Law Commons^™

Arbitral And Judicial Proceedings: Indistinguishable Justice Or Justice Denied?, Pat K. Chew

Articles

This is an exploratory study comparing the processes and outcomes in the arbitration and the litigation of workplace racial harassment cases. Drawing from an emerging large database of arbitral opinions, this article indicates that arbitration outcomes yield a lower percentage of employee successes than in litigation of these types of cases. At the same time, while arbitration proceedings have some of the same legal formalities (legal representation, legal briefs), they do not have other protective procedural safeguards.

Construction Law, Christopher G. Hill

University of Richmond Law Review

This article will review recent case law and legislative enactments in Virginia of significance to Virginia's contractors, subcontractors, material suppliers and design professionals. The article will also discuss the growing sustainable or "green" building trend in Virginia and elsewhere and the potential issues that this relatively new phenomenon will raise.

Legislating In The Light: Considering Empirical Data In Crafting Arbitration Reforms, Amy J. Schmitz

Faculty Publications

Consumer advocates and policymakers call for abolition of predispute arbitration clauses in consumer contracts, while proponents of arbitration claim such abolition would increase companies’ dispute resolution costs, leading to higher prices and interest rates. Policymakers on both sides of the debate, however, rarely consider the empirical research necessary for crafting informed arbitration disclosure rules. This article therefore focuses on how varied research, including my own empirical studies, may inform policies regarding arbitration disclosure regulations. The article also offers suggestions for regulations tailored to have the most impact for the cost in light of this research.

Employee Free Choice Or Employee Forged Choice? Race In The Mirror Of Exclusionary Hierarchy, Harry G. Hutchinson

Michigan Journal of Race and Law

The Employee Free Choice Act (EFCA) is arguably the most transformative piece of labor legislation to come before Congress since the enactment of the National Labor Relations Act of 1935 (NLRA). One of the newest attempts to transform labor relations is the EFCA. The first to disappear under the EFCA would be a system of union democracy whereby unions could only obtain the rights of exclusive representation for firms if they could prevail in a secret-ballot election. Second, the EFCA would eliminate tile necessity of a freely negotiated collective bargaining agreement between management and labor and instead substitute compulsory arbitration. …

Labor And Employment Law, Vijay K. Mago, Nancy B. Sasser, Allison M. Perry

University of Richmond Law Review

No abstract provided.

Duty Of Fair Representation Jurisprudential Reform: The Need To Adjudicate Disputes In Internal Union Review Tribunals And The Forgotten Remedy Of Re-Arbitration, Mitchell H. Rubinstein

University of Michigan Journal of Law Reform

One of the best kept secrets in American labor law is that duty of fair representation jurisprudence simply does not work. It does not work for plaintiff union members because they must satisfy a close-to-impossible burden of proof and have a short statute of limitations window in which to assert their claim. It does not work for defendant unions because they are often forced to file pointless grievances in order to avoid the cost of litigation. It does not work for defendant employers because they are often brought into these lawsuits because they have the "deep pockets."

This Article makes …

Construction Law, D. Stan Barnhill

University of Richmond Law Review

No abstract provided.

Labor And Employment Law, David C. Burton, Melissa L. Lykins

University of Richmond Law Review

No abstract provided.

Blame It On The Bee Gees: The Attack On Trial Lawyers And Civil Justice, Robert S. Peck, John Vail

NYLS Law Review

No abstract provided.

Bootstrapping And Slouching Toward Gomorrah: Arbitral Infatuation And The Decline Of Consent, Jeffrey W. Stempel

Scholarly Works

The Seventh Amendment to the Constitution preserves for litigants a right to a jury trial in actions at law. The right to a jury trial does not attach for equitable actions, but in cases presenting claims for both legal and equitable relief a right to a jury trial exists for common questions of fact. Although many modern statutes and claims did not exist in 1791, the Amendment has been interpreted to require a jury trial of statutory claims seeking monetary damages, the classic form of legal relief, so long as there is a relatively apt analogy between the modern statutory …

