs and attorneys’ fees in international arbitrations is often arbitrary and unpredictable. In one recent investment arbitration where the tribunal deciding a case under the auspices of the international Centre for the Settlement of Investment Disputes (ICSID) had broad discretion to award costs and fees, the tribunal allocated arbitration costs evenly amongst the claimant and respondent and required each party to bear its own fees and expenses, even though the claimant prevailed. In another case where the claimant was successful on its substantive claim, the ICSID tribunal ordered the respondent to pay the claimant US$6 million for legal fees, but required the parties to bear the costs of the arbitration equally. And in still another recent investment arbitration the unsuccessful respondent was ordered to pay the costs of the arbitration, but each party was responsible for its own legal fees. These results are not unique to investment arbitrations; they can also be found in international commercial arbitrations. The lack of uniformity in the awarding of costs and fees poses two major problems. First, arbitrary awards undermine the legitimacy of the dispute resolution system. Second, the lack of predictability may hinder parties from being able to settle the dispute and could rob arbitration of its efficiency. These problems are exacerbated in the international context because the costs and fees in transnational disputes can run into the millions of dollars. Indeed, in one recent celebrated arbitration, the costs and fees totaled over US$21 million. This article examines the awarding of costs and fees in international commercial arbitrations and transnational investment disputes. My study finds that awards of costs and fees are arbitrary and unpredictable under both systems. To remedy these problems, I propose two different approaches: one for ICSID tribunals and another for international commercial arbitrations. In the case of ICSID arbitrations, the parties should share equally the costs of the arbitration and bear their own legal expenses. In essence, I propose that ICSID adopt what has become known as the American Rule with respect to the awarding of costs and fees. This approach is needed to bring predictability to the field, provide greater administrative efficiency, and reduce the overall costs. In the case of international commercial arbitrations, I argue that parties should be free to select the method for resolving claims for costs and fees, including authorizing the tribunal to resolve such claims pursuant to the principle of “costs follow the event” or the “loser pays” rule. In this context, the adoption of the American Rule would not achieve the same administrative and economic benefits, and the principle of party autonomy calls for this different approach.

Cost and Fee Allocation in Civil Procedure

Court costs in American civil procedure are allocated to the loser (“loser pays”) as elsewhere in the civilized world. As Theodor Sedgwick, America's first expert on damages opined, it is matter of inherent justice that the party found in the wrong should indemnify the party in the right for the expenses of litigation. Yet attorneys' fees are not allocated this way in the United States: they are allowed to fall on the party that incurs them (the “American rule,” better, the American practice). According to Albert Ehrenzweig, Austrian judge, emigre and then prominent American law professor, the American practice is “a festering cancer in the body of our law.” This Article surveys American cost and fee allocation practices. The author hopes that the Article will serve as a prolegomenon from an American perspective for moreencompassing comparative studies, including eventually of empirical studies. Preparing this Article has led the author to believe that the impact of fee allocation systems has been underappreciated in evaluation of how well nations in fact deliver civil justice.

Mount Rainier and Indian Economies of Place, 1850–1925

T JL he mountain called Rainier is the tallest peak in Washington's northern Cascade range, forty miles southeast from the city of Tacoma, and at the intersection of Nisqually, Yakama, Puyallup, Muckleshoot, and Upper Cowlitz (Taidnapam) ancestral lands. On a clear day the mountain can be seen from a hundred miles in every direction rising dramatically above nearby hills and prairies. Endowed with significance beyond its physical fact, the mountain has been and continues to be an element crucial to northwesterners* sense of place. The mountain's meaning goes beyond aesthetics and sentiment, however. Indians and whites negotiated the meaning of Mount Rainier in both material and non-material ways, creating an economy of place in the process. The mountain itself has served as a marketplace in which the rules of exchange were worked out and place gained value; that American economic rules came to dominate should not obscure the negotiations and alternative economic possibilities that Rainier represents. Most published narratives about Mount Rainier detail one of three major facets of human engagement with the iconic place: exploration and early mountaineering (1850-1890), the creation of Mount Rainier National Park (1899), and the lengthy debate over the official name (1890-1925). This article will revisit these three familiar episodes but tie them together as related moments in an evolving economic negotiation of Rainier as a western place. Throughout the period from 1850-1925, non-Indians sought out Native peoples for information about the mountain and Indians responded by situating the mountain within their social world. Native people did not think of economic life as distinct from other aspects of life, and their responses to white settlers' inquiries reveal largely unrecognized (to their white audiences) facets of Native political economies. White people at the time, and later historians, interpreted Indians'

