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    UDRP Basically OK, Study Suggests | Log in/Create an Account | Top | 28 comments | Search Discussion
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    Re: UDRP Basically OK, Study Suggests
    by michael (froomkin@lawUNSPAM.tm) on Monday February 18 2002, @08:39AM (#4941)
    User #4 Info | http://www.discourse.net/
    And how does one do that if one hasn't read the briefs? I certainly can't give you examples from arbitration cases I participated in, if there are any, since that would violate my duty of confidentiality to the parties.

    I can say, however, from many years experience as a lawyer and law professor, that the hiding-the-ball tactic to which I refer is a common behavior of judges (one need only compare appellate decisions with lower court decisions for examples of this). It is unlikely that arbitrators are more noble than judges.

    The burden of proof is in any case on social scientists who make claims about correctness of judgments. I think that if you ask any common lawyer he or she will tell you that one could not make a reasonable judgment as to correctness of outcome in contentious matters of this type without a look at the parties' claims.

    The three panelist issue cuts both ways; panels make compromises to get a unanimous decision. Sometimes the compromise is silence on a disputed question, which is seen as less bad than putting something offensive in the judgement. The decision instead goes off on some other issue that all the members can agree on. Since the decisions have no precedential value, this is in no way a bad thing, but again it makes outside review without the briefs a dubious proposition indeed.

    [ Reply to This | Parent ]
    An example of conclusory reasoning
    by michael (froomkin@lawUNSPAM.tm) on Monday February 18 2002, @10:08AM (#4948)
    User #4 Info | http://www.discourse.net/
    Out2.com, Inc. v Rustom Corporation, NAF FA0010000095896

    Here is the entire discussion of the merits of the respondent's case: "Moreover, even if Respondent’s late-filed Response were considered, the Panel finds that Respondent failed to show in that Response that Complainant would not be entitled to the requested relief."

    And the discussion of the reasons for denying a late filing are pretty conclusory too -- it's hard to figure out what the respondent's argument really was. Here's the discussion of that issue in full:

    Although Respondent contacted the Forum, after the deadline for filing a response, and asserted lack of notice, Complainant replied with documents showing such notice. Although Complainant attempted to file an Amended Complaint, the Panel finds that the parties are limited to the record that was timely before the Panel. The record permits inferences that appropriate effort was made to give notice to Respondent at the addresses provided by Respondent. Respondent is required to provide correct addresses to the Registrar and if Respondent failed to do so, that does not place a higher burden on those dealing with Respondent to find it where it really is rather than where Respondent notified those dealing with it that it was located
    I defy anyone reading that to make an informed judgment as to whether the arbitrator was right or not as regards the above. There is more in the decision regarding what Complainant alleged on the merits, but even then it mostly refers to "evidence on the record" without telling you what it might be.
    [ Reply to This | Parent ]


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