Arbitration #

Law Journal And Academic Articles #

1. Alcolea, L. C. (2022). Arbitration and the Right to Have Your Day in Court: Meeting Again at the Turning of the Tide. Pepperdine Dispute Resolution Law Journal, 22(2), 539–580. https://digitalcommons.pepperdine.edu/drlj/vol22/iss2/6/

   Conclusion - Alcolea

   In conclusion, the message of this article is: Watch this space. Members of the US arbitration ecosystem, whether they be willing members such as businesses or unwilling members such as employees and consumers, have very much been on a wild ride in the last few decades and the recent decisions, new legislation, and changing behavior by all involved means that this is only going to continue in the future.

2. Gilles, M. E. (2023). Arbitration’s Unraveling (SSRN Scholarly Paper 4527841). https://doi.org/10.2139/ssrn.4527841

   Giles - Arbitration’s Unraveling

   The 21st century has been a bleak one for proponents of collective litigation. The hegemonic rise of class-banning arbitration provisions has thwarted workers and consumers across the legal landscape, as the FAA has grown into a super-statute, frozen in a 1920’s conception of individual claiming. But recent developments signal a thaw. Green shoots have appeared in Congress, which in 2022 amended the FAA for the first time in its history to exempt one important subset of litigation activity, possibly setting the stage for further rollbacks. The Supreme Court, meanwhile, has explicitly rejected the assumption, widely held by lower courts, that the promotion of arbitration is a “favored policy” warranting the application of special rules of construction and procedure. The implications of this clarification are profound and should, by all rights, remove from the coverage of the FAA all claims by workers engaged in interstate commerce, among other effects.

3. Glover, J. M. (2022). Mass Arbitration. Stanford Law Review, 74. https://review.law.stanford.edu/wp-content/uploads/sites/3/2022/09/Glover-74-Stan.-L.-Rev.-1283.pdf

4. Skanes, M. R. (2011). THE TRUTH BEHIND “FINAL AND BINDING” ARBITRATION: A STUDY OF VACATED ARBITRATION AWARDS IN THE NEW YORK APPELLATE DIVISION. Albany Law Review, 74(2). https://www.albanylawreview.org/article/69716-the-truth-behind-final-and-binding-arbitration-a-study-of-vacated-arbitration-awards-in-the-new-york-appellate-division

5. Ware, S. J. (n.d.). Vacating Legally-Erroneous Arbitration Awards.

6. Samra, H. J., & Ramachanderan, R. (n.d.). A Cure for Every Ill? Remedies for “Pathological” Arbitration Clauses.

   Samra - Cure for Every Ill

   As a consequence, parties must be cautious not only to thoroughly vet their draft arbitration agreements, but should also be as attentive as possible to legal developments that might render their arbitration agreements unenforceable in the future.

7. Jacobs, B. L. (n.d.). Often Wrong, Never in Doubt: How Anti-Arbitration Expectancy Bias May Limit Access to Justice. ACCESS TO JUSTICE, 62.

   This particular paper suggestions that arbitration may not be as bad as often stated. It deeply mistates the history of arbitration (for example it cites Keating for the basis of a ’national policy of arbitration’ - something the Court invented from whole cloth. Nonetheless, it makes some interesting points and is worth reading.

   Jacobs - Often Wrong - Conclusion Pull Quote

   Regardless of the “objective” reality of the fairness or lack thereof of arbitration, negative perceptions of the process already are “transform[ing] the reality faced by policy-makers”76 and influencing the development of the law regarding arbitration. For example, the AAA no longer will accept certain new consumer debt collection arbitration filings,77 and, as part of a settlement with the Office of the Minnesota Attorney General, the National Arbitration Forum will stop accepting or participating in the processing or administration of any new consumer arbitrations.

8. Rubenstein, M. (2012). Assignment of Labor Arbitration. St. John’s Law Review, 81(1), 42–76. https://scholarship.law.stjohns.edu/lawreview/vol81/iss1/6

   This is really about collective bargaining agreements and arbitration provisions therein and thus somewhat out of scope for this page.

