That's the name of this article by law professor Hiro Aragaki. Here's the abstract:
Recent, game-changing Supreme Court decisions on arbitration such as American Express v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013), and AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), have had far reaching implications for civil procedure and the future of class actions. These decisions are a product of what the author refers to as the “contract model” of the Federal Arbitration Act (FAA). Heretofore largely unquestioned, the contract model posits the FAA’s original purpose as the promotion of private ordering in dispute resolution free from state regulation. The model has accordingly enabled courts and commentators to claim that the FAA requires arbitration agreements to be enforced strictly “according to their terms,” in willful blindness to the way those agreements might compromise procedural fairness (for example, by precluding class-wide relief). This paper argues that the contract model is historically inaccurate. It will show that the FAA’s intent was never to elevate freedom of contract and commercial expediency over concerns about procedural integrity and justice; to the contrary, the FAA was intended to provide a better procedure compared to what the courts could offer circa 1925. It was in this way a natural outgrowth of then-prevailing efforts at procedural law reform spearheaded by figures such as Roscoe Pound and Yale Law School Dean Charles E. Clark — efforts that eventually culminated in the Federal Rules of Civil Procedure in 1938. Like the Federal Rules, therefore, the FAA lays claim to an important yet widely overlooked procedural reform pedigree. hese insights lead the author to propose a “procedural reform” model of the FAA, one that is both more consistent with the statute’s original intent and more adept at answering the difficult questions that confront arbitration law in the age of “contract procedure.” The author considers two recent examples from the Court’s 2012 Term to illustrate.
