Hastings Law Journal


An increasing number of employers have established arbitration systems for resolving disputes in the nonunionized workplace. The decline of collective bargaining and the rise of nonunion employment arbitration have fostered debate over whether arbitration can be imported from the unionized workplace. In Gilmer v. Interstate/Johnson Lane Corp., the Supreme Court held that a securities broker was bound to arbitrate his claim because of the Federal Arbitration Act's policy to enforce agreements to arbitrate. A broad reading of Gilmer would enforce agreements to arbitrate found in any employment contract with respect to any statutory or common-law cause of action.

Professors Main and Ladenson examine jurisprudential theory for answers to the concerns over the privatization of justice. The Article responds to concerns that the goals of public forums protecting basic legal values will be sacrificed in private forums, like arbitration, which may resolve disputes on the basis of nonlegal social mores. The Article argues that Legal Realism provides the best normative and descriptive theory of the adjudicatory role of labor arbitrators, but rejects its extension to employment arbitration. Instead, they conclude that H.L.A. Hart's version of Legal Positivism provides the best jurisprudential theory for analyzing the personal constraints on arbitrators. Professors Main and Ladenson conclude with an approach to judicial review that preserves the efficiency gains of employment arbitration without sacrificing the public justice goals of statutory and common-law regulation of the employment relationship.

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