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.
8:45 a.m. - 12:45 p.m.
Hulston Hall
School of Law
University of Missouri
Columbia, Missouri
For information please contact:
Laura Coleman
Ph: 573-882-5969
Email: colemanl@missouri.edu
Web site: law.missouri.edu/csdr
There is no fee for the symposium. The symposium is approved for 4.0 hours of mandatory continuing legal education credit in the state of Missouri.
The
of

welcome 8:45 – 9:00 a.m.
Deans R. Lawrence Dessem and Robert G. Bailey keynote Speaker 9:00 – 9:50 a.m.
Dennis R. Nolan
Webster Distinguished Professor
Emeritus of Labor Law,
University of South Carolina
School of Law
Declension myths – or in simpler language, stories of decline and fall – are a common way to describe an individual’s or an institution’s development. Those myths share certain features: the belief that there once was a time of perfection and harmony, when the lion lay with the lamb and all was right under the heavens; the identification of something, usually human sins or errors, that destroyed perfection; and the optimistic hope that we can, by purifying ourselves of our sins, recreate the golden age. The story of Adam and Eve is the archetype, but the charge of “creeping legalism” in labor arbitration fits the pattern perfectly.
In this paper I suggest that the story of arbitration’s fall from grace because of increasing “legalism” is wrong in all three elements. There never was a time of arbitration perfection. The changes in labor arbitration came about because the parties’ needs and desires for their dispute resolution processes shifted as their bargaining relationships matured, not because of practitioners’ mistakes. There is no way we could return to the innocent days of completely informal arbitration, nor should anyone conversant with labor dispute resolution even want to do so.
Nevertheless, there are ways in which arbitration could be made simpler, faster, and cheaper. Indeed, many parties already use those methods for certain cases. The difficulty is that simplicity comes at a price that parties are only rarely willing to pay.
panel one 10:00 – 11:15 a.m.
Professor S.I. Strong, Moderator
The Legalization of Labor
Arbitration Procedure
Laura J. Cooper
J. Stewart and Mario Thomas
McClendon Professor in Law and
Alternative Dispute Resolution,
University of Minnesota Law School
Mediation in Employment and
Creeping Legalism: Implications for Dispute System Design
Lisa Blomgren Bingham
Keller-Runden Professor of Public
Service, School of Public and
Environmental Affairs, Indiana
University, Bloomington
An Holistic Strategy for Coming to Grips with the Creeping
Legalism of Labor Arbitration
Stephen L. Hayford
Professor of Business Law, Kelley
School of Business, Indiana
University, Bloomington
Break 11:15 – 11:30 a.m.
panel two 11:30 – 12:45 p.m.
Professor Richard C. Reuben, Moderator
Irreconcilable Deferences?
The Troubled Marriage of Judicial Review
Standards under the Steelworkers Trilogy and
Federal Arbitration Act
Peter Feuille
Professor, School of Labor and Employment Relations,
University of Illinois at Urbana-Champaign
Michael LeRoy
Professor, School of Labor and Employment Relations and
College of Law, University of Illinois at Urbana-Champaign
Fallout from Pyett : Fractured
Arbitration Systems in the
Unionized Workplace
Ann C. Hodges
Professor of Law, School of Law,
University of Richmond
The Evolving Schizophrenic
Nature of Labor Arbitration
Martin H. Malin
Professor of Law and Director of the
Institute for Law and the Workplace,
Chicago-Kent College of Law