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2006

Dispute Resolution and Arbitration

Employment Practice

Articles 1 - 7 of 7

Full-Text Articles in Law

A Complete Property Right Amendment, John H. Ryskamp Oct 2006

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.


The Story Of Nlrb V. Mackay Radio & Telegraph Co.: The High Cost Of Solidarity, Thomas C. Kohler, Julius G. Getman Aug 2006

The Story Of Nlrb V. Mackay Radio & Telegraph Co.: The High Cost Of Solidarity, Thomas C. Kohler, Julius G. Getman

Boston College Law School Faculty Papers

In 1938, in NLRB v. Mackay Radio & Telegraph Co., the Supreme Court offered one of its earliest interpretations of the National Labor Relations Act. Although the Court’s holding provided that employers may not discriminate against employees for their union activity when the strike is over and workers are reinstated, dicta in the opinion also provided that under the NLRA employers enjoy an unrestricted right to replace strikers. In the 70 years since the Court’s announcement, scholars remain baffled by the contradictions presented by the “Mackay doctrine”—a rule that forbids employers from discharging legally protected strikers while, at the same …


As The Enterprise Wheel Turns: New Evidence On The Finality Of Labor Arbitration Awards, Michael H. Leroy Jul 2006

As The Enterprise Wheel Turns: New Evidence On The Finality Of Labor Arbitration Awards, Michael H. Leroy

ExpressO

Our study examines 281 federal court decisions from April 2001- May 2006 that ruled on challenges to labor arbitration awards. These award appeals are regulated by the Supreme Court’s Enterprise Wheel decision. District courts confirmed 77.6% of challenged awards, an increase of about 7 percentage points compared to our earlier studies of litigated awards from 1960 - 2001. The result was very similar for appellate cases— a confirmation rate of 76.3%, and nearly the same gain in percentage points.

These results clearly suggest that the Supreme Court’s rebuke of lower courts in Eastern Associated Coal Corp. (2000) and Garvey (2001) …


Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp Jun 2006

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.


The New Judicial Hostility To Arbitration: Unconscionability And Agreements To Arbitrate, Steven J. Burton May 2006

The New Judicial Hostility To Arbitration: Unconscionability And Agreements To Arbitrate, Steven J. Burton

ExpressO

Many, many contract disputes are now being settled by arbitration instead of litigation. The United States Supreme Court strongly favors the enforcement of agreements to arbitrate that fall within the Federal Arbitration Act. This Article shows that many lower courts, however, are using the contract unconscionability doctrine to refuse enforcement of agreements to arbitrate. It argues (1) that many such lower court decisions should be pre-empted by the Federal Arbitration Act, and (2) that lower courts should give due weight to the federal policy favoring arbitration when deciding whether to enforce an agreement to arbitrate.


Final Offer Arbitration In The New Era Of Major League Baseball, Spencer B. Gordon May 2006

Final Offer Arbitration In The New Era Of Major League Baseball, Spencer B. Gordon

ExpressO

This article provides a comprehensive analysis of the economic, athletic, and social impact of final offer salary arbitration in Major League Baseball (“MLB”). The article delves into the motivations, fluctuations, and evolution of the player-owner relationship and free agency. The commentary then focuses on the distinguishing features and intricacies of final offer arbitration. Although salary arbitration in the context of Major League Baseball is a topic oft discussed in the law review setting, the analysis rarely reaches the level exhibited in this article. Moreover, most articles on the subject were written between 1996 and 2000 when the 1994 players’ strike …


Assigning The Burden Of Proof In Contractual Jury Waiver Challenges: How Valuable Is Your Right To A Jury Trial?, Chester S. Chuang Mar 2006

Assigning The Burden Of Proof In Contractual Jury Waiver Challenges: How Valuable Is Your Right To A Jury Trial?, Chester S. Chuang

ExpressO

Employers have long used arbitration agreements to manage the risk associated with the resolution of employment disputes. But as dissatisfaction with arbitration increases, employers are fundamentally changing their approach to dispute resolution by incorporating jury waivers into their employment agreements as an alternative. These jury waivers are an attractive compromise between arbitration and jury trials because they offer the full procedural protections of the public judicial system at a considerably lower cost than a comparable jury trial. Some courts have invalidated such jury waivers, however, making the enforcement of such waivers uncertain. In order for pre-dispute jury waivers to be …