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Mandatory Predispute Consumer Arbitration, Structural Bias, And Incentivizing Procedural Safeguards, Nancy A. Welsh
Mandatory Predispute Consumer Arbitration, Structural Bias, And Incentivizing Procedural Safeguards, Nancy A. Welsh
Faculty Scholarship
Within the past several decades, there has been an explosion in the creation, institutionalization and use of “alternative” dispute resolution procedures. Mandatory predispute arbitration has generated the most controversy because it appears beset with structural bias. The recent cases of AT&T Mobility LLC v. Concepcion and Compucredit Corp. v. Greenwood have raised additional concerns as the Supreme Court has announced that corporations can force consumers to arbitrate their private and statutory claims and give up their rights to pursue class relief. This Article begins by arguing that the Supreme Court’s enthusiastic embrace of mandatory predispute arbitration should be understood primarily …
Judicial Control Of The National Labor Relations Board's Lawmaking In The Age Of Chevron And Brand X, Michael C. Harper
Judicial Control Of The National Labor Relations Board's Lawmaking In The Age Of Chevron And Brand X, Michael C. Harper
Faculty Scholarship
This article analyzes and applies to Labor Board decision making the Court’s oft-cited 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council. The article argues that judicial review of Board decision making under Chevron, though limited, can still be sufficiently meaningful to control excessive shifts in Board lawmaking criticized by many commentators. The article explains why recent Supreme Court decisions reject any distinction between two theoretically distinct forms of agency discretionary lawmaking – (1) lawmaking through construction of the direct force of an ambiguous statute: and (2) lawmaking through the elaboration of law beyond that which is embodied in …
The Case For Limiting Judicial Review Of Labor Board Certification Decisions, Michael C. Harper
The Case For Limiting Judicial Review Of Labor Board Certification Decisions, Michael C. Harper
Faculty Scholarship
Part I of this Article explains in more technical detail the effects of the present system of judicial review of Board certification decisions and how that system developed. Part II argues that this review should be sharply curtailed, suggesting that unless a court is able to rule that the Board has rendered a certification decision for an improper motive, it should reconsider that decision only to the extent it involves a constitutional issue, a narrow jurisdictional issue, or one of a few bounded technical issues. Such a curtailment of review should be embraced by all who remain sympathetic to the …