围攻下的仲裁:改革消费者和就业仲裁和集体诉讼*

IF 2.2 2区 社会学 Q1 LAW Texas Law Review Pub Date : 2013-02-01 DOI:10.2139/ssrn.2147605
George M. Padis
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引用次数: 1

摘要

根据杰米·利·琼斯在国会的证词,当她到巴格达为哈里伯顿公司工作时,她和400名男同事被关在一个兵营里,几乎立刻就遭到了性骚扰当她向经理抱怨时,她被告知“去做水疗”。就在第二天晚上,她“被(哈里伯顿的)几名员工下药、殴打和轮奸”。事件发生后,哈里伯顿公司把她关在一个集装箱里,并有武装警卫看守当她最终回到美国时,琼斯最初被拒绝出庭,因为她的雇佣合同中有仲裁条款虽然陪审团在琼斯女士的民事审判中作出了不利于她的判决,但她的故事和最近最高法院的一项裁决使公众关注仲裁,而仲裁正受到围攻争论的中心是一个在过去十年中一直使学者们产生分歧的根本问题:雇佣合同和消费者合同中的仲裁条款是否应该被执行,尽管存在不平等谈判的风险?在这个复杂的问题上,学者们大致分为两大阵营在一个阵营中,具有约束力的仲裁的支持者认为,不公平谈判的问题被夸大了,仲裁对雇员和消费者有显著的好处,增加了整体的社会福利另一个阵营反对强制执行有约束力的仲裁协议,指出琼斯案和其他仲裁的恐怖故事表明,对消费者和雇员有约束力的仲裁可能导致灾难性的和不公平的结果在琼斯和康塞普西翁之后,这场学术辩论已经蔓延到政治舞台,并产生了潜在的有意义和持久的影响。而且(通常情况下),进入政治辩论并没有缓和任何一个阵营;如果说有什么不同的话,那就是它使双方进一步结晶和分化。除了学术上的分歧之外,政府的两个部门之间也出现了分歧。根据对《联邦仲裁法》日益广泛的解释,最高法院扩大了仲裁条款的执行范围。然而,由于像ATT这样的决定,消费者和就业仲裁必须认真改革。改革应该对不同类型的纠纷所引起的不同关注敏感,而不是像国会和最高法院那样,采取草率的做法。本说明的主旨是提出有意义的改革,以平衡相互竞争的社会利益。本照会主要论述三点。首先,雇佣合同和消费者合同中的仲裁条款本身并不是问题所在——真正的问题是不公平的仲裁,这是由于程序保障不足造成的,不仅是议价能力方面的差异(如其他学者所认为的),而且是纠纷信息获取方面的差异(通常被表述为“重复玩家问题”)16,这给第三方核查和审查带来了程序上的困难。重复玩家问题本身并没有问题,17但它使得对不合理审查的程序保证不足。…
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Arbitration under Siege: Reforming Consumer and Employment Arbitration and Class Actions*
IntroductionAccording to her congressional testimony, when Jamie Leigh Jones arrived in Baghdad to work for Halliburton, she was housed in a barracks with four hundred male coworkers1 and was almost immediately sexually harassed.2 When she complained to managers, she was told to "go to the spa."3 The very next evening, she was "drugged, beaten, and gang-raped by several [Halliburton] employees."4 After the incident, Halliburton kept her in a container under armed guard.5 When she finally returned to the United States, Jones was initially denied her day in court because her employment contract included an arbitration clause.6 Although the jury found against Ms. Jones in her civil trial,7 her story and a recent Supreme Court decision8 have cast the public spotlight on arbitration, and arbitration is under siege.9 At the center of the controversy is a fundamental question that has divided scholars for the past decade: Should arbitration clauses in employment and consumer contracts be enforced despite the risk of unequal bargaining?10Scholars have mostly divided into two camps on this complicated question.11 In one camp, supporters of binding arbitration argue that the problem of unfair bargaining is overstated, and that arbitration has significant benefits for employees and consumers that increase overall social welfare.12 The other camp opposes the enforcement of binding arbitration agreements, pointing to the Jones case and other arbitration horror stories that demonstrate that binding arbitration for consumers and employees can lead to disastrous and inequitable results.13 After Jones and Concepcion, this academic debate has spilled over into the political arena with potentially meaningful and lasting consequences. And (as is often the case) the entry into the political debate has done little to moderate either camp; if anything, it has crystalized and polarized the sides further.14In addition to the divide in the scholarship, a divide has emerged between two branches of government. The Supreme Court has expanded the enforcement of arbitration clauses, under increasingly broad interpretations of the Federal Arbitration Act. As a result of decisions like ATT however, consumer and employment arbitration must be seriously reformed. The reform should be sensitive to the different concerns that arise from different types of disputes, instead of the blunderbuss approaches that have emerged out of Congress and the Supreme Court.The main thrust of this Note is to propose meaningful reform that balances the competing social interests. This Note argues three main points. First, arbitration clauses in employment and consumer contracts are not per se the problem-the real problem is unfair arbitration as a result of inadequate procedural guarantees that result from disparities not only in bargaining power (as other scholars have argued), but in access to information about disputes (commonly formulated as a "repeat-player problem")16 that causes procedural difficulties for third-party verification and review. The repeat-player problem is not in and of itself problematic,17 but it renders the procedural guarantees of unconscionability review inadequate. …
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期刊介绍: The Texas Law Review is a national and international leader in legal scholarship. Texas Law Review is an independent journal, edited and published entirely by students at the University of Texas School of Law. Our seven issues per year contain articles by professors, judges, and practitioners; reviews of important recent books from recognized experts, essays, commentaries; and student written notes. Texas Law Review is currently the ninth most cited legal periodical in federal and state cases in the United States and the thirteenth most cited by legal journals.
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