Due Process Review Under The Railway Labor Act, Christopher L. Sagers

Michigan Law Review

This Note contends that the RLA prohibits due process review and further argues that such a result is constitutional. Part I examines the statutory language of the RLA itself and contends that it limits district court review to the three statutory grounds. Part II argues that the Supreme Court's opinion in Sheehan reaffirms this interpretation because the Court's language unmistakably conveys an intent to bar due process review. Part III explains that such a limitation does not violate the Constitution. The only constitutional provision that could be implicated in an RLA proceeding, the right of procedural due process, is protected …

Employment Discrimination Claims Under Erisa Section 510: Should Courts Require Exhaustion Of Arbitral And Plan Remedies?, Jared A. Goldstein

Michigan Law Review

This Note examines whether courts should require section 510 claimants to exhaust either plan-based or arbitral remedies before seeking judicial relief. It begins by comparing the basis for an exhaustion requirement with respect to benefits claims with the basis for such a requirement with respect to statutory claims - like those under section 510. Part I examines the rationale courts have offered for requiring exhaustion of plan remedies for benefits claims. Part I concludes that federal courts have correctly determined that Congress intended individuals bringing benefits claims to exhaust the remedies provided by the plan before seeking judicial relief. Part …

Arbitrability In Recent Federal Civil Rights Legislation: The Need For Amendment, Douglas E. Abrams

Faculty Publications

This Article discusses the shortcomings inherent in the consideration and enactment of the arbitrability provisions of the ADA and the 1991 Civil Rights Act. As a threshold matter, Part II demonstrates that the latter Act's textual encouragement of arbitration indicates that Congress misapprehended the effect of Gilmer, which the Supreme Court had decided barely six months before the Act's passage. Specifically, this Part will argue that after Gilmer, textual encouragement of arbitration has little or no greater legal significance than textual silence would have. In the few decades before the decision, textual encouragement would have had significant impact because particular …

Reconsidering The Employment Contract Exclusion In Section 1 Of The Federal Arbitration Act: Correcting The Judiciary's Failure Of Statutory Vision, Jeffrey W. Stempel

Scholarly Works

The Federal Arbitration Act (the Act), seeks to eliminate centuries of perceived judicial hostility toward arbitration agreements. The Act made written arbitration agreements involving interstate commerce specifically enforceable. It also provided a procedural structure for enforcing awards, which were protected through deferential judicial review. The Act intended to have a wide reach, employing a broad definition of commerce that has presumably grown in breadth along with the expansion of judicial notions of commerce. Although courts applied the Act in tentative and cautious fashion until the 1960's, arbitration gained momentum during the 1970's and the 1980's. Despite growing judicial enthusiasm for …

Pitfalls Of Public Policy: The Case Of Arbitration Agreements, Jeffrey W. Stempel

Scholarly Works

As the juxtaposition of these quotations suggests, judges have long held disparate views on the legitimacy and value of “public policy” considerations as a basis for legal decision making. The popular notion posits that Justice Holmes and legal realists carried the day, making public policy analysis an ordinary part of the adjudication process. The story, of course, is more complex than this legal version of Don Quixote. Many judges and lawyers, including Justice Holmes in other writings, continued to speak of adjudication in more formalist and positivist terms, with most laypersons in apparent agreement. Judge Burroughs' view of public policy …

International Commercial Arbitration In The United States: Considering Whether To Adopt Uncitral's Model Law, Patrick John Potter

Michigan Journal of International Law

This Note will explore some of the areas overlooked by the Committee, including the benefits and burdens which adopting the Model Law would involve. Part One briefly describes the Model Law's background and provides a summary of its articles. Part Two discusses some factors that should be considered when Congress decides whether or not to adopt the Model Law. Part Three summarizes the present status of international commercial arbitration law in the United States, and recommends en bloc adoption of the Model Law. Enacting a separate international arbitration law that is familiar to foreigners will facilitate arbitration with U.S. parties. …

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

Articles

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) …

New York: The Right To Discharge At-Will Employees Post Weiner, John V. Dember

Touro Law Review

No abstract provided.

