April 6, 2012
Widiss on Gross Hydras and Statutory Interpretation
That's me on the left. That's a hydra on the right, the metaphor Deborah Widiss uses in her new article, now available on SSRN.. The title is Undermining Congressional Overrides: The Hydra Problem in Statutory Interpretation, 90 Tex. L. Rev. 859 (2012), which continues Professor Widiss's focus on the Supreme Court's evolving methodology in interpreting statutes, largely by looking at the Court's employment decisions. Her abstract:
Statutory overrides — that is, amendments to supersede a judicial interpretation of a statute — are the primary mechanism by which Congress signals disagreement with court interpretations; they are essential to protect the separation of powers and the promise of legislative supremacy. But in Gross v. FBL Financial Services, the Supreme Court held that Congress’s override of a judicial interpretation of Title VII did not control the interpretation of identical language in the Age Discrimination in Employment Act, and further that Congress’s “neglecting” to amend the ADEA when it amended Title VII was a clear signal that Congress intended the language in the ADEA to be interpreted differently. The Court instead embraced an interpretation that had been rejected by both Congress and a prior majority of the Supreme Court. Lower courts, following typical rules of statutory interpretation, have quickly applied Gross to reinterpret the causation standard under numerous other employment laws. The Court’s reasoning in Gross improperly cabins the effects of congressional overrides and dramatically aggrandizes the judicial role; it also unmoors the Supreme Court from the rules of precedent that typically constrain judicial interpretation.
Gross and its aftermath illustrate what I call the “hydra problem.” Congress tried, through enacting an override, to supersede a judicial interpretation with which it disagreed. The Court interpreted this action — the metaphorical severing of a head — to permit the rapid growth of new “heads” in numerous other statutes. In Gross, the Court suggested that Congress bears the burden of avoiding the hydra problem by separately amending all statutes to which a disfavored interpretation might be applied. This is an unreasonable expectation. Courts should instead adopt a rebuttable presumption that enactment of an override calls for the (re)interpretation of the preexisting language in the statute amended, and analogous provisions in related statutes, consistent with the meaning endorsed by Congress, so long as the preexisting text can reasonably bear that meaning. This approach would better permit overrides to play their intended role as a check on judicial lawmaking. It would also further independent values of fairness, predictability, and efficiency in the development of statutory law.
As always with Deborah, this piece is well worth the read, and it uncovers a potentially serious new problem in the ongoing tug-of-war between Congress and the Court over the meaning of statutory overrides.
That said, I do have a few thoughts about Hydra, which will appear (imminently, I hope) in See Also, the on-line supplement to the TLR. It's title is The Curious Incident of Grossand the Significance of Dogs that Don’t Bark. I'll post again when it's out and, in the meantime, spare the reader a picture of a nonbarking dog.
April 3, 2012
Customizing (?) Employment Arbitration Agreements
Erin O'Hara O'Connor (Vanderbilt Law), Kenneth Martin (New Mexico State - Business), & Randall Thomas (Vanderbilt Law) have just posted on SSRN their article Customizing Employment Arbitration (forthcoming March 2012, Iowa L. Rev.). Here's the abstract:
According to the dispute resolution literature, one advantage of arbitration over litigation is that arbitration enables the parties to customize their dispute resolution procedures. For example, parties can choose the qualifications of the arbitrator(s), the governing procedural rules, the limitation period, recoverable damages, rules for discovery and the presentation of evidence and witnesses, and the specificity of required arbitrator findings. While other scholars have questioned whether parties to arbitration agreements frequently take advantage of this customization, there is little solid empirical information about the topic.
In this article, we study the arbitration clauses found in a random sample of 910 CEO employment contracts entered into during the time period 1995 to 2005 to determine how much customization actually takes place. We find only a small number of instances where fine-grained customization has occurred. Parties pay very little attention to customizing arbitral proceedings in these employment contracts, although there is a significant increase in the practice over time. We find this result surprising given that CEO contracts are heavily negotiated documents.
