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Horizons: Conversations About Future Directions in Dispute Resolution

Thursday, January 29, 2015
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Friday, January 30,  2015
8:30 AM – 4:00 PM | TBD

 

93 – Labor — General

ARTICLES

James R. Devine, Curt Flood and a Triumph of the Show Me Spirit, 77 Mo. L. Rev. 9 (2012).
This article discuses the history and impact of the Flood v. Kuhn decision, in which Justice Blackmun wrote an opinion upholding MLB’s ban on free agency.  The article focuses on the bravery and intuition of Curt Flood, the plaintiff the Flood decision.  Although the Court did not rule in his favor, litigation eventually led to arbitration that effectively eliminated the reserve clause, and allowed for free agency in major league professional baseball.
{44} ARBITRATION—GENERAL
{93} SUBJ MATTER: LABOR—GENERAL
 
Matthew Dimick, Labor Law, New Governance, and The Ghent System, 90 N.C. L. Rev. 319 (2012).
This article discusses a governance alternative for employers and unions known as the Ghent system. This appears to be a system that attempts to strengthen the working relationship between unions and employers and improve the bargaining between the two groups. It does have a focus on employer insurance and work place benefits, among other things.
{1} NEGOTIATION—GENERAL
{93} SUBJ MATTER: LABOR—GENERAL
{124} COMPARISONS: CROSS-CULTURAL

Zev J. Eigen, Nicholas F. Menillo, & David Sherwyn, Shifting the Paradigm of the Debate: A Proposal to Eliminate At-Will Employment and Implement a “Mandatory Arbitration Act”, 87 Ind. L.J. 271 (2012)
This article attempts to shift the debate surrounding the employment discrimination resolution system towards analysis of the current system and possible solutions to address issues with the system. The authors advocate replacing at-will employment with a statute that considers aspects of both arbitration and litigation in employment discrimination cases.
{44} ARBITRATION—GENERAL
{93} SUBJ MATTER: LABOR—GENERAL
{144} LEGISLATION
 
Eric Koplowitz, Note, I Didn’t Agree to Arbitrate That! – How Courts Determine If Employees’ Sexual Assault and Sexual Harassment Claims Fall Within the Scope of Broad Mandatory Arbitration Clauses, 13 Cardozo J. Conflict Resol. 565 (2012).
This note looks at how courts determine if sexual assault and sexual harassment claims by employees against their employer are within the scope of broad mandatory arbitration clauses. The court found that such claims were arbitrable because the broad arbitration clauses in the agreements extend to claims that touch matters within the employment context.
{44} ARBITRATION—GENERAL
{93} SUBJ MATTER: LABOR—GENERAL
{146} ORGANIZATION POLICIES & RULES
 
Rebecca Kruser, Note, Simulacra of Virtue: The Responsibility of Labor Arbitrators in Employee Drug Testing Grievances, 10 Geo. J.L. & Pub. Pol’y 239 (2012)
This author considers drug testing in unionized workplaces and the ways that arbitrators currently deal with employees using drugs. These arbitrator decisions can create vastly different outcomes for grievants. This author suggests a new method, based on respect for employee rationality, privacy rights, and liberty, for arbitrators to use as opposed to supporting the enforced virtue of the grievant for the supposed greater good of society.
{44} ARBITRATION—GENERAL
{93} SUBJ MATTER: LABOR—GENERAL
 
Martin H. Malin, The Arbitration Fairness Act: It Need Not and Should Not Be an All or Nothing Proposition, 87 Ind. L.J. 289 (2012)
This article addresses the Arbitration Fairness Act and its potential effect on pre-dispute arbitration agreements in the employment field. The author proposes alternative legislative reforms that he believes will better address issues with the agreements.
{44} ARBITRATION—GENERAL
{93} SUBJ MATTER: LABOR—GENERAL
{144} LEGISLATION
 
Jesse Molina, Comment, Broken Promises, Broken Process: Repairing the Mandatory Mediation Conciliation Process in Agricultural Labor Disputes, 21 San Joaquin Agric. L. Rev. 179 (2012)
The author argues that the Mandatory Mediation Conciliation (“MMC”), created by the California legislature to provide a more effective medium for collective bargaining in the agricultural industry, is an unfulfilled political promise and a broken process. This comment explores the development of the MMC, its weaknesses, and possible solutions that could repair the MMC and effectuate actual change in the industry.
{21} MEDIATION—GENERAL
{93} SUBJ MATTER: LABOR—GENERAL
 
Catherine Phillips, Note, The Lost Democratic Institution of Petitioning: Public Employee Collective Bargaining as a Constitutional Right, 10 First Amend. L. Rev. 652 (2012)
This note explores the idea that collective bargaining by public employees should receive heightened constitutional protection. The author addresses the history of public employee unions, the historical context of the constitutional right to petition, Supreme Court jurisprudence concerning the right to petition, and the argument for public sector collective bargaining receiving protection under the right to petition the government for redress of grievances clause of the Constitution.
{1} NEGOTIATION—GENERAL
{93} SUBJ MATTER: LABOR—GENERAL
Erick V. Posser, Brady v. NFL: How the Eighth Circuit “Saved” the 2011 NFL Season by Supporting Negotiation, not Litigation, 19 Vill. Sports & Ent. L.J. 603 (2012)
This article argues the Eighth Circuit’s decision in Brady v. NFL saved the 2011 NFL season by supporting negotiation. The article provides an overview of the relationship between the NFL and the NFL Players Association, the events leading up to the case, the court’s reasoning in the decision, the strengths and weaknesses of that decision, and the impact the case will have on future labor disputes in professional sports.
{1} NEGOTIATION—GENERAL
{93} SUBJ MATTER: LABOR—GENERAL
{107} SUBJ MATTER: SPORTS & ENTERTAINMENT

Craig Smith & Eric V. Moye, Outsourcing American Civil Justice: Mandatory Arbitration Clauses In Consumer And Employment Contracts, 44 Tex. Tech L. Rev. 281 (2012).
This article focuses on the possible issues with the increase in mandatory arbitration clauses in consumer and employment contracts. These clauses have a deleterious effects on the Seventh Amendment right to a trial by jury.
{44} ARBITRATION—GENERAL
{79} SUBJ MATTER: CONSUMER
{93} SUBJ MATTER: LABOR—GENERAL
 
David P. Zins, Note, Managing the Exit: Negotiating an Employment Termination, 17 Harv. Negot. L. Rev. 289 (2012).
This article depicts an employment termination as governed by a complex set of interrelated negotiations among diverse stakeholders. It suggests much of the challenge in these negotiations results from the fact that the various parties have already reached contradictory conclusions. The path toward a better outcome therefore must lead the parties away from their initial conclusions to the data that underlie them.  The article also considers how taking care with the difficult conversations inherent to this process can help make things better for everyone. The article concludes with a  discussion on the business importance of negotiating better termination outcomes.
{1} NEGOTIATION—GENERAL
{93} SUBJ MATTER: LABOR—GENERAL

BOOKS

Peter Kantor, CCMA: A Commentary on the Rules (3d ed. March 2012)
This book is a guide to the Rules of the Commission for Conciliation, Mediation, and Arbitration (CCMA) that reproduces the newly published Guidelines on Misconduct Arbitrations in terms of the labor relations and updates the useful law and commentary on the rules. The book also includes a useful Practical Guide for an Unfair Dismissal Claim in the CCMA. Each rule is fully reproduced and explained in non-technical language, making it an accessible guideline.
{60} ADR—GENERAL
{93} SUBJ MATTER: LABOR—GENERAL
{146} ORGANZATION POLICIES & RULES