   Rubenstein - Assignment of Labor Arbitration

   Stated somewhat differently, there should be a type of presumption, similar to that utilized under the Restatement (Second) of Contracts, in favor of assignment of labor arbitration and the right to appeal from arbitration absent express language in the collective bargaining agreement prohibiting it.

9. Hamielec, M. R. (2018). Class Dismissed: Compelling a Look at Jurisprudence Surrounding Class Arbitration and Proposing Solutions to Asymmetric Bargaining Power Between Parties. 92(3), 1227–1264.

   Hamielec - Class Dismissed - Conclusion

   Corporations view the gap in bargaining power between themselves and individuals as an opportunity to engage in an arbitrage of the law. With each edit, law firms strengthen arbitration provisions to survive courts’ skeptical analyses and handcuff claimants to an arbitrator’s largely unreviewable and peripherally biased decision.

   Note: some of the most practical options for what it is likely to pass congress for fixing the problems

10. Cain, R. M. (1988). Commercial Disputes and Compulsory Arbitration. The Business Lawyer, 44(1), 65–84. https://www.jstor.org/stable/40687165

    Cain - Commercial Disputes and Compulsory Arbitration - Conclusion

    Courts may feel vidually for their possible congressional in For this reason, amendment of the separat ties statutes, is t

11. Sternlight, J. R. (2005). Creeping Mandatory Arbitration: Is It Just? Scholarly Works, 57(280), 1631–1676.

    Pull Quote - Sternlight - Creeping Mandatory Arbitration

    …arbitration agreements were not used by U.S. businesses to require consumers, employees, franchisees, or other weaker parties to resolve disputes through private arbitration rather than in court. Instead, the use of arbitration was limited to business-to-business or management/union contexts. Indeed, to the limited extent that the possibility of such arbitration was considered by Congress in 1925, when it passed the FAA, those few who spoke on the issue made clear that they did not view such a use of arbitration as appropriate (pg 1636)`

12. Menkel-Meadow, C. (n.d.). Do the ‘Haves’ Come out Ahead in Alternative Judicial Systems?,: Repeat Players in ADR. 15.

    Menkel-Meadow - Do the ‘Haves’ - Conclusion

    In short, we think we know that the “‘Haves’ Come out Ahead” in ADR, as they do in litigation, but they may come out ahead in different ways or for different reasons. Therefore, as socio-legal scholars who have much to thank Marc Galanter for, it behooves the legal and social empiricists and reformers among us to collect the data we need so we can be more certain that the solutions we suggest will solve the problems that actually exist and not the ones we simply think exist. If the “‘Haves’ Come out Ahead” in both litigation and ADR, then where will we go next to achieve social justice in disputing?

13. Rosencrants, P. E. (2023). “Heads I win, tails you lose”: The End of Employers’ Exploitation of the Federal Arbitration Waiver Prejudice Requirement. MISSOURI LAW REVIEW, 87. https://scholarship.law.missouri.edu/mlr/vol87/iss4/11/

    See Morgan v. Sundance, Inc. 596 US _ (2022).

    Rosencrants - Heads I Win - Conclusion

    While it stopped short of providing a uniform waiver analysis, the Court began to level the playing field between employees and employers bound by arbitration agreements by abolishing the prejudice requirement in waiver analysis. Employers who require job applicants to agree to mandatory arbitration begin the relationship with an imbalance of bargaining power. Employers’ use, as in Morgan, of strategic delays in invoking arbitration wrongly disadvantages employees and undermines the attributes of arbitration that Congress sought to invoke when it enacted the FAA. Removing the prejudice requirement was an important step toward safeguarding employee rights.

