Unveiling Fairness for the Consumer:The Law, Economics and Justice of Expanded Arbitration

In recent years, the US Supreme Court has rather controversially extended the ambit of the Federal Arbitration Act to extend arbitration’s reach into, inter alia¸ consumer matters, with the consequence that consumers are often (and unbeknownst to them) denied remedies which would otherwise be available. Such denied remedies include recourse to class action proceedings, effective denial of punitive damages, access to discovery and the ability to resolve the matter in a convenient forum.

The court’s extension of arbitration’s ambit is controversial. Attempts to overturn this extension have been made in Congress, but to no avail. In contrast to American law, European consumer law looks at pre-dispute agreements to arbitrate directed at consumers with extreme suspicion, and does so on the grounds of fairness. In contrast, some argue that pre-dispute agreements in consumer (and employment) matters are consumer welfare enhancing: they decrease the costs of doing business, which is then passed on to the consumer. This Article examines these latter claims from both an economic and normative perspective.

The economic analysis of these arguments shows that their assumptions do not hold. Rather than being productive of consumer surplus, the use of arbitration is likely to have the opposite effect. The industries from which the recent Supreme Court cases originated not only do not exhibit the industrial structure assumed by the proponents of expanded arbitration, but are also industries which exhibit features that facilitate consumer welfare reducing collusion.

The normative analysis addresses the fairness concerns. It is explicitly based upon John Rawls’ notion of “justice as fairness,” which can provide a lens to evaluate social institutions. This Rawlsian analysis considers the use of extended arbitration in consumer matters in the light of the earlier economic results. It suggests that the asymmetries present in the contractual allocation of rights serve as prima facie evidence that such arbitration–induced exclusions are prima facie unjust/unfair. However, as asymmetry is only a prima facie test, a generalized criticism of the arbitration exclusions (of the sort found in Congress and underlying the European regime) is overbroad.

A fair day's wage? Perceptions of public sector pay

There is a scarcity of evidence pertaining to the general public's perception of public sector pay. Hence, in the present study, 161 women and 149 men were asked to estimate the wages 35 public sector professions should receive annually in the fictitious nation of Maldoria, based on a comparison value of an annual income of T10,000 for general practitioners. Analysis showed that only pilots were given a higher annual income than general practitioners; miners and local government workers were also provided with relatively high annual incomes. By contrast, newscasters were provided with the lowest annual income. Participants' sex did not affect these evaluations, and other demographic variables and public sector-related information of the participants were poor predictors of their evaluations. The implications of this research on public attitudes toward wage determination are discussed, and avenues for further research highlighted.

Public Interests, Private Disputes: Investment Arbitration and the Public Good

This paper seeks to investigate the bases for resistance to arbitration in general -and investor arbitration in particular- focusing on the way in which arbitral tribunals deal with notions of public interest and the public good. The paper hypothesises that while courts have within their terms of reference the capacity to consider notions of public interest, arbitral tribunals do not. It is this core difference in the scope of decision making between the two bodies that could render privately organised dispute resolution unsuitable for disputes that have public aspects, like investor-state disputes. The paper discusses the meaning of public interest and the public good as found in the literature. It then proceeds to consider how tribunals in the investment field have dealt with these concepts. This leads to a conclusion urging not abandonment of arbitration as a component of dispute resolution, but caution. It is argued that unchecked growth in private dispute resolution can threaten perceptions of legitimacy and democratic accountability. The paper adopts a socio-legal methodology in considering the effect of legal mechanisms on social and political phenomena. It is also informed by a law and economics methodology in addressing impacts of dispute resolution mechanisms on economic efficiency. The contribution of the paper rests on theorising motivations for resistance to private dispute resolution, a topical issue in light of the TTIP debate.

What hides behind the fixed-term contracts wage gap?

In Portugal, about 20% of full-time workers are employed under a fixed-term contract. Using a rich longitudinal matched employer-employee dataset for Portugal, with more than 20 million observations and covering the 2002-2012 period, we confirm the common idea that fixed-term contracts are not desirable when compared to permanent ones, by estimating a conditional wage gap of -1.7 log points. Then, we evaluate the sources of that wage penalty by combining a three way high-dimensional fixed effects model with the decomposition of Gelbach (2014), in which the three dimensions considered are the worker’s unobserved ability, the firm’s compensation wage policy and the job title effect. It is shown that the average worker with a fixed-term contract is less productive than his/her permanent counterparts, explaining -3.92 log points of the FTC wage penalty. Additionally, the sorting of workers into lower-paid job titles is also responsible for -0.59 log points of the wage gap. Surprisingly, we found that the allocation of workers among firms mitigates the existing wage penalty (in 4.23 log points), as fixed-term workers are concentrated into firms with a more generous compensation policy. Finally, following Figueiredo et al. (2014), we further control for the worker-firm match characteristics and reach the conclusion that fixed-term employment relationships have an overrepresentation of low quality worker-firm matches, explaining 0.65 log points of the FTC wage penalty.