Trial and settlement negotiations between asymmetrically skilled parties

Parties engaged in a litigation generally enter the discovery process with different informations regarding their case and/or an unequal endowment in terms of skill and ability to predict the outcome at trial. This results in different legal costs to assess the plaintiff’s win rate. The paper analyses pretrial negotiations and revisits the selection hypothesis in the case where these legal expenditures are private information. Our general result is that pretrial negotiations select cases with the smallest legal expenditures as those going to trial, while cases with largest costs prefer to settle. Under the one-sided asymmetric information assumption, we find in contrast to the usual finding of the literature, that the American rule yields more trials and higher aggregate legal expenditures than the French and British rules. The two-sided case leads to a higher rate of trials, but in contrast provides less clear-cut predictions regarding the influence of fee-shifting.

Masterless Mistresses: The New Orleans Ursulines and the Development of a New World Society, 1727–1834 , and: Divided Loyalties in a Doomed Empire: The French in the West from New France to the Lewis and Clark Expedition , and: In this Remote Country: French Colonial Culture in the Anglo–American Imagination, 1780–1860 (review)

Masterless Mistresses: The New Orleans Ursulines and the Development of a New World Society, 1727-1834. By Emily Clark. (Chapel Hill: University of North Carolina Press, 2007. Pp. 304. Cloth, $59.95.)Divided Loyalties in a Doomed Empire: The in the Westfront New France to the Lewis and Clark Expedition. By Daniel Royot. (Newark, DE: University of Delaware Press, 2007. Pp. 282. Cloth, $57.50.)In This Remote Country: Colonial Culture in the AngloAmerican Imagination, 1780-1860. By Edward Watts. (Chapel Hill: University of North Carolina Press, 2006. Pp. 288. Cloth, $59.95.)Reviewed by Darcy R. FryerWhen Thomas Jefferson negotiated to purchase Louisiana from Napoleonic France, he had two goals in mind: to sustain an economy grounded in small, owner-operated farms, and to guarantee American access to the Mississippi River and the port of New Orleans in perpetuity. Jefferson knew the land he was purchasing for the United States was not quite empty, and he admonished Lewis and Clark to document the indigenous presence in the regions they visited. But Jefferson had little to say about the enduring presence of Frenchmen and women in the same landscape. Like most Americans who had lived through the Seven Years' War, he probably envisioned the presence in North America primarily in the past tense. In fact, as the works of Daniel Royot, Emily Clark, and Edward Watts attest, attitudes, institutions, and Frenchdescended individuals were far from gone in the decades after France ceased to be a political power on the North American mainland.Daniel Royot's Divided Loyalties in a Doomed Empire is a straightforward account of life in Canada and the Illinois Country in the seventeenth and eighteenth centuries. Royot vividly depicts the day-today life of coureurs de bois and their Metis offspring, arguing that the coureurs de bois, often deeply alienated from the colonial authorities and from their land of origin, existed somehow out of (63), while the Metis developed a culture characterized by resignation, stoicism, and fatalism (129). Royot's treatment of Native Americans, who are necessarily prominent figures in his account, seems oddly flat; his descriptions of torture and cannibalism, for example, sensationalize Indian violence without addressing why Native Americans engaged in these practices. The strength of the book lies largely in the detailed narrative. Here is the place to turn if one wants to know where an obscure Indian trader was living in 1 739 or why the Ottawa nation moved westward. In the later chapters, Royot returns again and again to questions such as How were the inhabitants of Upper Louisiana in 1803? (152) and How was Sacajawea? (175). His slightly hesitant answer to both questions is, not very. By the time the British conquered Canada, and certainly by the time that Thomas Jefferson dispatched the Lewis and Clark expedition westward, the French inhabitants of the North American interior spoke vernacular versions of that were over a century out of date and maintained only tenuous connections with the old country. The culture of North America, Royot suggests, became something other than wholly long before it came into contact with Anglo-American lifeways.In Masterless Mistresses, Emily Clark comes to a contrasting conclusion. Clark explores the development of the Ursuline Order of nuns, who arrived in New Orleans in 1727 and labored to educate Louisiana women of all races and social classes through the vicissitudes of French, Spanish, and American rule. As teaching nuns, the Ursulines challenged the medieval Catholic notion that religious women must be cloistered; as mistresses of real estate and slaves, they challenged the colonial equation of proprietorship with masculinity. Clark argues that and, to a lesser extent, Spanish authorities tolerated the Ursulines' autonomy because they understood its basis in a Catholic religious order; AngloProtestant authorities, on the other hand, struggled to reconcile the Ursulines' exercise of power with their belief that women exercised power most appropriately through republican wifehood and motherhood (4). …

