“Behind-the-Table” Conflicts in the Failed Negotiation for a Referendum for the Independence of Catalonia: A Student Note by Oriol Valentí i Vidal

By Oriol Valentí i Vidal*

Spain is facing its most profound constitutional crisis since democracy was restored in 1978. After years of escalating political conflict, the Catalan government announced it would organize an independence referendum on October 1, 2017, an outcome that the Spanish government vowed to block.

This article represents, to the best of the author’s knowledge, the first scholarly examination to date from a negotiation theory perspective of the events that hindered political dialogue between both governments regarding the organization of the secession vote. It applies Robert H. Mnookin’s insights on internal conflicts to identify the apparent paradox that characterized this conflict: while it was arguably in the best interest of most Catalans and Spaniards to know the nature and extent of the political relationship that Catalonia desired with Spain, their governments were nevertheless unable to negotiate the terms and conditions of a legal, mutually agreed upon referendum to achieve this result.

This article will argue that one possible explanation for this paradox lies in the “behind-the-table” conflicts on both sides. For Catalan secessionists, this conflict related to the role that unilateralism had to play, if any, in the negotiations with Spain to organize an official referendum for independence. For those against it, most notably the Spanish political parties, the pressing internal conflict concerned the scope of the negotiations that had to be conducted with the Catalan government. These internal “behind-the-table” conflicts blocked an “across-the-table” agreement, leading to a deadlock in negotiations.

This article hopes to contribute to the academic conversation around the barriers to progress in high-stake negotiations, and it suggests that the failure to negotiate an independence referendum for Catalonia reveals the limits of unilateral action in the context of a supranational region like the European Union, the dynamics in negotiations where there is a sharp power imbalance between the parties, the tensions between democratic legitimacy and the rule of law, and the risks of path dependency for negotiated agreements.

Read the full article here.

*Attorney; Lecturer in Law, Barcelona School of Management (Universitat Pompeu Fabra) as of February 2018. LL.M. ‘17, Harvard Law School; B.B.A. ‘13 and LL.B. ‘11, Universitat Pompeu Fabra; Diploma in Legal Studies ‘10, University of Oxford.

Power Imbalances in Mediation: A student note by Amrita Narine

By Amrita Narine*

In recent years, mediation has become increasingly popular and now represents a viable option for parties in a variety of scenarios. Despite its rising popularity, mediation has received mixed responses because of the potential to entrench preexisting power imbalances. This paper will explore the usefulness of mediation when dealing with an imbalanced power dynamic.

In part I, this paper will focus on defining power within mediation. Part II will explore the critiques of mediation in situations where there is an imbalanced power dynamic and specifically delve into gendered imbalances and employment imbalances. After exploring the critiques and responses to them, part III will focus on specific techniques that a mediator can use to help balance out the power dynamics at play and offer best practices for dealing with power imbalances.

Read the full paper here.

*Amrita Narine is a third year JD student at Harvard Law School. She currently serves as the Managing Editor for the Harvard Negotiation Law Review and previously served as Submissions Editor. She graduated summa cum laude from the Macaulay Honors Program at CUNY Baruch where she received a Bachelor of Arts in Sociology and Corporate Communications.

“Son be a Dentist:” Restorative Justice and the Dalhousie Dental School Scandal by Annalise Acorn

By Annalise Acorn*

The symposium on the theory and application of restorative justice held by the Harvard Negotiation Law Review in February prompted a renewed look at restorative justice not merely as a new method of achieving a familiar understanding of justice but as a new theory of justice itself. This was an important contribution because restorative justice is, in my view, most interesting and innovative in its aspiration to articulate not just a new theory of punishment, or compensation, not just a new way to address crime but a new theory of justice. Read more here.

*Annalise Acorn is a Visiting Fellow at Oxford University.

Negotiating the Non-Negotiable: National Security & Negotiation

by Joshua C. Fiveson*

It requires little reflection to recognize that the word “terror” has saturated popular and academic discourse. This newly prominent yet age-old form of warfare has redefined the modern legal landscape on a domestic and international level, while simultaneously striking fear in the hearts of millions. And despite the multiplicity of working definitions for what constitutes as terrorism, one thing remains constant: at its most fundamental level, terrorism involves Actors with Interests. Unfortunately, this relatively simple realization is lost to the strong positional interests and calcified dogmas of American national security policy. The United States’ current approach imprudently shifts the treatment of terrorism away from the political realm and restricts the resolution of these issues to reciprocal demonstrations of force. But terrorism is inexorably political, and political problems require political solutions. This article seeks to address the inherent inadequacy of this policy and in doing so, expose how foresight can often times be quite short sighted. Read more here.

