2. Channel individual and employer behavior in order to avoid dispute (i.e., encourage contract)

In addition to providing out-of-court mechanisms to resolve disputes, efforts should also be made to define rights in such a way that individuals will be encouraged to arrange their relationships so that disputes do not arise in the first place. In short, the law should encourage individuals to spell out their rights in explicit contracts, instead of waiting to resolve such disputes through litigation. For example, to the extent that you were to require that conditions of employment, such as wages and benefits, be in writing and signed by the parties, you would force employees to negotiate and determine those conditions prior to the commencement of the employment term. Disputes about conditions of employment would thus be more precise and occur less often. The parties, by being forced to confront the issues in a negotiating setting, would then have resolved many possible areas of dispute before they happen.

A more modest approach might be to limit the right to sue for wrongful discharge or other conditions of employment to instances where the right is stated in writing (in short, by applying the statute of frauds to employment contracts). Any writing might suffice to demonstrate a contractual right, regardless of whether it is signed or not. Thus, employer manuals and pamphlets and written evaluations could still provide contractual rights. By establishing such a rule of law, employees would be encouraged to demand that key employment rights be placed in writing. Employers would be better able to control the rights they grant their employees by avoiding the dangers of verbal contracts. Such a scheme would not reduce rights, but simply rechannel where the rights are formed, changing the forum from the courtroom to tile workplace negotiating table.

Another example of such rechanneling would be to grant special status to standards and determinations made in non-courtroom proceedings. For example, employers could be freed from product liability if their products met governmental standards, such as the pre-approval given drugs by the federal Food and Drug Administration after careful testing and review by experts. In such a case, governmental approval constitutes a contract with the manufacturer that includes freedom from outside liability. By giving such standards determinative status in litigation, the focus on the safety of products would shift from the thousands of individual injury cases in court to one forum where careful deliberation and expertise could be applied to the question of what is and is not defective. The safety concerns supposedly addressed by the litigation system would be just as well served, yet the amount of actual litigation would be dramatically reduced.