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52 U. Louisville L. Rev. 497 (2014)
Procedural Predictability and the Employer as Litigator: The Supreme Court's 2012-2013 Term
Scott R. Bauries*
Abstract

In this contribution to the University of Louisville Law Review’s Annual Carl A. Warns Labor and Employment Institute issue, I examine the Supreme Court’s labor and employment-related decisions from the October Term 2012 (OT 2012). I argue that the Court’s decisions assisted employers as litigators—as repeat players in the employment dispute resolution system—in two ways. First, the Court established simple contract drafting strategies that employers may use to limit their exposure to employment claims. Second, the Court adopted bright-line interpretations of employment statutes. Both forms of assistance served a formalist interest in what I term “procedural predictability”—enhanced employer predictability and control of both the duration and costs of resolving employment disputes.

* Robert G. Lawson Associate Professor of Law, University of Kentucky. I would like to thank the organizers of the 30th Annual Carl A. Warns, Jr. Labor & Employment Institute, hosted by the Louis D. Brandeis School of Law at the University of Louisville for inviting me to speak in June 2013, and the editors of the University of Louisville Law Review for inviting me to contribute to this issue.