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Full-Text Articles in Law
National Labor Relations Board V. Murphy Oil Usa, Inc.: A Test Of Might, Elizabeth Storey
National Labor Relations Board V. Murphy Oil Usa, Inc.: A Test Of Might, Elizabeth Storey
Duke Journal of Constitutional Law & Public Policy Sidebar
National Labor Relations Board v. Murphy Oil USA pits two co-equal federal statutes head-to-head. The Federal Arbitration Act mandates that all arbitration clauses be enforced. The National Labor Relations Act grants employees the right to act collectively to bring claims against employers. The Supreme Court must decide whether arbitration clauses in employment contracts, which require employees to arbitrate work-related disputes on an individual basis, contravene the interests of the NLRA. This commentary argues that the Supreme Court should recognize how these arbitration clauses undermine and subvert the protections of the NLRA by disallowing employees to act collectively. By invoking the …
Arbitration Revisited: Preemption Of California’S Unconscionability Doctrine After Concepcion, David Friedman
Arbitration Revisited: Preemption Of California’S Unconscionability Doctrine After Concepcion, David Friedman
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary looks at a Supreme Court case, Imburgia v. DIRECTV, in which the Court faces the question of whether an arbitration agreement, made pursuant to the Federal Arbitration Act, preempts state unconscionability doctrine which would render that agreement unenforceable. The Author argues that holding that federal law implementing a policy favoring arbitration fully preempts state law doctrines from preventing the enforcement of arbitration agreements.
Experimenting With Alternative Dispute Resolution As A Means For Peaceful Resolution Of Interest Labor Disputes In Public Healthcare—A Case Study , Mordehai (Moti) Mironi
Experimenting With Alternative Dispute Resolution As A Means For Peaceful Resolution Of Interest Labor Disputes In Public Healthcare—A Case Study , Mordehai (Moti) Mironi
Law and Contemporary Problems
Mironi examines the dispute between the Israel Medical Association and the Israeli government. Drawing upon in-depth interviews with the arbitrators and the parties' representatives and counsels, as well as upon the extensive litigation and transcripts of the arbitration proceedings and award, the process-oriented aspects of the arbitration are emphasized. The disputes between the IMA and the government have never been only about money, but also have been about voice, the future status of public healthcare, and the doctors' professional quality of life.
Odious, Illegitimate, Illegal, Or Legal Debts—What Difference Does It Make For International Chapter 9 Debt Arbitration?, Kunibert Raffer
Odious, Illegitimate, Illegal, Or Legal Debts—What Difference Does It Make For International Chapter 9 Debt Arbitration?, Kunibert Raffer
Law and Contemporary Problems
Once upon a time, sovereign debts were just that-debts or the entitlement to be repaid fully, including interest. During the 1970s it was thought unnecessary to make any distinctions between debts, based on the assumption that sovereigns might possibly become illiquid, but could never become insolvent. Commercial banks disregarded the most elementary rules of prudent banking, including their duty of due diligence as lenders, laboring on the assumption that whatever flowed into developing countries would eventually flow back with fees and interest. Here, Raffer discusses the international dchapter nine debt arbitration.
Using Arbitration To Eliminate Consumer Class Actions: Efficient Business Practice Or Unconscionable Abuse?, Jean R. Sternlight, Elizabeth J. Jensen
Using Arbitration To Eliminate Consumer Class Actions: Efficient Business Practice Or Unconscionable Abuse?, Jean R. Sternlight, Elizabeth J. Jensen
Law and Contemporary Problems
Companies are increasingly using arbitral class action prohibitions to insulate themselves from class action liability. These prohibitions are detrimental not only to potential class members but to the public at large in that they are preventing the law from being adequately enforced. In essence, by precluding class actions, companies are engaging in "do-it-yourself tort reform," freeing themselves from liability without having to convince legislatures to change the substantive law.
The Uncertain Future Of Mandatory Arbitration Of Statutory Claims In The Unionized Workplace, Erica F. Schohn
The Uncertain Future Of Mandatory Arbitration Of Statutory Claims In The Unionized Workplace, Erica F. Schohn
Law and Contemporary Problems
As arbitration processes have improved over the last ten years, the negative perception of mandatory arbitration provisions that apply to statutory claims has decreased. The case law reflects this change in perception, as courts how allow mandatory arbitration of statutory claims brought by nonunion employees. This article argues that the continued distinction between claims by union and nonunion employees lacks any meaningful justification--that is, that mandatory arbitration of statutory claims is as appropriate, if not more so, in the collective bargaining context as it is in the nonunionized workplace.
The Revocability Of Contract Provisions Controlling Resolution Of Future Disputes Between The Parties, Paul D. Carrington, Paul Y. Castle
The Revocability Of Contract Provisions Controlling Resolution Of Future Disputes Between The Parties, Paul D. Carrington, Paul Y. Castle
Law and Contemporary Problems
The Supreme Court has vastly expanded the applicability of arbitration legislation, making it applicable to many types of contracts to which the application of the revocability doctrine would make better sense. This article corrects the misunderstanding of the policies served by the common law rule and suggests the rule's revival for application to many of the contracts to which the Supreme Court has expanded the application of the Federal Arbitration Act.
Democracy And Dispute Resolution: The Problem Of Arbitration, Richard C. Reuben
Democracy And Dispute Resolution: The Problem Of Arbitration, Richard C. Reuben
Law and Contemporary Problems
This article seeks to bring the submerged issue of arbitration's relationship to democracy to the surface of the mandatory arbitration debate. Its goal is relatively modest: To recognize and articulate the relationship between democracy and arbitration as an issue worth considering, to analyze the democratic character of arbitration and to suggest some implications of this assessment.
