CSDR Symposia
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The Creeping Legalism Labor Arbitration October 9, 2009 As a method of dispute resolution, labor arbitration falls somewhere in between non-binding forms of dispute resolution and more formal dispute resolution processes. This "in-between" status has made it difficult at times for the participants in labor arbitration to decide what role the law and legally related constructs should play in labor arbitration. For many years, practitioners and scholars intensively debated the extent to which labor arbitration was becoming too legalistic. While little attention was paid to this issue in the 1990s, recent developments have made the "creeping legalism" issue particularly relevant. First, the increased regulation of the employment relationship has placed labor arbitrators in a position to interpret issues of external law when deciding collective bargaining disputes. Second, the proliferation in the use of individual employee rights arbitration, which by nature is more legalistic, might have affected the practice of labor arbitration. To the extent that some of the same players participate in both, labor and employee rights arbitration, one would expect the legalistic character of individual employee rights arbitration to spillover to labor arbitration, and perhaps other forms of alternative dispute resolution. The recent United States Supreme Court’s decision in 14 Penn Plaza LLC v. Pyett, which holds that a bargaining contract provision requiring employees to arbitrate age discrimination claims is enforceable and thus precludes later litigation of such claims, accentuates the importance of this issue. This symposium seeks to reignite the discussion on the legalization of labor arbitration. The presenters will explore the history of "creeping legalism" and evaluate its effect on the practice of labor arbitration. The presenters will also assess the effect of the legalization of labor arbitration in other forms of dispute resolution, as well as identify future trends. |
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Collaborative Governance: The Future of Regulation: An Interdisciplinary and International Review April 2-3, 2009 President Obama recently emphasized that government should be both participatory and collaborative. Collaboration, when properly executed, expands the information and insight that is available to agencies, and the focused deliberation can result in policies that would be difficult to achieve otherwise. The essence of collaboration is the bilateral nature of the discussions, with the agency engaging in a give and take, instead of simply informing itself to make the decision alone. Collaboration can take many forms and be employed throughout the regulatory process: it might be a scoping session to develop the issues that need to be taken into account in a new rule; it might be a policy dialogue or roundtable in which the science or other important components are discussed; it might be recommendations to the agency concerning a proposed rule; or, indeed, the collaboration might be entirely within the private sector to establish a policy in lieu of mandatory regulation. While these are certainly helpful in informing the agency, they stop short of securing the ultimate benefit of collaboration: an actual agreement on the major provisions of a new policy. On the other hand, if not used properly, a collaborative approach can waste valuable time or lead to deficient decisions. Thus, doing right and in the right situations is critically important. This timely program will explore the regulatory use of collaborative governance and develop recommendations for its appropriate use. |
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Innovative Models of Lawyering: Collaborative Law and Other Processes October 12, 2007 The Center sponsored a symposium entitled "Innovative Models of Lawyering: Collaborative Law and Other Processes." David Hoffman, the founding partner of the Boston Law Collaborative, LLC, and a former chair of the ABA Section of Dispute Resolution, gave the keynote presentation entitled, "Practicing Law as Form of Dispute Resolution: Towards a Unified Field Theory of ADR." Prof. John Lande presented the results of his empirical study of Cooperative Practice in Wisconsin and Center Director Robert Bailey and Prof. Stephen Easton moderated discussions. Articles based on the presentations will be published in the Journal of Dispute Resolution, including an article by Lawrence P. McLellan (LLM ’06). More Information (PDF) |