14. Schwartz, D. S. (2016). Justice Scalia’s Jiggery-Pokery in Federal Arbitration Law. Minnesota Law Review: Headnotes, 49, 74–93. https://scholarship.law.umn.edu/headnotes/49

    Schwartz - Jiggery-Pokery - Conclusion

    Taken together, Justice Scalia’s major federal arbitration law opinions render unconscionability and public policy defenses to arbitration clauses virtually non-existent, while allowing corporate defendants to immunize themselves from class actions by the expedient of nesting a class action waiver in an arbitration clause. To achieve these results, Justice Scalia had to engage in a fair amount of jiggery-pokery on behalf of the long-lived five-Justice conservative bloc. One looking for principled conservative jurisprudence in Justice Scalia’s body of work should probably look elsewhere than his arbitration decisions. Justice Scalia abandoned his much-touted federalism principles early on, and eventually found in FAA cases an opportunity to transform arbitration agreements into “do-it- yourself tort reform.”83 While the phrase “jiggery-pokery” may well be long remembered, one can hope that Justice Scalia’s doctrinal jiggery-pokery in federal arbitration law will soon be overruled, gone and forgotten.

15. Schwartz, D. (2004). Correcting Federalism Mistakes in Statutory Interpretation: The Supreme Court and the Federal Arbitration Act. Law and Contemporary Problems, 67(1), 5–54. https://scholarship.law.duke.edu/lcp/vol67/iss1/2

    Schwartz - Correcting - Conclusion

    Southland and its progeny are the result of bad statutory interpretation and even worse federalism. The historical evidence demonstrates that Congress never intended to preempt state law regulating arbitration agreements. To the contrary, the best interpretation of the FAA is that, by virtue of its savings clause, federal courts should normally be bound by state-law restrictions on arbitration enforcement. The evidence against Southland is so strong that it seems that no one defends it on the merits anymore: Southland lives on only because of the Court’s reluctance to overrule a statutory interpretation precedent, its desire to spread arbitration far and wide, or a combination of the two.

16. Gilles, M. (2016). The Day Doctrine Died: Private Arbitration and the End of Law. UNIVERSITY OF ILLINOIS LAW REVIEW, 2016(2).

    Gilles - Doctrine - Conclusion

    It is hard to imagine that this game of high stakes musical chairs would have been a welcome outcome to the Reagan anti-lawsuit reformers. Much as the arbitration revolution does reduce lawsuits (the primary goal of the anti-lawsuit movement), it carries an externality that the reformers’ carefully crafted legislative agendas did not: namely, the cessation of common law development in entire areas of the law. This externality, all else being equal, is as likely to prejudice the interests of conservatives as it is liberals; it all depends on where you are when the music stops.

17. Colvin, A. (2011). An Empirical Study of Employment Arbitration: Case Outcomes and Processes. https://hdl.handle.net/1813/75272

    Colvin - case outcomes - conclusion

    On the closely debated issue of repeat player effects in arbitration, this study finds strong evidence of a repeat employer advantage and, more problematically, evidence of an advantage to employers in repeat employer-arbitrator pairings. The existence of an employer advantage in repeat employer-arbitrator pairings may reflect arbitral bias in some of these cases.

18. Joshi, H. (2023). You Have Got to Be Keating Me: Why the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act Is a Good Start. 2023.

    Joshi - Keating Me - conclusion

    EFASASHA is incomplete, but a good start. The FAIR Act provides a strong potion against compelled arbitration. Overturning Keating would return the power to determine contract common law to the states. However, some of those states may have an FAA equivalent, still forcing employees into arbitration against their employer. An Act that completely does away with forced arbitration, and which has pre-emptive effect, is the best remedy.

19. Stone, K. V. W. (2023). Arbitration—From Sacred Cow to Golden Calf: Three Phases in the History of the Federal Arbitration Act. 23.

20. Cohen, J. H., & Dayton, K. (1926). The New Federal Arbitration Law. Virginia Law Review, 12(4), 265–286. https://doi.org/10.2307/1065471

21. Ryan Schimmel. (2023). A Real Right to Litigate: Dismantling Mandatory Arbitration and the Restoring Justice for Workers Act. SETON HALL LEGISLATIVE JOURNAL, 47.

