Supreme Court Dissent Cites Volume 124 Article
In Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), the Supreme Court considered whether employment contracts may bar collective arbitration. In a 5-4 decision, the Court held that employment contracts requiring individual arbitration are enforceable under the Federal Arbitration Act. It reasoned that the National Labor Relations Act (NLRA) did not, as a matter of statutory interpretation, protect collective or class action nor explicitly displace the FAA.
Justice Ginsburg's dissent, joined by Justices Breyer, Sotomayor, and Kagan, argues that the majority interprets the NLRA's protection of "concerted activities" too narrowly. The dissent cited Judith Resnik's Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights, 124 Yale L.J. 2804 (2015) to support the argument that collective action is necessary for the enforcement and redress of workers' rights.