Pore space ownership issues for CO2 sequestration in the US

Previous assertions that the ownership of subsurface pore space in states in the US under common law are divided into a majority following the American Rule (surface rights owner owns pore space) and a minority following the English Rule (mineral rights owner owns the pore space) are shown to be inconsistent with case law precedents traced back to 1861. The mineral estate is not likely to “own” the pore space or to have the right to use the pore space for purposes other than extracting minerals. The exception will be where the original fee simple owner sells the surface rights but reserves the subsurface mineral rights. In all other circumstances it is likely that courts will find that the surface owner also owns the pore space under common law.

Reporter's Privilege and Incentives to Leak

Journalists sued for defamation may refuse to reveal their anonymous sources. To escape liability under the traditional English rule, they then need to show proof that the news is correct. By contrast, many US states have switched the burden of proof such that plaintiffs must first present evidence that the news is false. Focusing on the incentives of sources to leak, we find that the American rule reduces the frequency of type I errors (true stories are not learned by the society) at the expense of a higher frequency of type II errors (the society believes wrong stories). The American rule is superior when courts are likely to find the truth without knowing the identity of sources, and when firms can severely punish even honest sources. Furthermore, when courts rule that sources must be revealed, they should ensure a higher compliance rate of journalists under the American rule.

The Cost of Property Rights: Establishing Institutions on the Philippine Frontier under American Rule, 1898-1918

We examine three reforms to property rights introduced by the United States in the Philippines in the early 20th century: the redistribution of large estates to their tenants, the creation of a system of secure land titles, and a homestead program to encourage cultivation of public lands. During the first phase of American occupation (1898-1918), we find that the implementation of these reforms was very slow. As a consequence, tenure insecurity increased over this period, and the distribution of farm sizes remained extremely unequal. We identify two primary causes for the slow progress of reform. The first was the high cost of implementing these programs, together with political constraints which prevented the government from subsidizing land reforms to a greater degree. The second was the reluctance of the government to evict delinquent or informal cultivators, especially on public lands, which reduced the costs of tenure insecurity.

<i>Living through the Generations: Continuity and Change in Navajo Women's Lives</i>, and: <i>Weaving Women's Lives: Three Generations in a Navajo Family</i> (review)