Wage adjustments under extreme downward nominal wage rigidity

Using a rich and highly accurate dataset for Portugal spanning from 1986 to 2013, this paper analyzes the determinants of downward nominal wage rigidity, mainly focusing on macroeconomic factors. The data supports the hypothesis that recessionary periods alongside with low in ation contribute to a higher degree of wage rigidity, as measured by the incidence of nominal wage freezes. It is further highlighted how this lack of wage adjustments con- tributed to an increase in labor costs which culminated in a wage markup of 6-7%. This paper, thus seems to corroborate the argument that low in ation did exacerbated the downward in exibility of (real) wages after the Great Recession.

Sport-Specific Arbitration in Canada: A Qualitative Investigation of Four Athletes' Perceptions of the Fairness of the Process

This thesis explored Canadian high performance Athletes' perceptions of the fairness of the SDRCC sport-specific arbitral process. Leventhal’s (1980) model of procedural justice judgment was found to be an effective tool for exploring Athletes’ perceptions of the fairness of the process. Five of his six procedural justice antecedents: consistency, bias suppression, accuracy of information, representativeness, and ethicality influenced the Athletes’ perceptions of the fairness of the process. Emergent data also revealed that the Athletes’ perceptions of fairness were also influenced by three contextual factors and an additional antecedent of procedural justice. Efficiency of the process, inherent power imbalance between Athletes and NSOs, and the measurable effect of the process on personal and professional relationships differentiate sport-specific arbitration from most other processes of allocation. The data also indicated that the opportunity to voice one’s case was also an important determinant of the Athletes’ perceptions of the fairness of the process.

Wage Policy of Firms: an Empirical Investigation.

This paper analyzes the dynamics of wages and workers' mobility within firms with a hierarchical structure of job levels. The theoretical model proposed by Gibbons and Waldman (1999), that combines the notions of human capital accumulation, job rank assignments based on comparative advantage and learning about workers' abilities, is implemented empirically to measure the importance of these elements in explaining the wage policy of firms. Survey data from the GSOEP (German Socio-Economic Panel) are used to draw conclusions on the common features characterizing the wage policy of firms from a large sample of firms. The GSOEP survey also provides information on the worker's rank within his firm which is usually not available in other surveys. The results are consistent with non-random selection of workers onto the rungs of a job ladder. There is no direct evidence of learning about workers' unobserved abilities but the analysis reveals that unmeasured ability is an important factor driving wage dynamics. Finally, job rank effects remain significant even after controlling for measured and unmeasured characteristics.

Rank Regressions, Wage Distributions and the Gender Gap.

In this paper, we model the interactions between the distribution of male and female wages under the assumption that any change in the wage distribution of women must be offset by an opposite change in the wage distribution of men.

The Wage Rate and the Profit Rate in the Price of Production Equation: a New Solution to an Old Problem

The aim of this paper is to demonstrate that, even if Marx's solution to the transformation problem can be modified, his basic concusions remain valid.

Wage Flexibility and Contract Structure in Germany

In this paper, we look at how labor market conditions at different points during the tenure of individuals with firms are correlated with current earnings. Using data on individuals from the German Socioeconomic Panel for the 1985-1994 period, we find that both the contemporaneous unemployment rate and prior values of the unemployment rate are significantly correlated with current earnings, contrary to results for the American labor market. Estimated elasticities vary between 9 and 15 percent for the elasticity of earnings with respect to current unemployment rates, and between 6 and 10 percent with respect to unemployment rates at the start of current firm tenure. Moreover, whereas local unemployment rates determine levels of earnings, national rates influence contemporaneous variations in earnings. We interpret this result as evidence that German unions do, in fact, bargain over wages and employment, but that models of individualistic contracts, such as the implicit contract model, may explain some of the observed wage drift and longer-term wage movements reasonably well. Furthermore, we explore the heterogeneity of contracts over a variety of worker and job characteristics. In particular, we find evidence that contracts differ across firm size and worker type. Workers of large firms are remarkably more insulated from the job market than workers for any other type of firm, indicating the importance of internal job markets.