Author

Over the last decade, the Supreme Court, through its interpretation of the Federal Arbitration Act of 1925 (FAA), has expanded the role of arbitration in the resolution of legal disputes, including disputes arising under federal and state statutes. Recently, much debate has arisen over the issue of whether the FAA applies to employment contracts, and whether employees can enter into binding predispute agreements to arbitrate statutory employment claims. In Gilmer v. Interstate/Johnson Lane Corp., the Supreme Court held that under the FAA, employees could in fact enter into such predispute agreements. Because the agreement in Gilmer was not part of an employment contract, however, the Supreme Court left open a critical question, namely the scope of the FAA exclusion of employment contracts for certain employees engaged in foreign or interstate commerce. In this Article, Professor Estreicher first addresses the various public policy arguments raised by opponents of predispute agreements to arbitrate statutory employment claims. Addressing each one in turn, he concludes that where certain procedural safeguards are implemented, arbitration is indeed a proper forum for the resolution of statutory employment claims, and that predispute agreements to arbitrate provide valuable benefits for both employers and employees. Turning to the issue left open by the Court in Gilmer, Professor Estreicher explores the confusion surrounding the scope of the FAA exclusion of employment contracts, which in large part stems from an uncertain legislative history, and suggests that, given recent Court decisions and the policies underlying them, a narrow interpretation of the exclusion by the Supreme Court is probable. Professor Estreicher concludes by stressing that a proper arbitration system can advance the public policies contained in federal and state employment statutes.

The Law Review deserves kudos for publishing this Symposium drawn from Articles and Essays presented at last year’s Research Conference on Behavioral Law and Economics in the Workplace, sponsored by New York University’s Center for Labor and Employment Law. Authored by leading scholars in the field, these Articles and Essays promise to spark debate on the implications of the growing, largely experimental behavioral literature for employment law and workplace governance.

Federal Class Actions After 30 Years

Does the experience of thirty years suggest a need to reexamine the legal framework for class action litigation? Consider some of the developments during the intervening period that might have been beyond the prescience of the framers of the current version of Rule 23:

• the use of the (b)(1) category to certify nationwide classes without notice or opt-out rights because of a concern that a defendant's assets would be insufficient to satisfy all projected claims;
• the availability of individualized recoveries in civil rights litigation also seeking classwide injunctive relief under the (b)(2) category, again without notice or opt-out rights;
• the enactment in 1968 of the Multidistrict Litigation Act, enabling federal courts to consolidate suits across the country into one proceediing for pretrial purposes, including motions for summary judgment and nationwide settlements;
• the possible certification of (b)(3) class actions not only in single-event mass-disaster cases but also in "mass torts" like asbestos, silicone gel breast implants, and nicotine-dependency that often present a range of claims arising from exposure to toxic substances, including claims of present injury and claims of enhanced risk unaccompanied by present symptoms;
• the emergence of settlement-only class actions, often involving in-kind relief rather than cash distributions to class members;
• the growing perception on the part of federal judges that burgeoning dockets require a greater receptivity to techniques for aggregating claims and consolidating lawsuits even in the "mass tort" context; and
• the development of alternatives to federal class actions such as separate suits utilizing the doctrine of offensive nonmutual issue preclusion, and state-court actions providing a nationwide forum for class claims.

The papers in this volume provide a valuable starting point for assessing whether these (and other) changes in the legal landscape make out a case for reform.