Law Commons^™

The Oligarchic Courthouse: Jurisdiction, Corporate Power, And Democratic Decline, Helen Hershkoff, Luke Norris

Michigan Law Review

Jurisdiction is foundational to the exercise of judicial power. It is precisely for this reason that subject matter jurisdiction, the species of judicial power that gives a court authority to resolve a dispute, has today come to the center of a struggle between corporate litigants and the regulatory state. In a pronounced trend, corporations are using jurisdictional maneuvers to manipulate forum choice. Along the way, they are wearing out less-resourced parties, circumventing hearings on the merits, and insulating themselves from laws that seek to govern their behavior. Corporations have done so by making creative arguments to lock plaintiffs out of …

Shots Fired: Digging The Uniformed Services Employment And Reemployment Rights Act Out Of The Trenches Of Arbitration, Lisa Limb

Michigan Law Review

The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted to protect servicemembers from discrimination by civilian employers and to provide servicemembers with reemployment rights. Recent circuit court decisions, however, have maimed these protections by ruling that mandatory arbitration is permissible under USERRA. This Note argues that such rulings conflict with USERRA’s plain language, statutory structure, and purpose. Ultimately, in light of strong public policy considerations, this Note contends that mandatory arbitration should not be permissible under USERRA and proposes that Congress amend the Act to explicitly prohibit arbitration.

Improving Employer Accountability In A World Of Private Dispute Resolution, Hope Brinn

Michigan Law Review

Private litigation is the primary enforcement mechanism for employment discrimination laws like Title VII, the Americans with Disabilities Act, and many related state statutes. But the expansion of extrajudicial dispute resolution—including both arbitration and prelitigation settlement agreements—has compromised this means of enforcement. This Note argues that state-enacted qui tam laws can revitalize the enforcement capacity of private litigation and provides a roadmap for enacting such legislation.

Promises Unfulfilled: How Investment Arbitration Tribunals Mishandle Corruption Claims And Undermine International Development, Andrew T. Bulovsky

Michigan Law Review

In recent years, the investment-arbitration and anti-corruption regimes have been in tension. Investment tribunals have jurisdiction to arbitrate disputes between investors and host states under international treaties that provide substantive protections for private investments. But these tribunals will typically decline to exercise jurisdiction over a dispute if the host state asserts that corruption tainted the investment. When tribunals close their doors to ag-grieved investors, tribunals increase the risks for investors and thus raise the cost of international investment. At the same time, the decision to decline jurisdiction creates a perverse incentive for host states to turn a blind eye to …

Employment Law And Social Equality, Samuel R. Bagenstos

Michigan Law Review

What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation. Against both of these positions, this Article argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. This Article argues that individual employment law, like employment discrimination law, is justified as preventing employers from contributing to or …

Arbitration: Time Limits And Continuing Violations, Richard I. Bloch

Michigan Law Review

Time limits in a collective bargaining agreement, particularly as they apply to the grievance procedure, are very important. Filing or processing deadlines are taken as seriously in the context of these private documents and negotiated time limits as they are in the world of standard litigation, with deadlines that are imposed statutorily or otherwise. Management advocates often view the time limitation provisions as virtually the only thing employers gain, as opposed to give, in the bargaining relationship. Deadlines have been strictly, if reluctantly, construed by most arbitrators. The "continuing violation" provides a meaningful exception to the otherwise immutable time bar. …

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 …

The Uncitral Framework For Arbitration In Contemporary Perspective, Alyssa A. Grikscheit

Michigan Law Review

A Review of The UNCITRAL Framework for Arbitration in Contemporary Perspective by Isaak I. Dore

Interlocutory Appeal Of Orders Granting Or Denying Stays Of Arbitration, Michigan Law Review

Michigan Law Review

This Note attempts to resolve the conflict among the courts of appeals by examining the interests affected by orders granting and denying stays of arbitration. Part I considers the appealability of such orders under the collateral order doctrine developed by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp. This doctrine permits interlocutory appeal of final orders adjudicating an important right that is collateral to the merits of the case and effectively unreviewable in a final judgment appeal. Part II considers whether orders on motions for stays of arbitration are reviewable as orders granting or refusing injunctions under …

The Integrity Of The Arbitral Process, Roger I. Abrams

Michigan Law Review

Over twenty years ago Dean Shulman and Professor Cox debated through the pages of the Harvard Law Review the question of the role law should play in labor arbitration. Shulman urged "that the law stay out," while Cox argued that courts would come to understand the special nature of the arbitration process and would accordingly limit the extent of judicial intervention. The impact of their discussion has, of course, been mooted by the numerous judicial decisions implanting private arbitration within the federal law of the collective agreement. From the Supreme Court has come a formidable legal superstructure for the labor …

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 …

Labor Law--Jurisdiction--Contractual Interpretation, Unfair Labor Practices, And Arbitration: A Proposed Resolution Of Jurisdictional Overlap, Michigan Law Review

Michigan Law Review

In San Diego Building Trades Council v. Garmon, the Supreme Court held that the state and federal courts must defer to the exclusive jurisdiction of the National Labor Relations Board when an activity is arguably an unfair labor practice as defined by the National Labor Relations Act (NLRA). At the same time, section 301(a) of the Labor Management Relations Act (LMRA) provides that the courts have jurisdiction in actions alleging violations of collective agreements. Two distinct factual settings have emerged in which these jurisdictional propositions are at odds.

