Due Process in Employment Arbitration: The State of the Law and the Need for Self-Regulation

EREPJ, Vol. 11, No. 2, 2007

41 Pages Posted: 1 Feb 2008 Last revised: 26 Dec 2012

See all articles by Martin H. Malin

Martin H. Malin

Chicago-Kent College of Law - Illinois Institute of Technology

Abstract

Gilmer and Circuit City enforced pre-dispute agreements to arbitrate public law claims imposed by employers as a condition of employment, provided that the employees could effectively vindicate their public law rights in the arbitral forum. The rationale that the agreement merely substitutes the arbitral forum for the judicial suggests that courts are to police the justness of arbitral procedures. More recent Court decisions, however, have backed off, resulting in the extremely heavy burdens placed on employees challenging the adequacy of arbitral procedures and the deferral of adequacy issues to the arbitrator. Some courts have tried to fill this regulatory gap with the common law doctrine of unconscionability but this approach also has major drawbacks as a tool for ensuring arbitral fairness. The result is a heavy burden on the ADR community to regulate itself. Professor Malin chronicles the limits of current judicial policing and discuss the advantages and limits of self-regulation.

Suggested Citation

Malin, Martin H., Due Process in Employment Arbitration: The State of the Law and the Need for Self-Regulation. EREPJ, Vol. 11, No. 2, 2007, Available at SSRN: https://ssrn.com/abstract=1088435

Martin H. Malin (Contact Author)

Chicago-Kent College of Law - Illinois Institute of Technology ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States

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