I’ve been highlighting the academic winners of the CPR Awards with short summaries of the each award winner (past entries here, here, and here (link) Today, it’s the winner of the Joseph T. McLaughlin Original Student Article or Paper, which goes to an article or paper written by a student. This year’s winner is Samuel Rudolph Cole, a 3L at the University of Chicago, for his article Bargaining in the Shadow of the EFAA, which is to be published in the University of Missouri School of Law Journal on Dispute Resolution in 2025. Cole is a J.D. candidate (2025) at University of Chicago Law School. Congratulations Sam !
Historically, courts have viewed arbitration agreements contained in collectively bargained agreements differently than analogous agreements in the non-unionized workplace. Courts reviewed the former under Section 301 of the Labor Management Relations Act (LMRA) and the latter under the Federal Arbitration Act (FAA). However, Supreme Court cases including Wright and Pyett blurred what were formerly clear lines between the two frameworks. Into this unsettled environment, Congress introduced the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), a recent amendment to the Federal Arbitration Act (FAA).
This Article, entitled Bargaining in the Shadow of the EFAA, explores the origins of labor and commercial arbitration, the judicial erosion of their doctrinal separation, and the EFAA’s ambiguous drafting, which risks further conflating these distinct frameworks. It argues that applying the EFAA to CBAs would undermine the collective bargaining process and harm unionized workers by restricting their ability to negotiate efficient dispute resolution mechanisms. To resolve this ambiguity, the Article proposes two solutions: (1) courts should reaffirm the traditional distinction between labor and commercial arbitration, excluding CBAs from the EFAA’s reach, and (2) Congress should amend the EFAA to explicitly exempt collectively bargained arbitration agreements. By preserving unions’ ability to negotiate arbitration provisions, these solutions would uphold the foundational principles of labor law while ensuring fair and effective resolution of workplace disputes.
