Employee Rights and Employment Policy Journal

 A growing number of employers are requiring their employees, as a condition of employment or receiving benefits, to give up their right to judicial proceedings and to submit their public law claims against their employers to binding arbitration.  Public law arbitrators, like their commercial and labor counterparts, are not required to issue opinions explaining the legal and factual basis for their decisions.  As a result, many commentators question the accuracy, integrity, and desirability of this new system of public law arbitration. 

 The author suggests that public law arbitrators should be required to issue written opinions and to release them for publication.  This proposal represents a break from the tradition of arbitral confidentiality.  A new approach is necessary, the author suggests, because public law arbitration involves important social aspirations that are often absent from commercial and labor arbitration and which can only be achieved through a public process.  Public law arbritration opinions would provide numerous benefits to the particants in this new system, to the institution of public law arbitration, and to the public at large.  For example, by opening up the decisionmaking process to public scrutiny, arbitral opinions will allow for informed debate and evaluation of public law arbitration.