22. Drahozal, C. (2006). Is Arbitration Lawless. Loyola of Los Angeles Law Review, 40(1), 187. https://digitalcommons.lmu.edu/llr/vol40/iss1/5

    This is one of the stronger “pro-arbitration” note so far. Even so, it merely states that there is “little emperical evidence” that arbitrators don’t follow the law and has other fairly weak claims.

    Drahozal - Lawless - Conclusion

    Clearly more research is needed to evaluate the extent to which arbitration actually is “lawless.” The research to date, however, suggests that perhaps arbitration is less lawless than is sometimes feared.

23. Levinson, A. R., O’Connor, E. O., & Skiba, P. M. (2021). Is Labor Arbitration Lawless? Florida State University Law Review, 48(2), 443. https://ir.law.fsu.edu/lr/vol48/iss2/4

24. Xu, A. (2022). Reconsideration of Forced Arbitration in Data Privacy Legislation.

25. Jeffrey Stempel. (2007). Keeping Arbitrations from Becoming Kangaroo Courts. Nevada Law Journal, 8(1). https://scholars.law.unlv.edu/nlj/vol8/iss1/12

    Kangaroo - Stempel - Conclusion

    The Supreme Court’s jurisprudential commitment to arbitration remains strong even if its reasoning and appreciation of reality remains open to criticism. Within the fait accompli world of law and politics, we are unlikely to see any complete about-face or substantial curtailment of the pro-arbitrability doctrine the Court has constructed. The realistic response of consumer advocates and other arbitration skeptics should be a focus on arbitral impartiality and adherence to substantive law rather than undue resistance to arbitration clause enforcement. If these factors are present, the U.S. dispute resolution system can be reasonably confident that arbitrations will not become kangaroo courts. To the extent these traits are lacking, arbitration skeptics will continue to have substantial grounds for continuing to criticize the modern world of courtenforced, mass-standardized arbitration.

26. Reginald Alleyne. (2003). Arbitrators’ Fees: The Dagger in the Heart of Mandatory Arbitration for Statutory Discrimination Claims. 6.

27. Deepak Gupta & Lina Khan. (2017). Arbitration as Wealth Transfer. Policy Review, 35, 499–520.

28. Harry C. Katz, David Sherwyn, & Paul Wagner. (2023). Congress Was Wrong: Arbitration Is More Plaintiff-Friendly than Litigation, and We Can Make It Even More Just. ABA Journal of Labor and Employment Law, 37, 309. https://www.americanbar.org/content/dam/aba/publications/aba_journal_of_labor_employment_law/v37/number-3/jlel-vol37-no3-3.pdf

    This is one of the stronger “pro-arbitration” notes. Even so, it proposes some radical reforms and does not defend the current system.

Position Papers or Private Groups #

1. Katherine V.W. Stone & Alexander J.S. Colvin. (2015). The arbitration epidemic: Mandatory arbitration deprives workers and consumers of their rights (Briefing Paper 414). Economic Policy Institute. https://www.epi.org/publication/the-arbitration-epidemic/

2. Colvin, A. J. S. (2018). The growing use of mandatory arbitration (144131; pp. 1–17). Economic Policy Institute.

   Colvin - The growing use of mandatory arbitration - Conclusion

   Mandatory employment arbitration has expanded to the point where it has now surpassed court litigation as the most common process through which the rights of American workers 12 are adjudicated and enforced. The rise of this problematic practice needs to be given much greater attention in employment policy discussions. If the Supreme Court does not reverse its trend of supporting mandatory arbitration and instead put the brakes on enforcement of class action waivers in its upcoming decision, it will be necessary for Congress to act in order to ensure that American workers have an effective means of enforcing the rights they have been promised.

