Exploring a Second Level of Parity: Suggestions for Developing an Analytical Framework for Forum Selection in Employment Discrimination Litigation

In April 1990 in Yellow Freight System, Inc. v. Donnelly, the United States Supreme Court resolved a split among the circuit courts and held that state and federal courts have concurrent jurisdiction over Title VII claims. This decision strengthens a presumption that state courts, as a whole, can be equal to their federal counterparts in adjudicating federal employment discrimination claims. It also further complicates the process of forum selection for employment discrimination litigants. Because plaintiffs now may present Title VII claims in state court, the doctrine of res judicata will bar any subsequent presentation of Title VII claims in federal court that the plaintiff could have raised in a prior state court action. Plaintiffs who wish to pursue related state claims in state court without risking removal may have to abandon their Title VII claims to protect their choice of forum.\u27 Consequently, the informed use of the forum selection process in making that choice is increasingly important. Now more than ever, litigants need an analytical framework to guide them in the forum selection process. Scholars and commentators consistently have debated the proper role of the state and federal courts in the adjudication of federal claims. One can trace the origins of this debate to the Framers of the Constitution In recent years this debate often has focused on the issue of parity: whether or not the state courts, as a whole, provide adequate and trustworthy forums for litigants seeking protection of federal rights.\u27 The parity debate raises issues significant to the determination of the proper roles of the federal and state courts in enforcing federal rights. Although no consensus has emerged, the continuing debate is likely to influence the allocation of judicial resources by judges and legislators alike. The Yellow Freight decision forces employment discrimination litigants and their attorneys engaging in the process of forum selection to confront many of the same issues raised by the parity debate. These issues, however, have a different significance for individual litigants confronted with a choice between state and federal forums. For litigants, the important inquiry is not whether state courts as a whole are as capable as their federal counterparts in protecting federal rights, but whether, in a given case, a particular state court or a particular federal court is more amenable to the claims or defenses litigants may raise. Thus, to be of value to individuals in developing a framework for forum selection, the parity debate must move to another level. Although the central question remains whether one forum is better than another, a pragmatic approach to forum selection requires an individualization of the parity debate

Introduction: Caring for the Nation--Current Issues in Health Care Reform

Health care reform is once again on the front burner of American politics. With health care costs in the United States rising at three times the rate of inflation and an increasing portion of the population falling through the cracks of the current health care delivery system,\u27 legislators, health care professionals, and the population at large now have little difficulty agreeing that the system is badly in need of reform. This consensus, however, falls apart when discussion turns to what needs to be fixed and how to fix it. Federal legislators currently have over twenty health bills pending before them, and state governments, tired of waiting for a consistently elusive federal solution, have begun seeking their own solutions to health care problems.\u27 While perhaps the current focus on health care reform is unsurprising in light of election year politics, there is compelling evidence that Americans are rightly concerned about the state of health care in this country. The United States is now one of only two major industrialized nations that have yet to implement some form of universal health care system for their citizens. Despite possession of the most advanced medical technology and the most highly skilled medical personnel in the world, the United States consistently rates well below other countries in life expectancy, infant mortality, and low birth weight.\u27 Rapidly rising costs and the growing number of uninsured and underinsured undoubtedly contribute to these gloomy statistics by limiting the access of many citizens to even basic health care.\u27 Administrative inefficiency, waste, and health care fraud compound the problem by needlessly consuming limited health care funds, both private and public. It is little wonder that the cry for reform has become so universal and so persistent