Reviewed by: Living through the Generations: Continuity and Change in Navajo Women's Lives, and: Weaving Women's Lives: Three Generations in a Navajo Family Jennifer Denetdale Joanne McCloskey . Living through the Generations: Continuity and Change in Navajo Women's Lives. Tucson: University of Arizona Press, 2007. 240 pp. Paper, $24.95. Louise Lamphere . Weaving Women's Lives: Three Generations in a Navajo Family. Albuquerque: University of New Mexico Press, 2007. 344 pp. Paper, $24.95. In 2007, almost simultaneously, yet two more ethnographies of Navajo women were published. Each study is situated in two different Navajo communities, covers roughly the same period, from the early twentieth century to the present, [End Page 288] and represents Navajo women's life experiences across three generations. Weaving Women's Lives: Three Generations in a Navajo Family by anthropologist Louise Lamphere and Living through the Generations: Continuity and Change in Navajo Women's Lives by anthropologist Joanne McCloskey, who was a student of Lamphere, reaffirm the dictum that in the face of ongoing colonialism under American rule, Navajo women have been the bearers of tradition and the vestibules of cultural knowledge. Navajo women have drawn upon tradition as a powerful source of authority to meet adversity, beginning in the early reservation period and into the present with the impositions of modernity. Both studies depict Navajo women's lives in similar ways, first by creating a framework for "tradition," based on the oldest living generation of women, now grandmothers, and then gauging the transformations in Navajo culture as reflected in Navajo women's lives across three generations—grandmothers, mothers, and daughters. While Lamphere traces the continuity of tradition through one Navajo family, McCloskey casts a wider net and interviews groups of women in each generation to map the continuity of tradition. The oldest living generation of Navajo women was born in the early twentieth century, and many of them lived the pastoral life that is most commonly associated with Navajo culture. As children, the grandmothers stayed home and cared for the livestock. Their care of the sheep was crucial to instilling traditional values such as industry, love, reciprocity, and the good of the community over the individual. Upon reaching womanhood they underwent the Kinaaldá, the ceremony that celebrated their power to bring forth the next generation. Generally, most entered arranged marriages, relationships that are characterized traditionally as partnerships of planning for the future. Many of the women contributed significantly to the economic well-being of their families through maintaining thriving livestock and with weaving textiles for the market. The next generation of women, who were born in the late 1930s, 1940s, and 1950s, were met with a changing world, principally one transformed by forced livestock reduction and its accompaniment, the entrance of wage work. From 1868 to the 1930s Navajos had amassed an impressive herd of livestock, over 1.2 million by the 1880s. In the face of destroyed grazing lands, limitations on regions in which they had access to pastures, and competition with non-Indian ranchers for grazing lands along the boundaries of the Navajo homeland, Navajos were forced to reduce their livestock. By the end of the 1940s, with the decimation of their herds, Navajos could no longer depend upon livestock as a viable means of making a living. While men moved between their homeland and regions of the United States in search of jobs, women were left to care for their families. They also sought alternative means for supporting their families. Weaving, which had once been a viable source of income prior to 1868, fell under the control of traders, who turned the textiles into rugs for the tourist trade. Other women sold [End Page 289] food and other goods in the informal reservation economy, while still others left their communities in search of wage work. This generation of women was the first to attend American schools. As McCloskey notes, children's labor had been crucial to the maintenance of the herds, and with reduction, children were now seen as free to attend schools. Most likely, the extreme poverty that families faced was a factor for enrolling children in boarding schools, for then children would have shelter, food, and clothing. As...

Children born to Hansen's disease patients in Amami-Oshima,Kagoshima, Japan

In the Japanese leprosaria, it was very difficult or almost impossible for leprosy patients to give birth to their children. There were various reasons for this situation. Leprosy in the women mostly worsened in pregnancy and some of the children developed leprosy. Because of the chronic nature of the disease, marriage was encouraged in Japanese leprosaria, so that vasectomy was usually enforced in men who were wed, while artificial abortion was enforced in pregnant women. The only one exception was the situation of the Amami Wako-en Leprosarium. The Wako-en Leprosarium was started in 1943, and between 1946 and 1953, it was under American rule. Later it was transferred to Japanese rule. Religions such as Buddhism, Christianity and other religions greatly helped with leprosy patients, and in the Wakoen, it was Catholicism which prevailed. Catholic believer Joan Matsubara (later the secretary of Wako-en), Father Patrick Finn, Kaoru Ohira (director) outlined how children born to Hansen's disease patients would be grown up and made the internal rules of the couples' dormitory, while this was impossible in other leprosaria. Between 1953 and 1954, children were brought up by Matsubara's family or nurses. And since November 1954, children were brought up at nurseries (firstly named "Children's House" and later at "Naze Engel House" and children between 2 and 3 years went to "White Lily House". The children could meet their parents at times and now they are full-fledged grown-up citizens.

Product Review: The American Ruling Class

Product Review: The American Ruling Class

The American Rule of Law and the Collapse of the American Economy

The American Rule of Law and the Collapse of the American Economy

Manuel Quezon, Patron of the American-Filipino Community

American rule in the Philippines (1898-1946) is in many respects an exception in the history of modern colonization. Not long after the signing of the Treaty of Paris (December 1898), which established the transfer of sovereignty over the Philippines from Spain to the United States, president William McKinley declared that American presence in the archipelago would be temporary. In keeping with this, the United States installed a democratic framework in its territories and laid the foundation...