3. Linda J. Demaine & Deborah R. Hensler. (2004). ‘Volunteering’ to Arbitrate through Predispute Arbitration Clauses: The Average Consumer’s Experience | RAND. RAND Corporation. https://www.rand.org/pubs/reprints/RP1156.html

   RAND - The Average Consumer’s Experience

   In summary, the evidence to dates suggests that there is little reason to believe that consumer arbitration is—in the conjecture of the Court—only another forum.

4. Myriam Gilles. (2024, April 8). Small Print, Big Impact: Examining the Effects of Forced Arbitration. https://www.judiciary.senate.gov/imo/media/doc/2024-04-09_-_testimony_-_gilles.pdf

Reports #

1. Wells Fargo and Forced Consumer Arbitration. (2017). Level Playing Field. http://fairarbitrationnow.org/wp-content/uploads/LPF-Wells-Fargo-Report-September-2017-Update.pdf
2. Stacy Puente. (2023). Mandatory Arbitration among SEC-Registered Investment Advisers. U.S. Securities and Exchange Commission | Office of the Investor Advocate.

Blog Post #

1. https://www.sheppardmullin.com/media/publication/1909_Class%20Actions_Arbitration%20Agreements%20and%20Class%20Action%20Waivers%20_Federal,%20CA_.pdf
2. https://civilrights.org/resource/support-h-r-963-the-forced-arbitration-injustice-repeal-fair-act/#
3. Leonard H. Sansanowicz. (2022, September). Arbitration hypnosis. 2022 September. https://www.advocatemagazine.com/article/2022-september/arbitration-hypnosis
4. https://www.advocatemagazine.com/article/2023-september/paga-and-arbitration-from-case-viking-river-cruises-v-moriana-case-to-case-adolph-v-uber-case-who-s-left-standing
5. Patrick J. Bannon, Anthony S. Califano, Molly C. Mooney, & John Ayers-Mann. (n.d.). Are Arbitration Agreements Fair and Consistent With Company Culture? Seyfarth Shaw - Are Arbitration Agreements Fair and Consistent With Company Culture? Retrieved 16 September 2023, from https://www.seyfarth.com/news-insights/are-arbitration-agreements-fair-and-consistent-with-company-culture.html
6. Patrick J. Bannon, Anthony S. Califano, Molly C. Mooney, & John T. Ayers-Mann. (n.d.). Can Arbitration Agreements Protect Employers Against Class Actions? Seyfarth Shaw - Can Arbitration Agreements Protect Employers Against Class Actions? Retrieved 16 September 2023, from https://www.seyfarth.com/news-insights/arbitration-can-arbitration-agreements-protect-employers-against-class-actions.html
7. ContractsProf Blog: Coinbase Users’ Complaints About Hacked Accounts Sent to Arbitration. (n.d.). ContractsProf Blog. Retrieved 17 September 2023, from https://lawprofessors.typepad.com/contractsprof_blog/2023/09/coinbase-users-complaints-about-hacked-accounts-sent-to-arbitration.html
8. Peterson, P. A. L., Morgan. (2023, February 17). Court Obliterates California’s Anti-Arbitration Law. California Employment Law Update. https://calemploymentlawupdate.proskauer.com/2023/02/ninth-circuit-panel-changes-its-mind-and-obliterates-californias-anti-mandatory-employment-arbitration-law/
9. Darin Ranahan. (n.d.). Mandatory Pre-Dispute Arbitration Agreements and Your Rights: A Post-Concepcion Primer. Retrieved 25 August 2023, from https://www.sl-employmentlaw.com/mandatory-pre-dispute-arbitration-agreements-and-your-rights-a-p.html
10. Rachel Thorn. (2021, March 11). Drafting Arbitration Clauses in IP Agreements. World Trademark Review. https://www.worldtrademarkreview.com/global-guide/the-guide-ip-arbitration/2021/article/drafting-arbitration-clauses-in-ip-agreements
11. Nancy Niki Lubrano & Brian E. Cole II. (n.d.). CDF Wage and Hour Task Force – Monthly Tips. CDF Labor Law: California Labor & Employment Law Blog. Retrieved 25 January 2024, from https://www.callaborlaw.com/entry/cdf-wage-and-hour-task-force-monthly-tips-february-2023
12. Donna Ballman. (2018, April 13). Are You A Liar? Arbitration Is The Forum For You. Screw You Guys, I’m Going Home. http://employeeatty.blogspot.com/2018/04/are-you-liar-arbitration-is-forum-for.html
13. Emil. (2023, April 21). Arbitration Agreements: Don’t Sign Pre-Dispute Arbitration Agreements - CANHR. California Advocates For Nursing Home Reform. https://canhr.org/arbitration-agreements-dont-sign-agreements/, https://canhr.org/arbitration-agreements-dont-sign-agreements/
14. Dominic Charles. (2023, February 28). What Would the End of McCarran-Ferguson Mean for Arbitration? The Arbitration Brief. https://thearbitrationbrief.com/2023/02/28/what-would-the-end-of-mccarran-ferguson-mean-for-arbitration/