Labor Law-Arbitration And Award-Judicial Review Of Labor Arbitration Awards Which Rely On The Practices Of The Parties, Michigan Law Review

Michigan Law Review

Modem collective bargaining agreements typically provide for private arbitration as the means of resolving disputes between employees and management over the interpretation and application of the agreement. In the event the arbitrator's decision is challenged in court by the adversely-affected party, the question of how much judicial deference should be given to the private ruling becomes of some importance. The Supreme Court has set out guidelines which purport to define the proper role of courts in such disputes-that role being for the most part one of judicial deference to arbitrator's decisions. Nevertheless, the appropriate scope of judicial review remains unclear. …

Admissibility Of Parol Evidence In Judicial Determinations Of Arbitrability, Michigan Law Review

Michigan Law Review

Whether parol evidence of bargaining history is admissible in a court's determination of arbitrability is a problem arising out of the United States Supreme Court's 1960 decisions in the Steelworkers Trilogy. The Court there emphasized the national labor policy favoring arbitration as the best means of resolving labor disputes. Citing its earlier Lincoln Mills decision interpreting section 301(a) of the Labor Management Relations Act, the Court stated that, in enacting section 301, Congress assigned the question of the jurisdiction of an arbitrator to the courts in the absence of an agreement by the parties specifically assigning the question to …

The Supreme Court And Labor Dispute Arbitration: The Emerging Federal Law, Russell A. Smith, Dallas L. Jones

Michigan Law Review

Within the past few years, the United States Supreme Court has handed down a number of decisions of great significance to the labor dispute arbitration process. Some have been concerned with problems of arbitrability or arbitral authority; others with the availability and exclusivity of the arbitration process vis-a-vis alternative legal remedies for breach of the labor agreement; and still others with the effect of a breach of obligation by one party to the labor agreement upon the obligations of the other party. We propose in this article to analyze these decisions, to attempt to categorize the different kinds of challenges …

Management And Labor Appraisals And Criticisms Of The Arbitration Process: A Report With Comments, Dallas L. Jones, Russell A. Smith

Michigan Law Review

Although arbitration as a means of resolving disputes arising under collective bargaining agreements has received widespread acceptance in this country/ in recent years there has been some evidence of increasing criticism of the process. As part of a research project dealing with the impact of the 1960 Supreme Court decisions in the Warrior & Gulf "trilogy" and the 1962 Sinclair "trilogy," we decided to ascertain how parties are appraising the arbitration process. We report here the more significant results of this survey along with our evaluation of the criticisms and suggestions which were received.

Labor Law-Collective Bargaining Agreements-Implied Limitation On Management's Right To Subcontract, A. Paul Victor

Michigan Law Review

During the existence of a collective bargaining agreement which included both exclusive recognition and union shop clauses but did not include a management prerogatives clause, defendant employer, without the consent of the plaintiff union, contracted out janitorial work which had previously been performed by three of its employees. Subsequently, these employees were laid off and the plaintiff's protest, though in compliance with all grievance procedures, was unsuccessful. Thereupon, the plaintiff sought declaratory judgment relief under section 301 of the Labor-Management Relations Act, alleging that the defendant had no right to subcontract work customarily performed on its premises by its employees …

Labor Law-Collective Bargaining Agreements-Sham Exception To The Parol Evidence Rule In Welfare Trust Fund Agreement, John M. Price

Michigan Law Review

Defendant, shortly after commencing a small-scale strip-mining operation, signed a standard United Mine Workers collective bargaining agreement. He claimed that before signing he informed the union representative that he could not pay the union wage scale, or the specified royalty payments to the plaintiffs, trustees of the union welfare and retirement fund, and that he signed only after being assured that the agreement was a mere formality. Defendant did not pay union wages, and sent monthly checks to the plaintiffs only in amounts he felt he could afford. Plaintiffs brought suit on the written agreement for payment of the royalties …

