How The Supreme Court Could Reshape Employment Law


Publish Date:
February 25, 2018
The Atlantic
Related Person(s):


During Neil Gorsuch’s Supreme Court nomination hearing last year, then-Senator Al Franken asked the nominee whether he had read a recent New York Times series about the use of arbitration to thwart consumer complaints against corporations.

Gorsuch said he had. “It made me think about a little bit of history,” he added. “It used to be back at common law that arbitration was disfavored because it was thought that everyone should go to trial, trials were the norm, Seventh Amendment and all that. And then in [1925] Congress passed a law called the Federal Arbitration Act … Congress expressed a judgment that people should arbitrate their disputes. It made a judgment, policy judgment in favor of arbitration, because it’s quicker, cheaper, easier for people.”

During the early ‘20s, the bill’s sponsors repeatedly explained that the act would not cover labor matters. Stanford Law School legal historian Amalia Kessler told me, “It’s pretty clear that [Charles Bernheimer, chief lobbyist for the Act and a ‘protocol’ veteran] was not eager to have his organization involved in labor arbitration.” In Outsourcing Justice: The Rise of Modern Arbitration Laws in America, a comprehensive history of the FAA’s drafting, Loyola University law professor Imre Szalai wrote, “The intentions behind the Federal Arbitration Act are clear with respect to labor disputes,” he wrote. Arbitration clauses in employment contracts, he concluded, were not to be covered by the act.


Read More