mandatory arbitration

  • December 10, 2015

    By Jim Thompson

    Joseph Blocher, co-faculty advisor to the Duke Law ACS Student Chapter, writes in The New York Times that implementing gun laws at the local level of government may provide an effective way forward in the broader debate about gun rights and regulation.

    At The Atlantic, Gillian Thomas criticizes a loophole in Title VII of the 1964 Civil Rights Act that allows employers to restrict a job to men only or women only if they can reasonably prove that only one sex can effectively carry the duties of that profession.

    At Salon, Amanda Barcotte blasts Abigail Fisher for her race-baiting Supreme Court case that seeks to bolster subpar white university applicants and avenge a personal grievance from almost a decade ago.

    At the Global Legal Post, ACS Board of Directors member Reuben Guttman reviews Spotlight, a film about the use of private forums and sealed proceedings to resolve matters of potential public importance, and comments on the growing prevalence of mandatory arbitration clauses in the American legal system.

    Public Justice’s Arthur Bryant speaks with CNBC about a longtime defect in a popular firearm. Public Justice’s legal action against the Remington Arms Company has forced the unsealing of voluminous documents that reveal the company has known for years that a defect in its model 700 rifle causes it to fire without the trigger being pulled.

  • October 9, 2014
    Guest Post

    by Paul Bland, Executive Director of Public Justice. 

    *This post originally appeared on the Public Justice blog. 

    The Alliance for Justice has just released an extremely powerful documentary, “Lost in the Fine Print,” which you can view here. Narrated by former Labor Secretary and genuine American hero Robert Reich, it provides both a big picture overview of what’s unfair with forced arbitration, and three examples of the human impact of its unfairness. Unfortunately, as incredibly unfair as each of the three examples is, they are not at all uncommon stories. (Full disclosure: I’m one of the people who speaks in the film, which I consider a great honor.)

    As the film explores, forced arbitration is slipped by the vast majority of Americans – whether as consumers, workers, or small-business people – in ways that almost none of them will notice or recognize. The system is designed by the stronger parties to disputes – generally huge corporations – to favor them in disputes. Forced arbitration’s rapid spread has been aided by a series of 5-4 U.S. Supreme Court decisions that would never have been anticipated by the framers of our Constitution. 

    The film describes an employment case in which a U.S. Army Reservist was illegally fired from her job because her employer didn’t like her taking two weeks away from work to fulfill her military obligation. But an arbitrator selected by a corporation selected by her employer rejected her case out of hand, ignoring the clear legal rules applicable to the case. This is a fairly familiar situation in America.

  • August 14, 2014
    Guest Post

    by Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Ohio State University, Moritz College of Law

    Headlines often describe President Obama as “going it alone” on public policy in light of congressional inaction.  But his boldest moves in favor of workers’ rights are rooted in an obscure statute enacted 65 years ago – the Federal Property and Administrative Services Act of 1949 (FPASA).  That statute’s explicit purpose is to establish “an economical and efficient system for . . . [p]rocuring and supplying property and nonpersonal services” for the federal government.”  Most important, it specifically empowers the President to “prescribe policies and directives that the President considers necessary to carry out” FPASA’s purposes.

    In late July, President Obama issued two important orders resting directly on his FPASA authority. Executive Order 13672 adds to the prohibitions on employment discrimination by federal contractors a ban on discrimination based on “sexual orientation” or “gender identity.”  Executive Order 13673 imposes a variety of measures to insure that federal contractors comply with state and federal labor laws. It further prohibits employers with federal contracts worth $1 million or more from insisting on the mandatory arbitration of worker complaints dealing with sexual assault or harassment or with claims arising under title VII of the Civil Rights Act of 1964. Last February, the President issued Executive Order 13658, imposing a higher minimum wage requirement on federal contractors, as well.

    These orders have important precedents. President Kennedy relied on FPASA to prohibit race discrimination by federal contractors, a requirement amplified by President Johnson. President Nixon relied on FPASA to require federal contractors to engage in affirmative action to achieve equality in employment. President Carter used FPASA to impose a temporary system of wage and price controls on federal contractors. President Bush required federal contractors to inform employees of their right not to join a union. These orders have all been upheld in court.