Alexi Pfeffer-Gillet of Washington and Lee has written From Mutual Aid to Batched Plaintiffs: Arbitration’s Collective Roots and Procedural Future, 76 Emory Law Journal (2026). Here’s the abstract:
Arbitration is spinning out of control. The seemingly innocuous private alternative to court has for decades been the primary battleground for consumers and employees with widespread claims against companies. What was once a class-action loophole for defendants became a cudgel for digital-age plaintiffs filing thousands of “mass arbitration” claims. Now, defendant-companies have begun crafting rules that “batch” individual plaintiffs into a single, consolidated proceeding. These batching rules are convoluted, onesided, and at times downright incomprehensible. And legal fights over their enforceability are just beginning.
Courts, litigators, and scholars have largely treated arbitration enforcement as a contractual matter and therefore focused on contractual defenses. But contract law has never been enough to protect consumers and employees as companies continue moving the goalposts by adopting increasingly oppressive terms. But there is hope in procedure. This Article argues that rules governing procedural joinder in court provide a roadmap for safeguarding collective arbitration proceedings. To do so, it connects modern corporate arbitration under the Federal Arbitration Act (FAA) with labor arbitration dating back to the 1800s. Though generally treated as distinct legal areas, both labor-negotiated and business-imposed arbitration reflect a struggle over collective action by plaintiffs against corporate abuses.
Batched arbitration represents a new frontier of corporate efforts to disempower meaningful collective action by consumers and employees. Labor arbitration provides minimal levels of fairness because its terms are worked out through collective bargaining, which consolidates individual employees’ power into arms-length union negotiations with employers. And in court, procedural rules governing class actions and multi-district litigation build in protections for individual parties. But batched arbitration lacks both the up-front negotiations of union collective bargaining and the procedural safeguards of joinder devices in court. Despite purporting to adjudicate the simultaneous claims of thousands of individuals, batched arbitration has so far been dictated almost entirely by the whims of defendant-companies that draft the arbitration clauses and select their preferred arbitrator. The stakes of batched arbitration are too high and the potential deprivations of plaintiffs’ due-process rights too great, though, for this to continue unchecked. Instead, this Article lays out new procedural protections that will bolster arbitration’s integrity in resolving mass disputes while preserving its advantages of speed and informality.
