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Preserving Collective-Action Rights in Employment Arbitration

Arbitration has great promise as a vehicle for efficiently and cost-effectively resolving work-related disputes on the merits—and doing so in a way that is more likely than litigation to satisfy all concerned parties. To preserve this promise, judges and policymakers must be vigilant in monitoring the use of arbitration by nonunion employers, lest it become a tool for exacerbating the imbalances of power between workers and management, and, thus, ultimately discredited. Of particular concern are attempts by employers to use predispute arbitration agreements as a means of class-action avoidance. Indeed, the prospect of limiting exposure to large-scale employment litigation through arbitration has given companies a substantial incentive to require their workers, as a condition of employment, to waive the right to sue in court and instead submit claims to binding arbitration.

The proliferation of employer-promulgated arbitration pacts that explicitly or implicitly prohibit multiparty actions likely will bring to the fore a question which courts have yet to confront directly: whether such an agreement, entered into as a precondition of employment, constitutes an unfair labor practice by interfering with the rights of employees to engage in “concerted activities for the purpose . . . of mutual aid or protection,” as guaranteed by Section 7 of the National Labor Relations Act.

Precedent indicates that many employment arbitration agreements are, in fact, vulnerable to unfair-labor-practice charges to the extent that they require employees to surrender their rights to collaborate in dispute resolution as a condition of employment. This Note suggests, however, that employers can preserve a form of mandatory individual arbitration without undermining the policies behind Section 7, offering a solution through which employers and employees can retain the practical benefits of arbitration within a system that allows employees to work in conjunction with one another to resolve claims of mutual concern. Specifically, it advocates that employers embrace transparency in their arbitration systems by instituting procedures that provide for public disclosure of outcomes and the right of participants to present relevant prior awards as persuasive precedent.

Such an approach—which this Note terms “open arbitration”—not only would allow courts to reconcile the “liberal federal policy favoring arbitration agreements” with the objectives of Section 7, but it also would mute many of the criticisms that have led courts to invalidate mandatory ADR agreements.

(Over)Valuing Uniformity

Providing for the uniform interpretation of federal law has long been viewed as a primary goal of the federal court system, and the claimed need for uniformity has shaped the structure of the courts and the scope of their jurisdiction. For example, uniformity has been cited as grounds for broad federal question jurisdiction and for the creation of specialized federal courts. Most visibly, harmonizing interpretation of federal law has become an essential factor in the Supreme Court’s selection of cases for review; 70% of the Supreme Court’s docket is devoted to resolving disagreements over the meaning of federal law. 

This Article questions whether uniformity in and of itself has inherent value, and whether the benefits of eliminating moderate disuniformity in the interpretation of ambiguous federal statutes are worth the costs. Proponents of uniformity claim that divergent interpretations of federal law are unfair to litigants, undermine the legitimacy of federal law, create intolerable conflicts for interstate actors, and lead to forum shopping. The Article explores each argument in turn and finds none to be a compelling reason for federal courts to devote considerable time and resources to maintaining uniformity. For instance, litigants have no basis to claim they were treated unfairly when courts reach different conclusions about the meaning of an ambiguous statute as long as each interpretation is reasonable. Nor is the legitimacy of federal law called into question when judges disagree about the best way to fill gaps or resolve vague provisions in the statutes they construe. Indeed, the doctrine of Chevron deference recognizes, and even promotes, the possibility that ambiguous federal statutes can be construed in a variety of ways. Interstate actors are already required to comply with the varied legal regimes of the fifty states, so adjusting their conduct to accommodate divergent interpretations of federal law is not significantly more disruptive. And if forum shopping is truly a problem (which is questionable), a better solution might be to tighten venue rules rather than expend significant federal judicial resources on standardizing federal law. 

Furthermore, even in the relatively rare cases when uniformity is essential, the federal courts are not the ideal institution to provide it. Congress is responsible for enacting ambiguous laws that produce conflicting judicial interpretations, and Congress is better situated to determine when the benefits of uniformity outweigh the costs of achieving it. Accordingly, this Article contends that courts should avoid expending resources to standardize federal law, and should instead rely on Congress to legislate uniformity when needed.

Prosecuting Batterers After Crawford

Professor Tom Lininger examines the impact of Crawford v. Washington on prosecutions of domestic violence. Prior to Crawford, these prosecutions relied heavily on hearsay, in part because accusers often recant or refuse to testify. Crawford has raised significant doubts about the admissibility of such evidence unless the government provides the accused with an opportunity for cross-examination. 

Professor Lininger surveyed 64 district attorneys’ offices in California, Oregon and Washington to determine the effect of Crawford on domestic violence cases. The counties involved in this survey make up approximately 90 percent of the population in the three states. Nearly two-thirds of the respondents indicated that the Crawford decision significantly impeded prosecutions of domestic violence in their jurisdictions. Moreover, 76 percent of respondents indicated that after Crawford, their offices are more likely to drop domestic violence charges when the accusers recant or refuse to cooperate.

The article suggests legislative reforms that would adapt the states’ evidence codes to the new constitutional requirements of Crawford in order to facilitate effective prosecutions of domestic violence. One category of proposals would maximize opportunities for pretrial cross-examination of accusers. Another set of proposals would expand certain statutory hearsay exceptions. Finally, the author suggests miscellaneous reforms that would better protect battered women before trial, would help juries to understand the psychology of recanting accusers, and would diversify the charges brought by prosecutors so that hearsay statements are not indispensable. 

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