Unexpectedly, we find that about half of the arbitration clauses in our contracts carve out a subset of potential claims or types of relief by reserving a right for the parties to seek such relief or file such claims in court. This phenomenon of customizing the circumstances under which parties will use arbitration has received almost no attention in the academic literature to date. In particular, we find that the types of claims carved out for court resolution are those involving firm efforts to protect the value of its information, reputation, and innovation. CEOs and companies in the information technology business are not significantly more likely to carve out such claims, and the use of these carveouts is increasing over time, suggesting that such carveouts are increasingly valuable to all firms. Unfortunately, California court regulation of arbitration clauses in employment contracts has significantly dampened the use of carveouts in contracts between CEO’s and their firms located in California. Our data suggests that court efforts to protect employees by scrutinizing the specific carveouts we observe is both unnecessary and destructive.
The latter finding won't come as much of a surprise to lawyers in the trenches. It's relatively common for employers to draft standard-issue arbitration agreements that require arbitration of discrimination, tort, and contract claims, but carve out for ligitation claims for injunctive relief and/or for trade secrets, noncompete agreements, etc. -- i.e., all the claims the employer might want to bring against an employee.
April 2, 2012
Secunda on the Wisconsin Public Labor Dispute
Our own Paul Secunda (Marquette) will be speaking at the Centre for Labour Management Relations of Ryerson University in Toronto on April 16. From the school's website advertising the event:
The enactment in June 2011 of Wisconsin Act 10, legislation that eliminated most collective bargaining rights for most public employees in Wisconsin, did not necessarily follow from the economic conditions surrounding the global recession. The argument here is that it was a blatant power grab with political, social and economic implications. Governor Walker's claim that Act 10's anti-collective bargaining approach was required to balance Wisconsin's budget is belied by two unassailable facts.
First, there were a number of provisions in the law, including an annual union recertification requirement and an anti-dues checkoff provision, which had absolutely nothing to do with cost-savings.
Perhaps even more tellingly, when Act 10 was finally enacted by the State Legislature, Walker and his allies employed a legislative procedure which could only be utilized if Act 10 did not have any impact on state fiscal policy. In short, Governor Walker used the global economic crisis, and Wisconsin's budget situation more specifically, as a ruse to enact a punative bill against public sector unions.
Although unions and their allies have drafted, and continue to draft, procedural and substantive legal challenges to Act 10 based on state open meeting laws and constitutionally-based freedom of association and equal protections provisions, these legal challenges have so far been unsuccessful. If such efforts continue to be unsuccessful, it indeed may be a long time before any real public sector collective bargaining will be permitted in Wisconsin. The subsequent loss of workplace rights not only adversely impacts public sector workers, but also the citizens of Wisconsin who will be that much poorer for having to live in a society where internationally-recognized rights of association and collective bargaining are not taken seriously.
American University Labor and Employment Law Forum 2012 Symposium
The editors of the American University Labor and Employment Law Forum Symposium invite everyone to attend their 2012 Symposium: Labor Movement 2.0: The Role of Organized Resistance in the 2012 Elections.
The Symposium is scheduled for next Monday, April 9, 2012 from 9 am - 3 pm at the American University Washington College of Law, 4801 Massachusetts Avenue, NW, Room 603, Washington, D.C.
From the conference flyer:
A timely examination of the fight for workers’ rights and the critical role of political action, through unions and grassroots community organizing. Political action has been used to establish wage floors and hours ceilings, provide for workers’ health, safety, and long-term security. The other side of the coin reveals that it has also been used to limit workers’ abilities to negotiate the terms of their employment. How will political action via unions, PACs and grassroots community organizing impact the current status of the American worker in 2012?
Up to four and a half (4.5) CLE hours will be applied for as requested to different states, for a charge of $220.00. To register, go to https://www.wcl.american.edu/secle/cle_form.cfm and choose the event from the drop down menu.