Workplace Justice: Does Private Judging Matter?

A great many employers in the United States have required employees to forego judicial litigation in favor of arbitration. These employers see efficiency and legal benefits in the substitution. This development poses the question of whether private judging matters. If so, to whom, and why. Much of the resulting academic study has been empirical, addressed to the efficiency benefits in terms of differences in access and outcome. This article addresses the legal benefits employers seek, especially the absence of precedent. The springboard for analysis compares the German law of wrongful dismissal with the treatment of wrongful dismissal in American labor arbitration, using discharge for petty theft for case study. (The attached are the proofs of an article to appear in the Zeitschrift für Vergleichende Rechtswissenschaft, a leading German journal in comparative law.) The article argues that a significant but rather little discussed potential consequence of the privatization of public law is the effect on the public perception of and so of public concern with the underlying issue.