Law Commons^™

Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine

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Can a privately negotiated arbitration agreement deprive employees of the statutory right to sue in court on claims of discrimination in employment because of race, sex, religion, age, disability, and similar grounds prohibited by federal law? Two leading U.S. Supreme Court decisions, decided almost two decades apart, reached substantially different answers to this questionand arguably stood logic on its head in the process. In the earlier case of Alexander v. Gardner-Denver Co., involving arbitration under a collective bargaining agreement, the Court held an adverse award did not preclude a subsequent federal court action by the black grievant alleging racial discrimination. …

The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine

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A quarter century ago, in a provocative and prophetic article, David E. Feller lamented the imminent close of what he described as labor arbitration's "golden age." I have expressed reservations about that characterization, insofar as it suggested an impending shrinkage in the stature of arbitration. But Professor Feller was right on target in one important respect. Labor arbitration was going to change dramatically from the autonomous institution in the relatively self-contained world of union-management relations which it had been from the end of World War II into the 1970s. When the subject matter was largely confined to union-employer agreements, arbitration …

Compulsory Arbitration Of Discrimination Claims And The Civil Rights Act Of 1991: Encouraged Or Proscribed?, Mark Adams

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No abstract provided.

Mandatory Arbitration Of Employee Discrimination Claims: Unmitigated Evil Or Blessing In Disguise?, Theodore J. St. Antoine

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One of the hottest current issues in employment law is the use of mandatory arbitration to resolve workplace disputes. Typically, an employer will make it a condition of employment that employees must agree to arbitrate any claims arising out of the job, including claims based on statutory rights against discrimination, instead of going to court. On the face of it, this is a brazen affront to public policy. Citizens are being deprived of the forum provided them by law. And indeed numerous scholars and public and private bodies have condemned the use of mandatory arbitration. Yet the insight of that …

Globalisation Of Contract Law: Rules For Commercial Contracts In The 21st Century, Whitmore Gray

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This is a paper given at the Asia-Pacific Lawyers Association meeting held in Bangkok in November 1995. The author describes the principles of international commercial contracts published in 1994 by the International Institute for the Unification of Private Law. Professor Gray sees a new era of harmonisation of contract law. An appendix gives an abstract of a contract law decision given by an Austrian Court in 1994.

Caesar Would Have Arbitrated, Hugh D. Spitzer

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With the recent increase in mandatory arbitration for small civil disputes and voluntary arbitration for much larger cases, it is easy to suppose that dispute resolution by someone other than a government- appointed judge is a novel, imaginative creation of the modern legal system.

But for the Romans who lived in Julius Caesar's time, indeed from several hundred years B.C. to at least 300 A.D., most civil matters never went to an official "judge." Instead, almost all such disputes were resolved by a lay arbitrator under a remarkably flexible and enduring system of civil procedure that worked as effectively as …

International Trade Law And The Arbitration Of Administrative Law Matters: Farrel V. U.S. International Trade Commission, Ronald A. Brand

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With support from the executive branch, Congress, and the courts, arbitration has become an increasingly popular method of international dispute resolution. While agreements to arbitrate traditionally were frowned upon, particularly when the dispute involved certain “public law” or “statutory” matters, the situation has changed dramatically in the past few decades. United States courts now routinely order arbitration of disputes implicating important policy issues in securities, antitrust, Racketeer Influenced and Corrupt Organizations (“RICO”), and employment law matters. By the end of the 1980’s, the presence of a public or “statutory” issue seemed no longer to be a distinguishing factor; arbitration, when …

The Government And Union Democracy, Theodore J. St. Antoine

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The desirability of union democracy is generally regarded today as a self-evident proposition. In this Symposium Clyde Summers treats it as a "fundamental premise." But there have always been reputable scholars who would support the thesis, in greater or lesser degree, that "democracy is as inappropriate within the international headquarters of the UAW as it is in the front office of General Motors."

Afterword To Chicago-Kent Law Review, Theodore J. St. Antoine

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A unifying theme of this Symposium is as old and enduring as the common law: when and how can a well-established, successful adjudicative institution be adapted to meet the demands of new and substantially different situations? There have been splendid triumphs of transference, such as Lord Mansfield's appropriation of the law merchant in the eighteenth century as a major building block of modem commercial law. There have also been embarrassing failures, like the abortive effort to transport American labor law concepts en masse into the alien British environment of the early 1970s. The common question confronting the participants in this …

Deferral To Arbitration And Use Of External Law In Arbitration, Theodore J. St. Antoine

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proper definition of the appropriate roles of arbitrators, administrative agencies and the courts depends in great part on the notion that, generally speaking, in labor relations, the interpretation and application of contracts is for arbitrators, and the interpretation and application of statutes is for the administrative agencies and the courts. Arbitrators deal primarily with contract rights and administrative agencies, like the NLRB and the courts, deal primarily with statutory rights. If that distinction is maintained, the problems of deferral to arbitration and the use of external law in arbitration can be more easily resolved.

