Cite as: 523 U. S. 866 (1998)
Breyer, J., dissenting
why the rule at issue here satisfies Hudson's requirements. If one needs an analogy, I would find it, not in consensual arbitration, but in court rules that require parties to try non-binding arbitration before they pursue a case in court. See, e. g., 28 U. S. C. §§ 651-658 (authorizing district courts to refer certain types of civil actions to arbitration); Alternative Dispute Resolution, Local Rules 2-3, 4-2 (ND Cal. 1998); see also B. Meierhoefer, Federal Judicial Center, Court-Annexed Arbitration in Ten District Courts (1990).
Second, the Court describes the Union's proposed "arbitration first" rule as an "extension of the discretionary exhaustion-of-remedies doctrine." Ante, at 875. But whether that particular doctrine offers legal justification in this case is beside the point. The "arbitration first" rule amounts to an elaboration of the obligations set forth in Hudson. Those obligations rested upon the substantive law that permits collection of agency fees interpreted in light of the competing demands of the First Amendment. Hudson decided that this law required the courts to craft a mandatory, nonbinding mechanism for speedy dispute resolution. Exhaustion principles did not prevent the Court from doing so. Why then should those principles prevent the Court from elaborating upon Hudson's requirements, by permitting a union to impose a reasonable "arbitration first" rule of the kind before us?
I note one additional matter. The Court's opinion refers to the "pilots . . . proceed[ing] at once in federal court." Ante, at 869. The Court does not decide, however, whether a federal court can await the conclusion of an expeditious arbitration before it proceeds, for example, with discovery. Ante, at 879, n. 6. Should it await arbitration's conclusion, the court would be able to take advantage of any settlement or narrowing of issues that the nonmandatory arbitration proceeding produced. Doing so would alleviate many of the concerns that I have expressed in this opinion. See supra, at 882-884.
885
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