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Concepcion's Pro-Defendant Biasing Of The Arbitration Process: The Class Counsel Solution, David Korn, David Rosenberg
Concepcion's Pro-Defendant Biasing Of The Arbitration Process: The Class Counsel Solution, David Korn, David Rosenberg
University of Michigan Journal of Law Reform
By mandating that numerous plaintiffs litigate their common question claims separately in individual arbitrations rather than jointly in class action arbitrations, the Supreme Court in AT&T Mobility LLC v. Concepcion entrenched a potent structural and systemic bias in favor of defendants. The bias arises from the parties' divergent stakes in the outcome of the common question litigation in individual arbitrations: each plaintiff will only invest to maximize the value of his or her own claim, but the defendant has an incentive to protect its entire exposure and thus will have a classwide incentive to invest more in contesting common questions. …
Environmental Deliberative Democracy And The Search For Administrative Legitimacy: A Legal, Positivism Approach, Michael Ray Harris
Environmental Deliberative Democracy And The Search For Administrative Legitimacy: A Legal, Positivism Approach, Michael Ray Harris
University of Michigan Journal of Law Reform
The failure of regulatory systems over the past two decades to lessen the environment degradation associated with modern human economic output has begun to undermine the legitimacy of environmental lawmaking in the United States and around the world. Recent scholarship suggests that reversal of this trend will require a breach of the environmental administrative apparatus by democratization of a particular kind, namely the inclusion of greater public discourse within the context of regulatory decision-making. This Article examines this claim through the lens of modern legal positivism. Legal positivism provides the tools necessary to test for and identify the specfic structural …
Nlra Preemption Of State Law Actions For Wrongful Discharge In Violation Of Public Policy, Thomas Bean
Nlra Preemption Of State Law Actions For Wrongful Discharge In Violation Of Public Policy, Thomas Bean
University of Michigan Journal of Law Reform
This Note considers the circumstances under which the NLRA should preempt state law tort suits for discharge in contravention of public policy by employees covered by a collective bargaining agreement, and by at-will employees. Part I discusses the rationale behind the preemption doctrine and outlines the tests the Supreme Court has adopted for determining when the NLRA preempts state laws. Part II argues that the specific rationale behind the Court's preemption tests are inapplicable to the typical public policy wrongful discharge action. Part III identifies the ways in which public policy wrongful discharge actions might infringe on the NLRA. It …