*Joshua C. Fiveson is an officer in the U.S. Navy, a graduate of Harvard Law School, and a former Harvard Graduate Student Leadership Institute Fellow at the Harvard Kennedy School’s Center for Public Leadership. 

Stiffing the Arbitrators: The Problem of Nonpayment in Commercial Arbitration

By Neal M. Eiseman & Brian Farkas*

There is a hole in our arbitral system. Despite being among the most efficient and prevalent means of resolving commercial disputes, and one generally favored by courts,[1] arbitration is dangerously susceptible to the problem of nonpayment. Simply put, a respondent seeking to avoid liability may be able to “game” the system by refusing to pay its share of arbitration fees. All too frequently, this leaves the claimant without an effective remedy to hold the nonpaying respondent accountable. Read more here.

[1] See, e.g., AT&T Mobility LLC v. Concepcion, 563 U.S. 321, 329 (2011) (noting that arbitration is an “efficient, streamlined procedure tailored to the type of dispute”); see infra, Section IV, discussing the federal and state public policy clearly favoring arbitration.

*The authors are practicing attorneys at Goetz Fitzpatrick LLP.

Bargaining in the Shadow of the “Law?” — The Case of Same-Sex Divorce

By Jeremy Feigenbaum*

In November 2003, in a 4-3 decision, the Massachusetts Supreme Judicial Court held that Hillary and Julie Goodridge, a same-sex couple, were entitled to marry.1 In 2004, they were then among the first same-sex couples to marry in the United States.2 But in 2006, the two announced their separation, which ultimately ended in divorce.3 Commentators debated the meaning of their divorce: One LGBT advocate stated that this was proof “[o]ur marriages are not unlike everyone else’s marriages, which is that they are both precious and fragile,” while same-sex marriage opponents, alluding to their claim that same-sex relationships are less likely to last than heterosexual ones, declared that this “demonstrates again why we are so concerned for children in inherently unstable relationships.”4

For Hillary and Julie Goodridge, however, what surely mattered more than the statement their divorce made was their ability to divorce at all — and what it would mean for their daughter. An LGBT advocate noted, “[i]t is also good . . . they have the protections of wedlock as now they and their daughter will have all of the security and clear rules that married couples benefit from when they do divorce.”5

That sense of security is a recent phenomenon. In 1994, the New York Times highlighted a same-sex couple in Missouri and described the couple’s attempts to divorce as “loaded with ambiguities and unknowns, conducted in a court system that lawyers and clients say is hostile at worst and indifferent at best.”6 Yet while detailing these couples’ rights and struggles to divorce, articles like this one failed to offer meaningful insights into the substantive outcomes these couples were achieving in their divorces. The press did not write about how the Missouri couple decided who should keep the marital home or how Hillary and Julie handled custody.

In 1979, Professors Robert H. Mnookin and Lewis Kornhauser authored a seminal work on the relationship between divorce law and the actual divorce experience of American couples.7 Their central insight was that family and divorce laws do not impose outcomes “from above” on divorcing couples. Rather, the law creates the “framework” within which a divorcing couple will determine their post-divorce rights and responsibilities. While family law rules do not determine which spouse will keep the home or which deserves custody of the children, laws influence the parties’ expectations regarding what they will win if they fall back on their alternative of going to court instead of relying on negotiation. Those background rules — legal “entitlements” — affect how such parties should bargain with one another. According to Mnookin and Kornhauser’s “Bargaining in the Shadow of the Law” model, the law does not determine the outcome, but it still impacts the result reached.

This useful insight has not been applied to the problem of same-sex divorce, which poses especially interesting questions under the “Bargaining in the Shadow of the Law” model. The law governing same-sex marriage and divorce is unclear, ever changing, and widely divergent from state to state.8 The conventional story about same-sex couples and their families, such as the story told about heterosexual divorces before 1979, focuses solely on the relevant laws. There is no discussion of the role that these laws play as a “framework.” The literature focuses on such questions as: How do state laws treat same-sex couples? What rights should same-sex couples have? This Note focuses on a different issue: What effects do these state laws have on the actual experiences of same-sex couples when they negotiate their divorces?

