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A Risk-Based Approach to Mandatory Arbitration

34 Pages Posted: 19 Nov 2004  

Scott Baker

Washington University in St. Louis - School of Law

Abstract

In this essay, I argue that employers view mandatory arbitration as a method of controlling the risk of discrimination lawsuits, much like employers view property insurance as a method of controlling the risk associated with a plant fire. Using a risk analysis, the essay reexamines (1) the repeat player effect in arbitration, (2) why employers do so well in the litigation of discrimination disputes, and (3) the adequacy requirement for arbitral forums. In particular, I consider whether mandatory arbitration accounts for the problems of moral hazard and adverse selection endemic to any risk management scheme.

Keywords: mandatory arbitration, pre-dispute arbitration, employment discrimination

JEL Classification: J52, J71, K12

Suggested Citation

Baker, Scott, A Risk-Based Approach to Mandatory Arbitration. Oregon Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=622922

Scott A. Baker (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

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