Correcting Federalism Mistakes In Statutory Interpretation: The Supreme Court And The Federal Arbitration Act, David S. Schwartz
Correcting Federalism Mistakes In Statutory Interpretation: The Supreme Court And The Federal Arbitration Act, David S. Schwartz
Law and Contemporary Problems
The current judicial treatment of the Federal Arbitration Act is an embarrassment to a Supreme Court whose majority is supposed to be leading a federalism revival, if not a federalism revolution. In 1984, in Southland Corp. v. Keating, the Court held that the FAA is substantive federal law that preempts state laws regulating arbitration agreements. The Court thereby transformed a quaint, 60-year-old procedural statute into "a permanent, unauthorized eviction of state-court power to adjudicate a potentially large class of disputes," as well as an eviction of state lawmaking power over the traditional state domain of contract law. Even worse, Southland …
A Behavioral Analysis Of Private Judging, Christopher R. Drahozal
A Behavioral Analysis Of Private Judging, Christopher R. Drahozal
Law and Contemporary Problems
Businesses cite arbitration as a way to avoid aberrant jury verdicts, implicitly if not explicitly assuming that arbitrators make "better" decisions than juries. By contrast, consumer advocates criticize arbitration as a way for businesses to avoid paying damages to deserving claimants, effectively assuming that juries make better decisions than arbitrators. These conflicting perspectives pose an important question in the debate over predispute arbitration clauses in consumer contracts: How do decisions by arbitrators compare to decisions by juries?
The High Cost Of Mandatory Consumer Arbitration, Mark E. Budnitz
The High Cost Of Mandatory Consumer Arbitration, Mark E. Budnitz
Law and Contemporary Problems
This article critically examines a sampling of arbitration agreements and the rules of the major arbitration service providers and concludes that the cost of arbitration is often prohibitively high, either because consumers simply cannot afford the fees attendant to filing and prosecuting a claim or because the costs of bringing a claim outweigh the benefits of any potential remedies.
Control Over Dispute-System Design And Mandatory Commercial Arbitration, Lisa B. Bingham
Control Over Dispute-System Design And Mandatory Commercial Arbitration, Lisa B. Bingham
Law and Contemporary Problems
This article argues that mandatory arbitration is not itself the problem. The problem is instead that in some instances, one party to the dispute has exclusive control of the design of the dispute-resolution system. Consequently, research on mandatory arbitration should concentrate on who is structuring it, how they structure it, why this is so and how these choices affect dispute outcomes.
“Volunteering” To Arbitrate Through Predispute Arbitration Clauses: The Average Consumer’S Experience, Linda J. Demaine, Deborah R. Hensler
“Volunteering” To Arbitrate Through Predispute Arbitration Clauses: The Average Consumer’S Experience, Linda J. Demaine, Deborah R. Hensler
Law and Contemporary Problems
This article helps build the empirical foundation necessary for an informed debate regarding arbitration clauses in consumer contracts by providing preliminary insight into how businesses' use of these clauses affects consumers' ability to pursue their legal rights. To this end, the article reports the results of a study investigating, in a wide variety of consumer purchases, the frequency with which the average consumer encounters arbitration clauses, the key provisions of these clauses, and the implications of these clauses for consumers who subsequently have disputes with businesses they patronize.
Contracting With Tortfeasors: Mandatory Arbitration Clauses And Personal Injury Claims, Elizabeth G. Thornburg
Contracting With Tortfeasors: Mandatory Arbitration Clauses And Personal Injury Claims, Elizabeth G. Thornburg
Law and Contemporary Problems
This article examines some of the cases in which courts have enforced arbitration clauses in personal injury litigation and considers why courts have reached the outcomes they have. It evaluates the ways that arbitration can disturb the traditional values of procedural justice, contractual fairness and the enforcement of tort-based duties. It suggests changes in the law regarding mandatory arbitration of personal injury claims and explores the extent to which change is possible.
Arbitration Agreements In Health Care: Myths And Reality, Elizabeth Rolph, Erik Moller, John E. Rolph
Arbitration Agreements In Health Care: Myths And Reality, Elizabeth Rolph, Erik Moller, John E. Rolph
Law and Contemporary Problems
It is asserted that alternative dispute resolution methods, particularly mandatory binding arbitration agreements, have become the rule in health care delivery. A study was conducted to ascertain how widespread mandatory arbitration agreements between health plans and providers and their enrollees and patients really are, to assess how decisions regarding their use are made and to evaluate the prospects of their future use.
Toward A Theory Of “Just Cause” In Employee Discipline Cases, Roger I. Abrams, Dennis R. Nolan
Toward A Theory Of “Just Cause” In Employee Discipline Cases, Roger I. Abrams, Dennis R. Nolan
Duke Law Journal
Although almost every collective bargaining agreement permits the employer to discipline an employee for "just cause," the concept of just cause is not well understood. Rather than leading to fair and consistent resolutions of disciplinary disputes, the concept, as applied in arbitration proceedings, has led to inconsistent results that fail to serve the interests of either management or labor. This article develops a systematic theory of just cause in employee discipline cases by exploring the fundamental understanding of the employment relationship and the effect of the collective bargaining agreement on the fundamental understanding. It presents a model of just cause, …