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Reminiscences

Archibald Cox discusses his career and experiences, with David Feller

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Reminiscences

Archibald Cox discusses his career and experiences, with David Feller

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Recent developments in professional ethics: Implications for arbitrators and advocates.

An examination of the ethics of arbitrators advertising their services, including employment arbitration and mediation; of furnishing training to solely one party; and of serving as an expert witness. Amendment of the Code of Professional Responsibility in 1996, to permit the providing of accurate and objective information about an arbitrator, is also discussed.

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Professor Feller reviews three of his earlier papers. The first, “A General Theory of the Collective Bargaining Agreement,” advanced a theory of labor arbitration which, he acknowledges, the courts have followed. The second was “The Impact of External Law upon Labor Arbitration. By “external law” Professor Feller meant public law and not the law of …

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How the Trilogy was made.

Professor Murphy introduces Professor Feller, and then Professor Feller describes the events in his career that led to his appearance before the Supreme Court in the Steelworkers Trilogy and other cases. He also describes the “well-planned litigation strategy” that brought the Trilogy cases before the Court, and the Court’s rulings on the enforcement, under Section …

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Professor Feller observes that courts, enforcing the arbitration provisions of both commercial and labor agreements, will rarely set aside a commercial award. However, courts will set aside labor arbitration awards that offend them, on the premises of “public policy” or failure to “draw its essence” from the CBA. Thus, there is no longer reason to …

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Arbitration in a changing environment

David Feller introduces Justice Brennan, who, observes that “arbitral awards are not accorded sufficient finality and that federal law intrudes at every turn.” Justice Brennan recommends that arbitrators do their utmost to render decisions that are consistent with the statutes to which they pertain and that, knowing that judicial second-guessing of their opinions will be …

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A review of case law that employer – union joint decisions without a neutral are the legal equivalent of an arbitration decision, for purposes of enforcement by the courts. Open issues of statutes of limitation, judicial review, arbitral immunity and duty of fair representation are raised.

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The art of opinion writing

The attributes of a well-written arbitration decision are described.

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Prof. Feller agrees with Prof. St. Antoine, that the arbitrator is a “contract reader” and not a “contract enforcer.” The sole function of the arbitrator is to say what the agreement means, and that should also be the arbitrator’s sole function in fashioning the remedy. The primary authority implicitly granted to the arbitrator is to …

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