Dispute Resolution and Arbitration Commons^™

A Fighting Chance: The Proposed Servicemembers Access To Justice Act & Its Potential Effects On Binding Arbitration Agreements, Sean M. Hardy

Pepperdine Dispute Resolution Law Journal

In August 2008 a bill was introduced in the United States Senate that clearly states Uniformed Services Employment and Reemployment Rights of 1994 (USERRA) claims supersede any preexisting arbitration clauses in employment agreements. This bill, known as the Servicemembers Access to Justice Act (SAJA), would restore full access to the federal court system for USERRA plaintiffs. This paper examines the SAJA and its potential effects on the USERRA. It begins with a survey of the history behind the passage of the USERRA, as well as the FAA. Next, it describes the two federal circuit court decisions that have led to …

Employees Losing Power, Losing Jobs: Making The Case For Mediating Power In The Era Of Buy-Ins And Bailouts, Lovalerie Mullins

Pepperdine Dispute Resolution Law Journal

This article proposes that dispute in the workplace is the best illustration of the loss of equanimity boundaryless employees experience in their work environment, and further, that dispute systems design necessitates a power neutralizing approach for mediating struggles caused by power disparity present in today's private employment relationships. To that end, my goal is to provide an employee-centered perspective of self-regulated employment policy in America, and to demonstrate the degree of conflict (and eventual disputation) such policy creates for boundaryless workforces. Ultimately, I make the case for an evolved dispute resolution process more able to manage power disparity in modem …

Conference Bibliography: Democracy And The Workplace, Wiener-Rogers Law Library, University Of Nevada, Las Vegas -- William S. Boyd School Of Law

Lectures & Talks

A selected bibliography was prepared in connection with the Saltman Center Labor Law Symposium 2012: Democracy and the Workplace held at the William S. Boyd School of Law, University of Nevada, Las Vegas, on February 23-25, 2012.

Class-Less? An Analysis Of The California Supreme Court's Denial Of Employers' Right To Use Class Arbitration Waivers In Employment Agreements In Gentry V. Superior Court, Michael B. Cooper

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

The Arbitration Fairness Act: It Need Not And Should Not Be An All Or Nothing Proposition, Martin H. Malin

Indiana Law Journal

Labor and Employment Law Under the Obama Administration: A Time for Hope and Change? Symposium held November 12-13, 2010, Indiana University Maurer School of Law, Bloomington, Indiana.

Employment Arbitration 2011: A Realist View, Laura J. Cooper

Indiana Law Journal

Labor and Employment Law Under the Obama Administration: A Time for Hope and Change? Symposium held November 12-13, 2010, Indiana University Maurer School of Law, Bloomington, Indiana.

Claim-Suppressing Arbitration: The New Rules, David S. Schwartz

Indiana Law Journal

Binding, pre-dispute arbitration imposed on the weaker party in an adhesion contract—so-called “mandatory arbitration”—should be recognized for what it truly is: claim-suppressing arbitration. Arguments that such arbitration processes promote access to dispute resolution have been refuted and should not continue to be made without credible empirical support. Drafters of such arbitration clauses are motivated to reduce their liability exposure and, in particular, to eliminate class claims against themselves. Furthermore, claim-suppressing arbitration violates two fundamental principles of due process: it allows one party to the dispute to make the disputing rules; and it gives the adjudicative role to a decision maker …

Reading Ricci And Pyett To Provide Racial Justice Through Union Arbitration, Michael Z. Green

Indiana Law Journal

Labor and Employment Law Under the Obama Administration: A Time for Hope and Change? Symposium held November 12-13, 2010, Indiana University Maurer School of Law, Bloomington, Indiana

Overcoming Our Global Disability In The Workforce: Mediating The Dream, Elayne E. Greenberg

Faculty Publications

The unparalleled global support for the 2008 United Nations Convention on the Rights of Persons with Disabilities ("CRPD") highlights the global schism between the public extolling of human rights for individuals with disabilities and the private castigating of such individuals in their daily lives and in the workforce. The CRPD explicitly mandates that work is a right accorded to individuals with disabilities, and global employers are now being challenged to implement that right. Yet, in order to ensure meaningful, universal compliance with its directives, the CRPD imposes affirmative duties on Supporting States to develop a customized, workable plan that effectively …

The Moral Dimension Of Employment Dispute Resolution, Theodore J. St. Antoine

Articles

Dispute resolution may be viewed from the perspective of economics or negotiation or contract law or game theory or even military strategy. In this Article, I should like to consider employment dispute resolution in particular from the perspective of morality. I do not necessarily mean "morality" in any religious sense. By "morality" here I mean a concern about the inherent dignity and worth of every human being and the way each one should be treated by society. Some persons who best exemplify that attitude would style themselves secular humanists. Nonetheless, over the centuries religions across the globe have played a …

Tribal Rituals Of The Mdl: A Comment On Williams, Lee, And Borden, Repeat Players In Multidistrict Litigation, Myriam E. Gilles

Articles

No abstract provided.