Books #

1. Chapter 1 Preliminary Issues. (2020). In David Seligman & Karla Gilbride, Consumer Arbitration Agreements: Consumer Law Practice (8th ed.). National Consumer Law Center. https://library.nclc.org/book/consumer-arbitration-agreements/12a14-agreement-applicable-dispute-and-both-parties

General Legal #

1. Dell C. “D C. " Toedt III. (2017, April 20). Arbitrator Style and Preferences — My Questionnaire Responses. On Contracts. https://www.oncontracts.com/arb-prefs/
2. Jonathan Sheldon. (2023, July 17). Overcoming the Latest Supreme Court Arbitration Decision | NCLC Digital Library. https://library.nclc.org/article/overcoming-latest-supreme-court-arbitration-decision#content-1
3. CFPB Study Finds That Arbitration Agreements Limit Relief for Consumers. (2015). [Fact sheet]. Consumer Financial Protection Bureau. https://files.consumerfinance.gov/f/201503_cfpb_factsheet_arbitration-study.pdf

Arbitration Provider Rules #

1. Employment Arbitration Minimum Standards | JAMS Mediation, Arbitration, ADR Services. (2009, July 15). https://www.jamsadr.com/employment-minimum-standards/
2. Consumer Arbitration Minimum Standards | JAMS Mediation, Arbitration, ADR Services. (2009, July 15). https://www.jamsadr.com/consumer-minimum-standards/
3. Consumer Minimum Standards | JAMS Mediation, Arbitration, ADR Services. (2020, February 13). JAMS. https://archive.is/lAHgf

Definitions #

1. Kangaroo Court—Black’s Law Dictionary—Ninth Edition. (2009). In Bryan A. Garner (Ed.), Black’s Law Dictionary (Ninth Edition, p. 409). WEST - Thomson Reuters.

Letters #

1. Myriam Gilles. (2021, February 9). Testimony Before the House Committee on the Judiciary Subcommittee on Antitrust, Commercial, and Administrative Law [Letter to David Cicilline]. https://docs.house.gov/meetings/JU/JU05/20210211/111171/HHRG-117-JU05-Wstate-GillesM-20210211.pdf

Class Actions #

Law Journal And Academic Articles #

1. Scheuerman, S. B. (2009). Due Process Forgotten: The Problem of Statutory Damages and Class Actions. Missouri Law Review, 74.
2. Fitzpatrick, B. T. (2017). Justice Scalia and Class Actions. Notre Dame Law Review, 92, 1977. https://scholarship.law.vanderbilt.edu/faculty-publications/586

Background Reading #

This is a selection of relevent reading without directly opining on arbitration (or class actions):

1. Marc Galanter. (1974). Why the ‘Haves’ Come out Ahead: Speculations on the Limits of Legal Change. Law & Society Review, 9(1), 95–160. https://doi.org/10.2307/3053023