A Risk-Based Approach to Mandatory Arbitration
Washington University in Saint Louis - School of Law
Oregon Law Review, Forthcoming
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.
Number of Pages in PDF File: 34
Keywords: mandatory arbitration, pre-dispute arbitration, employment discrimination
JEL Classification: J52, J71, K12
Date posted: November 19, 2004