Building A New Bridge Over Troubled Waters: Lessons Learned From Canadian And U.S. Arbitration Of Human Rights And Discrimination Employment Claims, Shelley Mcgill, Ann Marie Tracey

Cardozo Journal of International and Comparative Law

The article critiques the U.S. Supreme Court's decision in 14 Penn Plaza LLC v. Pyett, which upheld the enforceability of collective bargaining agreements that waive individuals' rights to pursue statutory discrimination claims in court, favoring mandatory arbitration. The authors argue that this ruling undermines access to justice and the societal goals of anti-discrimination laws, advocating for legislative reforms to preserve judicial forums. They contrast this with the Canadian system, which allows concurrent jurisdiction between labor arbitrators and human rights tribunals, emphasizing transparency, accountability, and public policy goals. The authors propose that arbitration should not preclude access to judicial or …

Ducks And Decoys: Revisiting The Exit-Voice-Loyalty Framework In Assessing The Impact Of A Workplace Dispute Resolution System, Zev J. Eigen, Adam Seth Litwin

Faculty Working Papers

Until now, empirical research has been unable to reliably identify the impact of organizational dispute resolution systems (DRSs) on the workforce at large, in part because of the dearth of data tracking employee perceptions pre- and post- implementation. This study begins to fill this major gap by exploiting survey data from a single, geographically-expansive, US firm with well over 100,000 employees in over a thousand locations. The research design allows us to examine employment relations and human resource (HR) measures, namely, perceptions of justice, organizational commitment, and perceived legal compliance, in the same locations before and after the implementation of …

A Moral Contractual Approach To Labor Law Reform: A Template For Using Ethical Principles To Regulate Behavior Where Law Failed To Do So Effectively, Zev J. Eigen, David S. Sherwyn

Faculty Working Papers

If laws cease to work as they should or as intended, legislators and scholars propose new laws to replace or amend them. This paper posits an alternative—offering regulated parties the opportunity to contractually bind themselves to behave ethically. The perfect test-case for this proposal is labor law, because (1) labor law has not been amended for decades, (2) proposals to amend it have failed for political reasons, and are focused on union election win rates, and less on the election process itself, (3) it is an area of law already statutorily regulating parties' reciprocal contractual obligations, and (4) moral means …

A Delayed Penalty: The Implications Of The Ilya Kovalchuk Arbitration Decision On The National Hockey League, 45 J. Marshall L. Rev. 145 (2011), Morgan Marcus

UIC Law Review

No abstract provided.

A Solution To Holdouts In The National Football League: How Salary Arbitration Can Limit A Growing Problem, Roger Quiles

Cardozo Journal of Conflict Resolution

This Note will explore the intricacies of Major League Baseball's salary arbitration system, as established in the league's CBA with the MLB Players' Association (hereinafter, "MLBPA"), in order to create a suitable and similar forum for the NFL. The MLB salary arbitration model is not perfectly transposed to the NFL, but can be slightly modified to reflect the differences between the sports. The primary difference is that the NFL establishes a salary cap that a team's payroll may not exceed, whereas MLB teams can carry as big of a payroll as they want. Though the salary cap raises several questions …

Salary Caps In Professional Sports: Closing The Kovalchuk Loophole In National Hockey League Player Contracts, Simon Bernstein

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux

Publications

No abstract provided.

Trick Or Treat: The Ethics Of Mediator Manipulation, Jim Coben, Lela P. Love

Articles

Much of what good mediators do can be characterized as “helpful interventions” that assist the parties towards legitimate goals such as a better understanding, a platform for developing options, and (where the parties choose) an agreement or settlement. However, all such “helpful interventions” are inevitably "manipulative," in the sense that the mediator is, often unilaterally, making “moves” with profound impact on the parties’ bargaining. To evaluate the ethics of any individual move, the authors propose asking two questions: 1) does the move further or help a legitimate party or process goal that advances party self-determination in decision-making; and 2) is …

The Evolving Schizophrenic Nature Of Labor Arbitration, Martin H. Malin

All Faculty Scholarship

No abstract provided.