Orphans Adopted Eighty-Nine Years after Conception, or, Cataloging Updating Loose-Leaf Publications

ABSTRACT Until the 2002 revision to AACR2 was adopted, cataloging rules for updating loose-leaf publications were orphans—they were excluded from previous Anglo–American rule compilations. To offer guidance to catalogers, over the years the Library of Congress issued a series of rule interpretations and supplemental resources outlining best practices and rules for cataloging loose-leafs. This article chronicles the publication, or lack of practical publication, of cataloging rules for updating loose-leafs and the impact on libraries. Also included is a review of the various organizations instrumental in garnering support for the creation and acceptance of a new paradigm and standards and concepts that would ensure the inclusion of cataloging rules for updating resources. Finally, the impacts on libraries and cooperative organizations resulting from the implementation of the new rules are examined.

Unchaste and Incredible: The Use of Gendered Conceptions of Honor in Impeachment

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Legal Costs as Damages in the Application of UN Sales Law

In the literature on the uniform UN sales law (CISG), the decisions in the first and second instances of the Zapata1 case triggered an extraordinarily lively discussion. Simply stated, the case concerned the delivery of painted cookie tins used for packaging Christmas cookies, for which the American buyer (i.e., place of business in the USA), citing flimsy pretexts, refused to pay. The Mexican seller (i.e., place of business in Mexico), sued and was awarded compensatory damages; as part of the damages, the trial court also awarded the plaintiff its attorneys’ fees. At the appellate level, where only the issue of attorneys’ fees was disputed, the appellate court rejected the claim for reimbursement of attorneys’ fees and reversed the trial court decision. [The seller’s] appeal to the U.S. Supreme Court by writ of certiorari was denied. The cases concerned the so-called “American rule,” according to which the parties each bear their own litigation expenses, and in particular their own attorneys’ fees, independent of the outcome of the case. This deviates from German legal understanding and has significant practical consequences. In particular, high attorneys’ fees could lead to the result that the compensatory damages awarded to the plaintiff in actuality fall far short of covering his losses, and for the victorious defendant winning a case can be a pyrrhic victory. Yet, the American rule is not without exceptions, and especially for abusive lawsuits brought on obviously groundless claims, American procedural law permits the losing party bringing such claims to be partially burdened with the cost.Also in cases of especially serious breach of contract, an award of punitive damages could make it possible for the victorious plaintiff to recover his litigation expenses and attorneys’ fees. Nevertheless, in the large majority of cases the American rule leads to the described results, which for German jurists appear at first glance surprising and unacceptable. Especially for foreign parties to a contract who come before an American court and win, the American rule can lead to unpleasant surprises.

Trial and Settlement Negotiations between Asymmetrically Skilled Parties

Parties engaged in a litigation generally enter the discovery process with different informations regarding their case and/or an unequal endowment in terms of skill and ability to produce evidence and predict the outcome of a trial. Hence, they have to bear different legal costs to assess the (equilibrium) plaintiff's win rate. The paper analyses pretrial negotiations and revisits the selection hypothesis in the case where these legal expenditures are private information. This assumption is consistent with empirical evidence (Osborne, 1999). Two alternative situations are investigated, depending on whether there exists a unilateral or a bilateral informational asymmetry.Our general result is that efficient pretrial negotiations select cases with the smallest legal expenditures as those going to trial, while cases with largest costs prefer to settle. Under the one-sided asymmetric information assumption, we find that the American rule yields more trials and higher aggregate legal expenditures than the French and British rules. The two-sided case leads to a higher rate of trials, but in contrast provides less clear-cut predictions regarding the influence of fee-shifting.

THE RACIAL VECTORS OF EMPIRE

AbstractThis paper examines the role of racial ideology in shaping U.S. colonial policy in the Philippines during the early years of American rule in the islands c. 1898–1905. The first section of the essay focuses on congressional debates between pro- and anti-imperialist lawmakers regarding the annexation and governance of the Philippines. The imperialist lobby advocated a paternalistic racial ideology to advance their case for American annexation, citing “the White man's burden” to civilize Filipinos as their rationale for colonizing the islands. The anti-imperialists, on the other hand, employed an ideology of aversive racism to oppose the incorporation of the Philippines, suggesting that annexation would unleash a flood of Filipino immigrants into the United States, thus creating a “race problem” for White citizens. Frequent unfavorable comparisons with Blacks, Chinese, and “Indians” were employed to produce racial knowledge about Filipinos who were unfamiliar to most Americans. This knowledge served as the basis for excluding Filipinos from American citizenship on racial grounds. The second section of the article traces the implementation of an institutionalized racial order in the Philippines, examining a series of population surveys conducted by colonial officials during the first years of American rule. These surveys employed American-style racial classifications that ranked and evaluated the various races and “tribes” that were identified in the islands. This project culminated in the first official census of the islands in 1905, which formally institutionalized racial categories as an organizing principle of Philippine society.

