Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 13 of 13
Full-Text Articles in Law
The Economics Of Class Action Waivers, Albert H. Choi, Kathryn E. Spier
The Economics Of Class Action Waivers, Albert H. Choi, Kathryn E. Spier
Articles
Many firms require consumers, employees, and suppliers to sign class action waivers as a condition of doing business with the firm, and the U.S. Supreme Court has endorsed companies’ ability to block class actions through mandatory individual arbitration clauses. Are class action waivers serving the interests of society or are they facilitating socially harmful business practices? This paper synthesizes and extends the existing law and economics literature by analyzing the firms’ incentive to impose class action waivers. While in many settings the firms’ incentive to block class actions may be aligned with maximizing social welfare, in many other settings it …
Labor And Employment Arbitration Today: Mid-Life Crisis Or New Golden Age?, Theodore J. St. Antonie
Labor And Employment Arbitration Today: Mid-Life Crisis Or New Golden Age?, Theodore J. St. Antonie
Articles
The major developments in employer-employee arbitration currently do not involve labor arbitration, that is, arbitration between employers and unions. The focus is on employment arbitration, arbitration between employers and individual employees. Beginning around 1980, nearly all the states judicially modified the standard American doctrine of employment-at-will whereby, absent a statutory or contractual prohibition, an employer could fire an employee "for good cause, for no cause, or even for cause morally wrong." Under the new regime, grounded in expansive contract and public policy theories, wrongfully discharged employees often reaped bonanzas in court suits, with California jury awards averaging around $425,000." Many …
Mandatory Arbitration: Why It's Better Than It Looks, Theodore J. St. Antoine
Mandatory Arbitration: Why It's Better Than It Looks, Theodore J. St. Antoine
Articles
"Mandatory arbitration" as used here means that employees must agree as a condition of employment to arbitrate all legal disputes with their employer, including statutory claims, rather than take them to court. The Supreme Court has upheld the validity of such agreements on the grounds that they merely provide for a change of forum and not a loss of substantive rights. Opponents contend this wrongfully deprives employees of the right to a jury trial and other statutory procedural benefits. Various empirical studies indicate, however, that employees similarly situated do about as well in arbitration as in court actions, or even …
David E. Feller: The Happy Warrior, Theodore J. St. Antoine
David E. Feller: The Happy Warrior, Theodore J. St. Antoine
Articles
Dave Feller and I first became acquainted when we were both union lawyers in Washington, D.C. Dave was the ultimate happy warrior. He went joyous into combat, and years later he could recount, joyously, objectively, and without rancor toward old foes, the exact details of the many triumphs and the few defeats. A favorite story came from his Supreme Court clerkship. Dave was already seven years out of Harvard Law School, with experience in university teaching, Army intelligence, and the Justice Department, and he didn't hesitate to tell Chief Justice Vinson he should vote for certiorari in a case close …
Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine
Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine
Articles
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
The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine
Articles
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 …
Contract Reading' In Labor Arbitration, Theodore J. St. Antoine
Contract Reading' In Labor Arbitration, Theodore J. St. Antoine
Articles
A quarter century ago, I used the phrase "contract reader" to characterize the role an arbitrator plays in construing a collective bargaining agreement. This phrase has almost invariable been misunderstood to refer to reading or interpreting the contract. When I spoke of the "contract reader," it was in the context of judicial review of an award. My point was this: When a court has before it an arbitrator's award applying a collective bargaining agreement, it is as if the employer and the union had signed a stipulation stating: "What the arbitrator says this contract means is exactly what we meant …
Mandatory Arbitration Of Employee Discrimination Claims: Unmitigated Evil Or Blessing In Disguise?, Theodore J. St. Antoine
Mandatory Arbitration Of Employee Discrimination Claims: Unmitigated Evil Or Blessing In Disguise?, Theodore J. St. Antoine
Articles
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 …
Why Mandatory Arbitration May Benefit Workers, Theodore J. St. Antoine
Why Mandatory Arbitration May Benefit Workers, Theodore J. St. Antoine
Articles
Would employees-including union employees-be better off with mandatory arbitration, even of statutory employment claims? The answer to this important question should depend less on abstract notions about the importance of statutory claims and the sanctity of the right to a jury trial, and more on a pragmatic assessment of what is likely to be best for the great majority of workers. Employing this type of analysis, which would take into account an overworked, underfunded Equal Employment Opportunity Commission, backlogged court dockets and other practical problems, my view is that most employees might well be better off with mandatory arbitration, provided …
Divergent Strategies: Union Organizing And Alternative Dispute Resolution, Theodore J. St. Antoine
Divergent Strategies: Union Organizing And Alternative Dispute Resolution, Theodore J. St. Antoine
Articles
The Commission on the Future of Worker-Management Relations, the so-called "Dunlop Commission," is focusing on three principal subjects: (1) union organizing, (2) worker participation in management decision making, and (3) alternative dispute resolution (ADR). I am going to concentrate on the last, but first I would like to say a few words about union organizing. After all, unionization and collective bargaining - and for that matter, worker participation as well - can fairly be viewed as special forms of alternative dispute resolution.
Afterword To Chicago-Kent Law Review, Theodore J. St. Antoine
Afterword To Chicago-Kent Law Review, Theodore J. St. Antoine
Articles
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
Deferral To Arbitration And Use Of External Law In Arbitration, Theodore J. St. Antoine
Articles
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.
Judicial Review Of Labor Arbitration Awards: A Second Look At Enterprise Wheel And Its Progeny, Theodore J. St. Antoine
Judicial Review Of Labor Arbitration Awards: A Second Look At Enterprise Wheel And Its Progeny, Theodore J. St. Antoine
Articles
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 …