Some Problems Of Evidence Before The Labor Arbitrator, R. W. Fleming

Michigan Law Review

Legal rules of evidence do not, of course, apply before the labor arbitrator. This is not surprising since such rules were developed in connection with jury trials, and do not apply strictly in any tribunal but a jury-court. The whole theory of the arbitration tribunal is that it is composed of experts who repeatedly inquire into a relatively homogeneous kind of cases. Exclusionary rules are hardly required as a precautionary measure. Indeed, as the late Harry Shulman said in his classic Oliver Wendell Holmes lecture at Harvard in 1955, "The more serious danger is not that the arbitrator will hear …

Past Practice And The Administration Of Collective Bargaining Agreements, Richard Mittenthal

Michigan Law Review

In a recent United States Supreme Court decision, Mr. Justice Douglas, speaking for the majority, stated that "the labor arbitrator's source of law is not confined to the express provisions of the contract, as the industrial common law-the practices of the industry and the shop-is equally a part of the collective bargaining agreement although not expressed in it." When compared to actual management-union experiences in contract administration, this dictum seems unduly broad. It may be premature as well, for no coherent "rationale of grievance arbitration" has yet been developed. If such a rationale is to be achieved, far more work …

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.

Labor Law - Arbitration - Restriction Of Judicial Intervention Into The Arbitration Process, James J. White

Michigan Law Review

Respondent company laid off a number of employees as a result of its decision to contract out maintenance work formerly done in the company shop. After the grievance procedure failed to resolve petitioner union's claim that this violated the contract provision against lockouts, and the company refused the union's request for arbitration, the union sought specific performance of the promise to arbitrate contained in the collective bargaining contract. In dismissing the plea, the district court found that contracting out work was solely a function of management and therefore not arbitrable because the contract specifically excluded from arbitration "matters which are …

Labor Law - Arbitration - Determination Of The Question Of Arbitrability Under Section 301(A) Of Labor-Manabement Relations Act, Cecil R. Mellin

Michigan Law Review

Plaintiff- union brought an action under section 301 (a) of the Labor-Management Relations Act to compel arbitration of a grievance over the subcontracting of work by defendant-employer. The collective bargaining agreement provided that questions as to the proper interpretation or application of any of the provisions of the agreement would be submitted to arbitration and that all matters involving exclusively managerial functions were excluded from arbitration. The trial court held the grievance not arbitrable. On appeal, held, reversed. An implied covenant of good faith and fair dealings and the fact that some private arbitrators have held that the conventional …

Labor Law - Arbitration - Power Of Arbitrator To Enjoin Union From Continuing Slowdown, Lawrence M. Kelly

Michigan Law Review

An arbitrator, acting under a collective bargaining agreement which called for a "speedy arbitration" procedure, issued an award enjoining the unions from continuing a slowdown in violation of that clause of the agreement forbidding strikes, lockouts, and slowdowns. A Supreme Court order granted the employers' motion to confirm the award and overruled the unions' cross motion to vacate. The unions claimed that the arbitrator, in issuing the injunction, had exceeded the powers granted him under the agreement and had acted contrary to section 876a of the Civil Practice Act (the New York Anti-Injunction Act). The Appellate Division affirmed the order …

The Legal Nature Of Collective Bargaining Agreements, Archibald Cox

Michigan Law Review

One reflecting upon the legal nature of a collective bargaining agreement can hardly avoid beginning with the thought that the institution has flourished outside of the courts and administrative agencies and often in the face of legal interference. The law had fallen into disrepute in the world of labor relations because it failed to meet the needs of men. Collective bargaining agreements were negotiated and administered without regard to conventional legal sanctions. Grievance procedures and arbitration evolved into an intricate and highly organized, private judicature. Many experienced and perceptive observers argued that the conventional sanctions for commercial contracts should not …

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.

Labor Law-Legality Of Employer's Use Of Lockout, Norman M. Spindelman S.Ed., William K. Davenport S.Ed

Michigan Law Review

One of the employer's traditional weapons against the economic power of unions is the lockout. Since the central economic element involved in strikebreaking is that the operation of the plant and equipment is as important to labor as labor is to the operation of the plant and equipment, the lockout is one of the simplest methods of strikebreaking or of resisting union demands. This is so because in the endurance contest which ensues the economic resources of the employer are likely to be greater than those of the employee. Just as there are restrictions on union use of the strike, …

The Privy Council And Private Law In The Tudor And Stuart Period: Ii, John P. Dawson

Michigan Law Review

In a previous instalment an attempt was made to describe the main subjects of private litigation dealt with by the English Privy Council under the Tudors and early Stuarts. It was suggested that the subjects were most heterogeneous and that the total volume of such litigation was large. In the present instalment will be discussed, first, the methods used to reduce the volume of private litigation by direct and indirect means; then the powers of coercion possessed by the Privy Council; and finally, its relations to the ordinary courts.

Recent Books, Michigan Law Review

Michigan Law Review

This department undertakes to note or review briefly current books on law and matters closely related thereto.