Integrity And Circumspection: The Labor Law Vision Of Bernard D. Meltzer, Theodore J. St. Antoine

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Bernard Meltzer has testified under oath that he "rarely take[s] absolute positions." The record bears him out. While his colleagues among labor law scholars often strain to demonstrate that the labor relations statutes and even the Constitution support their hearts' desires, the typical Meltzer stance is one of cool detachment, pragmatic assessment, and cautious, balanced judgment. The "itch to do good," Meltzer has remarked wryly, "is a doubtful basis for jurisdiction" -or, he would likely add, for any other legal conclusion. In this brief commentary I propose to examine the Meltzer approach to four broad areas of labor law: (1) …

Enforceability Of Agreements To Arbitrate: An Examination Of The Public Policy Defense, Stewart E. Sterk

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This Article seeks to demonstrate that the public policy of doctrine should be, and in general has been, limited to two types of cases. First, as already discussed, an agreement to arbitrate should not be enforced when the statute or case law principle at issue has aims other than promoting justice between the parties. Second, when a party to the agreement belongs to a class peculiarly subject to imposition by the class to which the other party belongs, an agreement to arbitrate will not and should not be enforced.

In the latter class of cases, the susceptibility to imposition may …

Judicial Review Of Labor Arbitration Awards: A Second Look At Enterprise Wheel And Its Progeny, Theodore J. St. Antoine

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Logic, so the cliche goes, is not the life of the law. But logic is very much like the DNA of the law-the structural principle without which all is sprawl and muddle. In the last ten years a controversy has raged over the role of the labor arbitrator in issuing awards, and the role of the courts in reviewing and enforcing those awards. This controversy has largely taken the form of a continuing debate among scholars and practicing arbitrators at the annual meetings of the National Academy of Arbitrators. With due respect to the thoughtful and experienced persons who have …

Judicial Valour And The Warren Court's Labor Decisions, Theodore J. St. Antoine

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Lawyers who practice regularly before the Supreme Court are likely to prepare their arguments with a specific Justice in mind. The choice does not necessarily turn on who might be the swing vote in a given case. Often it is just a matter of which Justice can be relied upon, because of his particular interests and his insight, to search out the strengths and weaknesses of the opposing positions, and to see that all the hard questions are asked. In a labor case during the early years of the Warren Court, that would usually have meant Justice Frankfurter. Later on, …

A Touchstone For Labor Board Remedies, Theodore J. St. Antoine

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Fashion dictates what lawyers argue about, and law professors write about, more than we may care to admit. In labor law, especially, the styles change with a rapidity that would impress a Paris couturier. During the past decade the spotlight has moved from union democracy to labor contract enforcement to the union organizing campaign. Today the "in" topic is National Labor Relations Board (NLRB) remedies. Yet if any subject deserves immunity from the vagaries of fashion, this is the one; for all rights acquire substance only insofar as they are backed by effective remedies. Coke said it long ago: "[W]ant …

Waiver Of State Immunity, Edwin D. Dickinson

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"English and American courts have come to regard it as 'an axiom of international law' that foreign states should be immune from suit in the national tribunals unless they to the expressly or impliedly waive their immunity and submit to the jurisdiction.... Yet it has not been doubted that states may waive immunity and submit to the local jurisdiction if they wish. In practice they frequently find it advantageous to do so. Some difficult questions arise when it becomes necessary to define the requisites of a waiver or to determine its precise effect in a particular case."

A Comparison Of Some Methods Of Conciliation And Arbitration Of Industrial Disputes, James H. Brewster

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In these times when we see combinations of employers co-operating under trade agreements with combinations of employees to conduct immense industries, we are apt to forget the remarkable development of ideas concerning industrial economy that has occurred within a life-time. It was only eighty years ago that the merchants of Boston met to discountenance and check what were then regarded as unlawful combinations of workmen formed to protest against the long work day, low wages, and oppressive rules of their masters. The sum of $20,000 was raised at this meeting of merchants and ship owners to fight the movement for …