Texas A&M Law Review


Allen Al-Haj

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A law can often be a double-edged sword—its mandate or protection of one right will sometimes come at the cost of another. Compounding this problem of unintended consequences is that laws do not operate in a vacuum. Instead, laws interact with other laws, and if they conflict, courts must determine which will prevail. Determining the validity of class-action waivers in employment arbitration agreements will require reconciling the Federal Arbitration Act’s mandate that arbitration agreements be enforced according to their terms against the National Labor Relations Act’s protection of employees’ right to engage in concerted activities for the purpose of mutual aid and protection. The dispute over the validity of these agreements requires courts to determine which law and congressional policy should prevail. The National Labor Relations Board and circuit courts throughout the country have been unable to reach a uniform decision, which has prompted the United States Supreme Court to grant certiorari on a triad of cases concerning this issue. With a decision from the nation’s highest Court expected during the 2017–18 term, this Comment analyzes the background and legal arguments behind these competing statutes to determine how the Court is likely to rule. This Comment concludes that, given the Court’s previous rulings in arbitration and class-action cases and the recent Supreme Court confirmation of Justice Neil Gorsuch, the Court is likely to rule in favor of validating class-action waivers in employment arbitration agreements.

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