Finkin, Matthew W., "Privatization of Wrongful Dismissal Protection in Comparative Perspective", Industrial Law Journal v. 37 (2008) p. 149-168
In Circuit City Stores, the Supreme Court ruled that it employers may impose mandatory pre-dispute arbitration of statutory employment claims. This article compares the privatization of employment law claims in the U.S. to the British, French, and German systems and shows that in each of those systems, such privatization would not be viable. The article explores the reasons for the U.S. exceptionalism in this arena including the American courts' desire to clear clogged dockets, the lassitude of the American legislature on the topic, and the rationale offered by public choice theory. In contrast, the article explains, the substitution of employer designed private remedies would be unthinkable in the British, French, and German systems. While each of these three systems is distinct in many aspects, they share three important features: (1) public tribunals are seen as inviolable fixtures of the legal culture, (2) legislation would be required to dismantle extant legal barriers to privatization of employment claims, and (3) despite awareness of the U.S. trend toward privatization, there has been no serious legislative interest in following that direction.
Stone, Katherine V.W., "Flexibilization, Globalization, and Privitization: Three Challenges to Labor Rights in Our Time", Osgoode Hall Law Journal v. 44 no77 (2006) p. 77-104
Three dynamics are coalescing to reshape labor relations in the 21st century in the United States: They are flexibilization, globalization and privatization. Flexibilization refers to the changing work practices by which firms no longer use internal labor markets or implicitly promise employees lifetime job security, but rather seek flexible employment relations that permit them to increase or diminish their workforce, and reassign and redeploy employees with ease. Globalization refers to the increase in cross-border transactions in the production and marketing of goods and services that facilitates firm relocation to low labor cost countries. And privatization refers to the rise of neo-liberal ideology, the attack on big government and the dismantling of the social safety net that have dominated public policy in the U.S. in recent years. All three of these dynamics have been detrimental to U.S. employment standards and union strength. This paper describes how each of these dynamics has undermined labor rights and then asks, what prospects are there, in light of this environment, for protecting employment rights, re-invigorating unions, and security a social safety net? It concludes that the response to the global threat to labor standards lies in a revival of collective action at the local level. It further concludes that the combined forces of flexibilization, globalization, and privitization make collective action at the local level not only necessary, but also possible.