The Good Faith Acquisition of Stolen Art

Good faith purchasers of stolen goods fare differently in Western legal systems. American rules favor the owner, while the civil law world protects the good faith purchaser. Oddly, this striking difference is misunderstood or denied or both by American scholars. American lawyer-economists who have considered which is the better rule differ in their perceptions and conclusions, as do the positions taken by non-economists. A related difference exists in the application of statutes of limitation in good faith purchaser cases. Proposals that it would be fairer to split the loss seem bound to fail. A solution involving the Art Loss Register and the New York courts' use of the laches doctrine is more promising.

The United States and trade disputes in the World Trade Organization: Hegemony constrained or confirmed?

Abstract and Key Results * Does the World Trade Organization function to reinforce American dominance (or hegemony) of the world economy? We examine this question via an analysis of trade disputes involving the United States. * This allows us to assess whether the US does better than other countries in this judicialised forum: and in so doing enhance the competitive prospects of their firms. * The results are equivocal. The United States does best in the early phases of a dispute, where political power is important. It does less well as the process develops. Key Words World Trade Organization, US Hegemony, Trade Analysis 'One of the main functions of the WTO is to tie the American Gulliver down.' (de Jonquieres 2004, p. 19) Introduction The creation of the Dispute Settlement Body (DSB) of the World Trade Organization (WTO) was regarded by many observers as a key achievement of the Uruguay Round negotiations (Hart 2002, Jackson 1998). The achievement lay in the creation of a rules-based system for resolving trade disputes, where all parties had equal rights and obligations, in preference to the power-based system where the law of the jungle prevailed. In the years since its creation, the DSB has been vastly more active than its GATT predecessor. This has been hailed as proof that the WTO represents a rules-based approach to international trade disputes that helps the weak defend themselves against the strong (Gilpin 2001). Yet, the operation of the disputes process is not without its critics. The losing side in a dispute is required to bring its regulation into conformity with WTO provisions--or face sanctions. Developing states, often reliant on a small number of export products or services for their economic livelihood, are not in a position to appeal against WTO decisions. A more fundamental criticism, one central to this paper, is that the WTO's very rules are not neutral, but reflect hegemony: the dominance of American rules, norms and practices about international commerce. The paper proceeds as follows. First we discuss the concept of hegemony and its utility for understanding international economic relations. In the next section, we develop a methodology designed to gauge the extent to which the US exercises hegemony through the DSB. This is done by analysing US activity in the disputes process and contrasting this with the European Community's experience. (1) This comparison is made to provide a benchmark for assessing American success at the WTO; considering the US in isolation would make it impossible to determine whether it does better in the WTO than other actors. The EC has been selected as it is the second most active WTO member with respect to the DSB process and also the US' primary counterparty. The EC is also very similar in economic and demographic terms: one would expect these parties to have similar experiences with the disputes process. The final section develops some conclusions. Hegemony: Institutions and International Business Antonio Gramsci 'developed the concept of hegemony to describe a condition in which the supremacy of a social group is achieved not only by physical force but also through consensual submission of the very people who were dominated' (Litowitz 2000, p. 518). Hegemony rests on the normative triumph of a particular idea, but this victory is both created and buttressed by the construction of institutions dedicated to the propagation of these dominant values. Thus, power and resource asymmetries are important for understanding how hegemony develops. Institutionalist theory has long understood that the bundle of rules and procedures called institutions are also constituted by norms and values: many so deeply held there is no need to articulate them. This has an important implication for organizations interacting with an institution; 'the exercise of strategic choice may be pre-empted when organizations are unconscious of, blind to, or otherwise take for granted the institutional processes to which they adhere' (Oliver 1991, p. …