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 […]
Category Archives: Arbitration
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 […]
An 11-judge en banc panel of the Ninth Circuit heard oral argument this week in Kilgore v. Keybank, an important consumer arbitration case. Kilgore presents the question whether the Federal Arbitration Act and the Supreme Court's decision in AT&T v. Concepcion require courts to enforce arbitration clauses even when they would block consumers from pursuing […]
Richard Frankel of Drexel has written The Arbitration Clause as Super Contract. Here's the abstract: It is widely acknowledged that the purpose of the Federal Arbitration Act was to place arbitration clauses on “equal footing” with other contracts. Nonetheless,federal and state courts have placed arbitration clauses on a pedestal by creating special interpretive rules for […]
Here (login required). An excerpt: Likewise, there was initially deep skepticism inside the banking industry about the CFPB's arbitration study, and there is still a belief among industry insiders that the agency's research is likely to lead to new regulations. * * * But over the last few months, industry observers have been relatively pleasedwith they […]
Here. Some highlights: Of the 92 financial institutions studied, 43 percent contain mandatory binding arbitration clauses. This number increases to 47 percent when considering only banks, because none of the credit unions studied include an arbitration clause in their account agreements. * * * The larger the financial institution, the more likely an account agreement will […]
David Horton of UC Davis has written Federal Arbitration Act Preemption, Purposivism, and State Public Policy, 101 Georgetown law Journal (2013). Here's the abstract: The relationship between the Federal Arbitration Act (“FAA”) and state public policy has long been unsettled. According to some judges, scholars, and litigants, the FAA precludes courts from invalidating arbitration clauses […]
One of things that bothers opponents of binding pre-dispute mandatory agreements in consumer contracts is that often they don't seem like agreements at all. In most cases, the arbitration clauses are buried in take-or-leave-it contracts that the consumer doesn't read (and sometimes has little opportunity to read). Arbitration opponents sometimes say that contracts of adhesion […]
Myriam E. Gilles of Cardozo has written Killing Them with Kindness: ‘Consumer-Friendly’ Arbitration Clauses after AT&T Mobility v. Concepcion, forthcoming in Notre Dame Law Review. Herer’s the abstract: In AT&T v. Concepcion, the Supreme Court struck California’s so-called “Discover Bank rule” – a judge-made rule providing that arbitration agreements attended by class action waivers are […]