Law Schedule of Classes

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227.11 sec. 001 - Employment Arbitration: Law and Practice (Fall 2023)

Instructor: Barry Winograd  (view instructor's teaching evaluations - degree students only | profile)
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Units: 2
Grading Designation: Graded
Mode of Instruction: In-Person

Course Start: August 26, 2023
Course End: September 23, 2023
Class Number: 32188

Enrollment info:
Enrolled: 0
Waitlisted: 0
Enroll Limit: 20
As of: 02/07 02:03 PM

This two-unit course, will study the law and practice governing mandatory employment arbitration proceedings affecting the statutory rights of millions of workers. Enrollment is limited to 20 students in Berkeley Law programs and other Berkeley graduate students.

As a principal course objective, employment arbitration will be examined through a series of case and practice readings, in-class simulation exercises, and student writing assignments. Students will be assisted with an Arbitration Practice Guide and a set of Supplemental Readings prepared specially for this class. In the last class session, students will work in teams to present a case to professional arbitrators presiding at a hearing. Students also will hear from practitioners in the field offering insight about arbitration practice.

For nearly 50 years, few subjects in U.S. civil law have been as contested as mandatory arbitration, also described as forced or compulsory arbitration. The Federal Arbitration Act (FAA), enacted in 1925 and originally intended to govern commercial and business disputes, is at the heart of continuing legal conflict. Individuals at work and in a wide variety of other everyday settings are subject to FAA-enforced contract terms. These terms require, as a condition of the relationship, submission of all disputes to arbitration instead of recourse to a judicial proceeding.

No subject has been affected by the arbitration debate more than the employment relationship in the non-union workplace, in part because personal and business stakes are high, and in part because extra-judicial forces - business and advocacy groups - are well-organized and funded. The direction the law has taken has been affected by federal and state laws, arbitration rules promulgated by private organizations, and hundreds of appellate decisions and scholarly articles. In the Supreme Court’s recent 2021-22 term, it decided four employment arbitration cases under the FAA. A new federal law bans mandatory arbitration of claims alleging sexual assault and harassment. In the public realm, law students successfully organized against mandatory plans for law firm employees, and journalists have drawn attention to arbitration for newscasters, sports figures, and those working in the gig economy.

The instructor has been an arbitrator and mediator of workplace and other civil disputes since 1988. For over 30 years, he has been on the adjunct faculty at Berkeley Law teaching labor law and arbitration. He also has taught on the adjunct law school faculty at the University of Michigan and, earlier this year, at the University of Pennsylvania. The instructor has served as president of the National Academy of Arbitrators, was a senior editor of a treatise on employment law and dispute resolution, has written articles for professional journals in the field, and has contributed to amicus filings on arbitration cases in the Supreme Court. Previously, he was an an administrative law judge for the California Public Employment Relations Board and an attorney for the United Farm Workers Union.

We also have special academic rules for these condensed courses:
- Students must attend each course session and cannot attend any course session remotely (even for illness or emergency situations).
- The Registrar’s Office will drop a student who does not attend each course session.

Due to the condensed nature of this course, in-person attendance at all course sessions is mandatory. Absences cannot be excused for any reason, including illness or emergencies. The Registrar’s Office will drop any student who misses a session.

There are no prerequisites for the class. Past or current courses on labor and employment law, evidence, and trial practice could be helpful, but they are not essential. Professional experience in employee relations and human resources could be helpful as well, but is not essential.

Requirements Satisfaction:

Units from this class count towards the J.D. Experiential Requirement.

Exam Notes: (None) Class requires a series of papers, assignments, or presentations throughout the semester
Course Category: Work Law
This course is listed in the following sub-categories:
Public Law and Policy
Social Justice and Public Interest

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