Continue Reading Here 

*Jeremy Feigenbaum is a 2014 graduate of Harvard Law School. 


[1]. Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003).

[2]. Lynne Marie Kohm, What’s the Harm to Women and Children? A Prospective Analysis, in What’s the Harm: Does Legalizing Same-Sex Marriage Really Harm Individuals, Families or Society? 79, 79 (Lynn D. Wardle ed., 2008).

 [3]. Id.

 [4]. Gay “Marriage” First Couple Splits Up in Massachusetts, Wash. Times, July 21, 2006, http://www.washingtontimes.com/news/2006/jul/21/20060721-111920-1539r.

[5]. Id. (internal quotation marks omitted).

[6]. Kirk Johnson, Gay Divorce: Few Markers in This Realm, N.Y. Times, Aug. 12, 1994, http://www.nytimes.com/1994/08/12/us/gay-divorce-few-markers-in-this-realm.html.

[7]. Robert Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L.J. 950 (1979).

[8]. As of February 12, 2015, thirty-seven states and Washington, D.C., allow same-sex couples to marry. States, Freedom To Marry, http://www.freedomtomarry.org/states/ (last visited Feb. 12, 2015).

HNLR Student Note Competition

The Harvard Negotiation Law Review (HNLR) invites you to participate in our inaugural student note competition. Entrants are invited to write about any topic related to Alternative Dispute Resolution, including negotiation, mediation, arbitration, dispute systems design, conciliation, restorative justice, and facilitation. Submissions are typically between 4000 and 6000 words (not counting footnotes), although submissions of other lengths will be considered.

The winning submission will be published in volume 21, issue 1 (fall 2015). The HNLR student note competition is open to graduate-level students of any institution. Final submissions are due to hnlrsubmissions@gmail.com by May 22, 2015. Be sure to put “2015 Student Note Competition” in the subject line. If you have any questions, contact us at hnlr@mail.law.harvard.edu.

Exploring Identity at Harvard Law

“Never forget what you are, for surely the world will not. Make it your strength. Then it can never be your weakness. Armour yourself in it, and it will never be used to hurt you.” 
― George R.R. MartinA Game of Thrones

Executive Editor for HNLR Online, Yaseen Eldik, and Victoria Abraham introduce the Special Edition HNLR Identity Series.                                      
Painting by Anne-Valerie Prosper

The first year of study at Harvard Law School has been portrayed in different ways ranging from the comical Legally Blonde to the less cheery Paper Chase. Despite their obvious reflection of artistic interpretation, what they generally communicate is that law school is a process of identity transformation where a law student learns not only how to think like a lawyer, and be a lawyer, but also gains a deeper understanding of who they are. In the midst of this transition, the individual experiences of students can be overlooked. In the spring of 2014 (our 1L year), we proposed collaboration with the Harvard Negotiation Law Review to produce an essay competition that asked first year Harvard Law students to describe their transition to law school. It was titled the “Negotiating My 1L Identity Competition.” Of the essays that we received, two were selected for publication: The Interminable Search for Gold Stars,” written by Ariel Eckblad, and “IL as a Gemini,” written by Deanna Parrish. These essays fantastically and honestly capture the experiences of these two students as they adjusted to law school. While these pieces reflect their individual interactions with their peers at Harvard Law, we found their overall narratives captivating in their insightful ability to capture what 1L can feel like generally.

Anne-Valerie Prosper, a 2014 graduate of HLS, is the author of the third piece included in this series. Her essay, “The Matching Game”elegantly portrays her overall experience as a woman of color in law school beyond the first year transition. As captured by the narratives of these three women, every human being journeys through life facing experiences that challenge their sense of self. Such challenges usually instigate a reflective process. For most students who choose to study law in the United States, the first year of law school offers space for exponential growth. 1L at HLS can be a veritable trial by fire, that melts, molds, and reshapes even the most sturdiest of students into newer, more hardened, and wiser versions of their former selves. 1L can make us lose ourselves among flames of doubt, producing fearful questions that may make us question our self-worth. We then attempt to redefine success in specific ways that often include an attachment to academic accomplishment. This is the challenge of 1L. It lies not only in learning how to manage the workload and think, read, and write like a lawyer, but also in staying true to who we are and finding personally meaningful measures of success and achievement.

