Note

Massachusetts v. EPA’s Regulatory Interest Theory: A Victory for the Climate, Not Public Law Plaintiffs

Standing doctrine’s development is often framed as a struggle between two competing models of adjudication. The private law model views the court’s role as the adjudicator of individual rights and conditions access to the court on a party’s showing of a discrete injury at the hands of another party. The opposing public law model favors congressional power to create causes of action that confer standing without requiring a showing of differentiated injury, and conceives of the judiciary’s role as integral to ensuring executive compliance with the law. Many commentators view Massachusetts v. EPA, a recent Supreme Court decision addressing global climate change, as liberalizing standing doctrine and as a significant victory for the public law model of adjudication.

This Note departs from this commentary by arguing that, on the whole, the standing theory advanced in Massachusetts places the case within the Court’s trend towards a more restrictive interpretation of the case-and-controversy requirement. This Note first analyzes the Massachusetts opinion, the history of state standing doctrine, and subsequent judicial treatment of the decision, in order to show that the Court’s standing decision is based on a finding of injury to Massachusetts’ governing interest: the ability of Massachusetts to regulate a harm that threatens the Commonwealth’s territorial integrity. The Note then argues that this “regulatory interest theory” creates a standing regime that may be a variation of the public law model, but one that is potentially highly restrictive of both state and individual standing. In fact, the regulatory interest theory may create a standing regime where state attorneys general have monopoly power over public law adjudication, a possibility that threatens both core public and private law model values. This Note concludes that a Positivist approach to standing that predicates state and citizen standing on positive statutory enactment provides a relatively straightforward, far more workable approach to the case-and-controversy requirement.

Preserving Collective-Action Rights in Employment Arbitration

Arbitration has great promise as a vehicle for efficiently and cost-effectively resolving work-related disputes on the merits—and doing so in a way that is more likely than litigation to satisfy all concerned parties. To preserve this promise, judges and policymakers must be vigilant in monitoring the use of arbitration by nonunion employers, lest it become a tool for exacerbating the imbalances of power between workers and management, and, thus, ultimately discredited. Of particular concern are attempts by employers to use predispute arbitration agreements as a means of class-action avoidance. Indeed, the prospect of limiting exposure to large-scale employment litigation through arbitration has given companies a substantial incentive to require their workers, as a condition of employment, to waive the right to sue in court and instead submit claims to binding arbitration.

The proliferation of employer-promulgated arbitration pacts that explicitly or implicitly prohibit multiparty actions likely will bring to the fore a question which courts have yet to confront directly: whether such an agreement, entered into as a precondition of employment, constitutes an unfair labor practice by interfering with the rights of employees to engage in “concerted activities for the purpose . . . of mutual aid or protection,” as guaranteed by Section 7 of the National Labor Relations Act.

Precedent indicates that many employment arbitration agreements are, in fact, vulnerable to unfair-labor-practice charges to the extent that they require employees to surrender their rights to collaborate in dispute resolution as a condition of employment. This Note suggests, however, that employers can preserve a form of mandatory individual arbitration without undermining the policies behind Section 7, offering a solution through which employers and employees can retain the practical benefits of arbitration within a system that allows employees to work in conjunction with one another to resolve claims of mutual concern. Specifically, it advocates that employers embrace transparency in their arbitration systems by instituting procedures that provide for public disclosure of outcomes and the right of participants to present relevant prior awards as persuasive precedent.

Such an approach—which this Note terms “open arbitration”—not only would allow courts to reconcile the “liberal federal policy favoring arbitration agreements” with the objectives of Section 7, but it also would mute many of the criticisms that have led courts to invalidate mandatory ADR agreements.

Choice of Law, the Constitution, and Lochner

The rise and fall of constitutional limits on state choice of law coincides almost perfectly with the so-called Lochner era in Supreme Court history and the connection is by no means accidental. This Note reveals that nearly half of all of the decisions in which the Court used “liberty of contract” reasoning to invalidate state or federal action—including the very first case to do so—dealt not with fundamental economic rights but with choice of law issues. After explaining how the Court’s choice of law doctrines worked, this Note concludes that for the most part they are not susceptible to the traditional criticisms of Lochner. This Note also concludes, however, that although Lochner may not teach us about the choice of law cases, the choice of law cases may help us better understand Lochner. Notions of consent-based political obligation evident in the choice of law cases can reconcile competing interpretations of the Lochner Court’s more controversial substantive due process decisions, while the embrace of legal realism that led the Court in the 1930s to discard its choice of law doctrines suggests that nonpolitical explanations for the abandonment of “Lochnerism” have been underappreciated in accounts of the New Deal Era Constitutional revolution. Choice of law theorists and legal historians alike would do well to revisit the complexities of the Supreme Court’s now-forgotten attempt to address the constitutional limits on the reach of state laws.

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