Arpan Sura and Robert A. DeRise, both of Arnold & Porter, have written Conceptualizing Concepcion: The Continuing Viability of Arbitration Regulations. Here's the abstract: Section 2 of the Federal Arbitration Act (“FAA”) provides that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the […]
Category Archives: Arbitration
Nancy Welsh of Penn State has written Mandatory Predispute Consumer Arbitration, Structural Bias, and Incentivizing Procedural Safeguards, 42 Southwestern University Law Review 187 (2012). She presented the paper at the AALS annual conference. Here's the abstract: Within the past several decades, there has been an explosion in the creation, institutionalization and use of “alternative” dispute […]
by Deepak Gupta Along with the historic Voting Rights Act arguments this morning, the Supreme Court heard oral arguments in American Express v. Italian Colors — a major antitrust arbitration case that we've mentioned on the blog several times over the years (e.g., here and here). I've been serving as co-counsel for the plaintiffs/respondents in […]
Carolyn Dessin of Akron has written Arbitrability and Vulnerability, 21 Temple Political & Civil Rights Law Review, 349 (2012). Here's the abstract: Arbitration is cool. Everybody's doing it. In the eighty-five years since the passage of the Federal Arbitration Act, that seems to be the prevailing sentiment. Recent decades have seen the meteoric rise of […]
by Deepak Gupta The Arbitration Wars Meet the Recess Appointment Wars: Since its beginning, this blog has closely covered controversies over mandatory arbitration in consumer and employment contracts. More recently, we've been covering the constitutional controversy over the President's recess appointments to the CFPB and NLRB. On Tuesday, those two worlds officially collided when lawyers […]
by Deepak Gupta Since at least 2009, this blog has covered (e.g. here and here) the long-running saga of American Express v. Italian Colors, an antitrust dispute that raises fundamental questions about the limits of federal arbitration jurisprudence. The case, now before the Supreme Court, presents the question whether an arbitration clause should be enforced […]
Omri Ben-Shahar of Chicago has written Arbitration and Access to Justice: Economic Analysis. Here is the abstract: Mandatory arbitration clauses in consumer contracts are widely regarded as problematic because they limit consumer’s access to judicial forums, to fair procedures, and potentially to any kind of remedy. But rather than looking at consumers as a group, […]
Emanwel J. Turnbull has written Opting Out of the Procedural Morass: A Solution to the Class Arbitration Problem, forthcoming in the Widener L. Rev. Here's the abstract: American class actions are internationally regarded as a procedural form to avoid and widely criticized in the United States. They have been narrowed and restricted by U.S. statutes […]
Shauhin A. Talesh of Irvine has written How Dispute Resolution System Design Matters: An Organizational Analysis of Dispute Resolution Structures and Consumer Lemon Laws, 46 Law & Society Review (2012). Here's the abstract: This study demonstrates how the structure of dispute resolution shapes the extent to which managerial and business values influence the meaning and implementation of […]
David Korn and David Rosenberg of Harvard have written Concepcion's Pro-Defendant Biasing of the Arbitration Process: The Class Counsel Solution. Here's the abstract: By mandating that numerous plaintiffs litigate their common question claims separately in individual arbitrations rather than jointly in class action arbitrations, the Supreme Court in AT&T Mobility LLC v. Concepcion created a […]