While navigating 1L, it is crucial to stay focused on our personal goals and desires, while not succumbing to the self-perpetuating stress machine that whirs and hums underneath every first-year interaction like a malfunctioning fan. This negotiation of identity is crucial to becoming the kinds of lawyers, leaders, activists, citizens, and global shapers that we all strive to become. It is the unexpected gift of 1L that bonds law students in the United States no matter how different our past lives and our future paths. Harvard Law School holds a dear place in our hearts, because it is an institution that tremendously invests in the experience of its students.

We hope that law students at Harvard and across the country will use these essays as an opportunity to reflect on their own transitions to law school and realize that they are not alone in their feelings of confusion and discomfort. Much time and energy has been invested in these three pieces and their authors have been brave in sharing their intimate thoughts. We hope, if nothing else, these pieces inspire you to think more critically about who you are and who you want to be as you transition into a respectful profession whose ultimate mission is to service the needs of others. After all, if one is going to serve others they should also be sure to serve themselves.

Yaseen Eldik and Victoria Abraham are second year J.D. students at Harvard Law School.

Eyes off the Runway: How to Prevent Piracy in Fashion

By Yaseen Eldik and Megan Michaels

“I am not interested in shock tactics. I just want to make beautiful clothes.” -Oscar De La Renta

 Fashion is an ubiquitous force in daily life. What to wear—and certainly what not to—is a deliberate choice for most individuals—a choice that inevitably forms a part of one’s identity. This manner of self-expression plays an ineluctable role in how one presents oneself socially and how one is perceived by others.1 As humans subconsciously and consciously react to visual cues, they judge others based on the clothing they wear. The Oxford English Dictionary captures the ambidexterity of the word “fashion”: it is to “make, build, shape; [so] in [a] wider sense, [it includes] visible characteristics [and] appearance [which can be] said both of material and of immaterial things.”2 This definition recognizes that fashion is a form of art.”3

Why then, have fashion designs been denied the same protection under United States’ intellectual property laws that other art forms, such as painting, sculpture, and even architecture, have been granted? The most common argument is that copyright law does not extend to fashion because clothing is strictly a “useful article”4 that serves the purpose of covering and protecting one’s body, and copyright does not protect utilitarian works.5 Others argue that fashion trends are fleeting and are recycled too often in order to warrant any period of protection.6 However, these and similar arguments do not adequately address the present text of the newest legislative proposal, the Innovative Design and Protection and Piracy Prevention Act (IDPPPA).

Fashion is a critical component of the United States economy and one of the most pervasive features of American culture; and as such, every designer and consumer is affected by the implications of this debate. Therefore, the United States must amend its current statutes or propose new regulations to grant property rights to designers and legal protection to their original ideas. This article intends to present to proponents and critics of design protection, a framework for reaching an agreement. Reframing the debate can help achieve a level of consensus such that a design copyright bill, like the IDPPPA, can be passed successfully. This article will examine the current laws that provide limited rights to designers in the United States. It will then evaluate the arguments that are made against the extension of copyright law proposed in the IDPPPA. Finally, the article will demonstrate the negative effect that the lack of design right has on the American economy, contrast the domestic legal regime with the European landscape, and recommend amendments to U.S. law based on European precedent.

Continue Reading Here

*Yaseen Eldik and Megan Michaels are second year JD students at Harvard Law School.

1The Value of Style, Psych. Today (July 1, 2005), http://www.psychologytoday.com/articles/200507/the-value-style.
2Fashion, Oxford English Dictionary, http://www.oed.com.ezp-prod1.hul.harvard.edu/view/Entry/68389?rskey=1MFaOV&result=1#eid (last visited Sept. 25 2014).
3Art is “The expression or application of creative skill and imagination, typically in a visual form such as painting, drawing, or sculpture, producing works to be appreciated primarily for their beauty or emotional power.” Art, Oxford English Dictionary, http://www.oed.com.ezp-prod1.hul.harvard.edu/view/Entry/11125?rskey=tgrlPJ&result=1&isAdvanced=false#eid (last visited Sept. 25 2014).
4Useful article is defined in 17 U.S.C.S. § 101 as one with “an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.”
5Boyds Collection v. Bearington Collection, Inc., 360 F. Supp. 2d 655, 661, (M.D. Pa. 2005).
6See Xiao, Emma Yao, Note, The New Trend, Protecting, American Fashion Designs Through National Copyright Measures, 28 Cardozo Arts & Ent. L.J. 417, 436 (2011).