Fallout From 14 Penn Plaza V. Pyett: Fractured Arbitration Systems In The Unionized Workplace, Ann C. Hodges

Law Faculty Publications

First, the article will review the history of arbitration of statutory employment claims, including the Pyett decision. Second, the article will look at the history and causes of legalism in arbitration. Then the article will consider the probable responses of employers and unions to Pyett. While predictions are necessarily speculative, it is likely that some unionized employers will seek to require employees to arbitrate statutory claims, perhaps in higher percentages than in the nonunion workplace. While unions may, and perhaps should, resist, many future collective bargaining agreements (CBAs) may contain such provisions. The article then discusses the alternative dispute resolution …

Mandatory Employment Arbitration: Keeping It Fair, Keeping It Lawful, Theodore J. St. Antoine

Articles

President Obama's election and the Democrats' takeover of Congress, including what was their theoretically filibuster-proof majority in the Senate, have encouraged organized labor and other traditional Democratic supporters to make a vigorous move for some long-desired legislation. Most attention has focused on the Employee Free Choice Act (EFCA). As initially proposed, the EFCA would enable unions to get bargaining rights through signed authorization cards rather than a secret-ballot election, and would provide for the arbitration of first-contract terms if negotiations fail to produce an agreement after four months. The EFCA would apply to the potentially organizable private-sector working population; at …

Arbitration Awards In An Environment Of Compulsory Unionization: Is The High Degree Of Deference Warranted?, Nephi Hardman

BYU Law Review

No abstract provided.

Re Farmers Co-Operative Dairy Ltd And Unifor, Local 40n (Giles), Innis Christie

Innis Christie Collection

The Grievor was discharged due to theft, fraud and breach of trust. The Union believes the discharge was unjust since an addiction to gambling suggests accommodation would be appropriate. The Grievor seeks reinstatement with full compensation for lost wages and benefits.

The grievance fails. The theft was premeditated and repeated. There is no evidence that the behaviour would not be repeated.

Legislative Updates , Rene Carballo

The Modern American

No abstract provided.

When The Music Stops, Why Not Require Certain Title Vii Plaintiffs To Find A Chair On Which To Rest Their Complaint?, 42 J. Marshall L. Rev. 505 (2009), Catherine R. Caifano

UIC Law Review

No abstract provided.

Is The Door Open Or Closed? Evaluating The Future Of The Federal Medical Peer-Review Privilege, 42 J. Marshall L. Rev. 561 (2009), Ghazal Sharifi

UIC Law Review

No abstract provided.

A Step Too Far: Pyett And The Compelled Arbitration Of Statutory Claims Under Union-Controlled Labor Contract Procedures, Mark Berger

Faculty Works

Over time, the Federal Courts have become increasingly supportive of and deferential to arbitration and mandatory arbitration clauses. Because arbitration under Collective Bargaining Agreements (CBAs) were governed by different but analogous statutes, however, there were always rules carved out for CBA-related arbitration, specifically with regard to claims of discrimination based on statutes external to the CBA. However, as the mandatory arbitration of statutory claims became accepted under non-CBA agreements, the reasoning of this rule was undermined. In 14 Penn Plaza v. Pyett, the Supreme Court abandoned this separation and adopted a rule that CBAs could mandate that statutory claims be …

Is It The "Real Thing"? How Coke's One-Way Binding Arbitration May Bridge The Divide Between Litigation And Arbitration, Suzette M. Malveaux

Publications

Although the scholarly literature is replete with discussion of the pros and cons of mandatory arbitration and civil litigation, relative to one another, there has been no examination of one-way binding arbitration as a potential bridge between these procedural poles. The goal of this article is to fill that void. One-way binding arbitration requires an employee to use arbitration to resolve workplace disputes, but also gives the employee, but not the employer, the option of rejecting the arbitrator’s decision. In the event the employee is not satisfied with the outcome of arbitration, she can still pursue her claim in court. …

Re Canada Post Corp And Cupw (Paris), Innis Christie

Innis Christie Collection

The Grievor was initially discharged for being absent without leave. After the first arbitration hearing the Grievor was reinstated with conditions; the same conditions were awarded after a second hearing. The Grievor has now been terminated for breach of one of those conditions - the need to seek immediate medical attention when absent from work due to illness. Although the Grievor became ill Sunday evening, the Union believed that by seeking medical attention on Monday the conditions of the previous Consent Award had been met.