Claiming Private Law for the Left: Exploring Gilmer's Impact and Legacy

Abstract:     
The article analyzes two Supreme Court decisions from the early 1990s, Gilmer v. Interstate Johnson Lane Corp, 500 U.S. 20 (1991) and Lechmere v. NLRB, 502 U.S. 527 (1992), to show how the case holdings and even the language of the decisions themselves suggest a movement toward privatizing labor law. Straining the decisions through a rubric regarding whether legal opinions might be considered public or evidence a new public law, the article argues that the two decisions evidence a shifting paradigm. The article then analyzes whether private law necessarily has a conservative leaning political valence. Concluding that it does not, the article suggests ways in which the trend toward privatization in labor law might be used to further progressive ends, particularly with respect to emerging law regarding arbitration of employment discrimination cases.

Number of Pages in PDF File: 20

Accepted Paper Series