Reforming At-Will Employment Law: A Model Statute, Liana Gioia, Per Ramford

University of Michigan Journal of Law Reform

Effective relief for at-will employees can only be achieved through statutory reform. Although specific legislation has been proposed on the federal

Buffalo Forge Co. V. United Steelworkers: The Supreme Court Sanctions Sympathy Strikes, Michael E. Kushner

Cleveland State Law Review

The Norris-LaGuardia Act was enacted in 1932 to curb the unbridled use of the federal injunction as a remedy in labor-management disputes. After enactment of the Norris-LaGuardia Act, labor unions grew and gained substantial collective bargaining power. Congressional policy then shifted to encouraging the effective enforcement of collective bargaining agreements between employers and unions. Subsequent to enactment of the LMRA, the no-strike obligation and arbitration procedures became standard bargained-for provisions. However, Judges soon refused to enjoin strikes in alleged violation of no-strike clauses, basing their decisions on the force of section 4. Employers contended that the more recent section 301 …

Religious Discrimination And The Role Of Arbitration Under Title Vii, Harry T. Edwards, Joel H. Kaplan

Michigan Law Review

One of the major thrusts of the Civil Rights Act of 1964, passed by the 88th Congress of the United States after much procrastination and debate, is title VII, the Equal Employment Opportunity Act, which prohibits selected forms of employment discrimination.

In drafting title VII, the proponents of the Act were chiefly concerned with racial discrimination in employment. In fact, the entire Civil Rights Act was written with an eye toward the elimination of the "glaring ... discrimination against Negroes which exists throughout our nation." Given this intent, it is not surprising that, during the hearings and debates preceding the …

Michigan Compulsory Arbitration Act For Essential Services, William J. Rainey

University of Michigan Journal of Law Reform

When Public Act 312 became effective on October 1, 1969, Michigan joined Rhode Island and Pennsylvania in permitting compulsory arbitration of unresolved labor disputes involving municipal police and firemen. Wyoming similarly provides for compulsory arbitration in fire department disputes. Passage of the Act was prompted by a desire to avoid the dire consequences of strikes or work stoppages by firefighters and policemen, and to provide a method by which the bargaining power of public service unions could be maintained in the absence of the strike privilege. Since Michigan had barred strikes by public employees in 1947, the unions felt that …

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

Articles

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

Articles

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 …

Procedural Arbitrability Under Section 301 Of The Lmra, Alan Schwartz

Articles by Maurer Faculty

No abstract provided.

No-Strike Clauses In The Federal Courts, Frank H. Stewart

Michigan Law Review

One consideration will support several promises. A promisor may extract more than one promise in return for his single undertaking to do - or not to do. It depends upon his bargaining power. His single undertaking may be so valuable that several promises are necessary to induce him to act, or not to act. He is privileged to hold out for the best deal. The law does not examine his motives or reduce his demands. And from this arises the common- law principle that one consideration may support several promises.

The Status Of The Collective Labor Agreement In France, Robert J. Nye

Michigan Law Review

This paper is intended to outline in historical perspective the statutory, judicial, administrative and social developments which have made the collective agreement an indispensable accessory to legislative and judicial regulation in France.

The Authority Of The National War Labor Board Over Labor Disputes, Leonard B. Boudin

Michigan Law Review

The National War Labor Board has reached the respectable age of two years. Supported originally only by the President's war powers, it has secured compliance with its orders, has weathered a minor congressional investigation, and has built up a body of decisions whose effect will continue after the war. These facts, as well as certain signs of the conservatism which appears to strike all government agencies at one time or another, entitle the board to a short survey of certain aspects of its jurisdiction and authority.

The State Legislatures And Unionism: A Survey Of State Legislation Relating To Problems Of Unionization And Collective Bargaining, Russell A. Smith, William J. Delancey

Michigan Law Review

'There ought to be a law!" So declared labor and its friends in the early days of the New Deal, and the Wagner Act and "little" Wagner acts (the "labor relations acts") were the legislative response. Now, some five years later, with Utopia in labor relations not yet at hand, the hue and cry goes up for still more law, both state and federal. In part this is the typical American reaction to particular irritations and assumes with the usual naiveté that there is a single legislative specific for every isolated ailment. In part it is the equally typical reaction …