An Introduction to The Advocates and the Work of Professor Roger Fisher: A Prequel to the Program on Negotiation


By R. Lisle Baker, Professor of Law, Suffolk University Law School, HLS ‘68 and former advocate on The Advocates.

Before Roger Fisher founded the Program on Negotiation at Harvard Law School, he was nationally recognized for having created an award-winning public affairs television show, The Advocates, which aired on the Public Broadcasting System. Over the course of its five year season, beginning in 1969 (plus additional shows in 1978-79 and in 1984), The Advocates previewed some of the ideas that appeared in Roger’s many writings and, eventually, as part of the Program on Negotiation itself. As such, it may be helpful to HNLR readers to know more about the show.

The Advocates used a modified trial format to debate what Roger called an “important public trouble,” not in the abstract, but in terms of what Roger called “a decidable question”—a situation where someone, whether a public figure or an individual citizen at home, had to decide what to do. Viewers in the studio audience or at home in their living rooms were invited to weigh in by mail, and during the first season, a remote audience on location somewhere else in the country offered their opinions as well. He saw this as part of an effort to help citizens make “public affairs your affairs.”

The Advocates was produced initially through a joint effort by WGBH in Boston and KCET in Los Angeles, two flagship stations in the public broadcasting network. The Advocates addressed issues ranging from civil disobedience to same-sex marriage. In some cases, the shows are more than four decades old, but many of the issues are still timely.


            [Above is a photograph of the portrait of Professor Roger Fisher by Polly Thayer given by Professor and Mrs. Fisher in 1992, which hangs in the offices of the Program on Negotiation in Pound Hall at Harvard Law School; Photo by Narine Karapetyan; reproduced with permission from the Program on Negotiation and Ms. Karapetyan. ]

When Roger was later teaching the Negotiation Workshop at Harvard Law School, in which I was a participant, he once said that preparing for trial and preparing for negotiation were very similar, except that in negotiation, “the judge you have to persuade is sitting across the table.”

With The Advocates, you begin to get a clear sense of what he meant, in that the judge was really the viewer at home, rather than an adversary or impartial jurist. On the show, Roger played multiple roles: executive editor and moderator of the show during its first season; then later, as an advocate. I saw some of his multifaceted talent in action while I worked with him on the show during that first season. I took a leave of absence from law practice from 1969-70 to appear in thirteen episodes as a Boston-based advocate on the show, arguing one side or another of the issue which was assigned to me and the producers I worked with.

Over time, The Advocates changed into more of a partisan debate on public questions, often with a regular liberal and conservative advocate, or advocates who were publically identified with a specific issue. While this perhaps made for simpler television, the show may have lost some of Roger’s original mission: to frame public choices as necessarily challenging decisions, with positives and negatives for either course of action, rather than right paths versus wrong ones. This was a preview of his later (and famous) “presently perceived choice,” the idea that something which seems sensible to you might look different to someone on the other side of a dispute.

To learn more about The Advocates, Roger Fisher’s role in it, and some of the lessons the show has for us even after over forty years, you can read my more extensive introduction to the show, The Advocates: a retrospective on an important—and still relevant—innovation in public affairs television, reproduced here on the HNLR web site courtesy of WGBH Educational Foundation, Media Library and Archives, which also includes a link to the WGBH Open Vault website about the show.

The WGBH Open Vault website presents many episodes of The Advocates in their entirety, including a newly added episode in which Roger appeared as an advocate opposite William Kunstler on the subject of civil disobedience to the Vietnam War. This episode was shown by the Program on Negotiation at Harvard Law School at a special presentation on February 28, 2013, in preparation for a special Harvard Negotiation Law Review Symposium on Roger’s legacy held at Harvard Law School on March 1, 2013. The article for WGBH grew out of my introduction to that February 28th presentation. This article includes references to clips from that and several other episodes, and also contains a list of The Advocates shows that were produced, as well as links to those shows which have been made available on the WGBH Open Vault.

While Professor Fisher is no longer with us, we can continue to learn from his example.

Main Article

Related sites, archives or other material relevant to The Advocates, Professor Roger Fisher, or the Author, Professor Lisle Baker