Professor Paul Kirgis has posted a new essay entitled “The Roberts Court vs. the Regulators: Arbitration’s Next Battleground.” It is the lead article in vol. 10, issue 3 of the Mayhew-Hite Report, the online journal of the Ohio State Journal on Dispute Resolution. Here is a brief excerpt:
Over the past three decades, the Supreme Court has taken a series of steps having the design or effect of restricting access to judicial process. This “disadjudication” project has proceeded along three tracks: 1) with respect to its own docket, the Court has dramatically reduced the number of cases it decides each year; 2) in the criminal area, the Court has cut way back on access to the federal courts through habeas corpus; and 3) in the civil area, the Court has simultaneously erected barriers to litigation by heightening pleading standards and expanded the scope of arbitration to suck more and more claims out of courts at both the federal and state levels.
For the Rehnquist Court, the disadjudication project at times seemed motivated primarily by a desire to clear judicial dockets. The Roberts Court appears to have a more ambitious agenda, particularly when it comes to arbitration. It has almost always sided with the Chamber of Commerce in business cases, and the Chamber wants its members to have control over the processes used to ensure that they comply with the law. The Court has enthusiastically complied. Through a string of decisions, most recently CompuCredit Corp. v. Greenwood, 131 S. Ct. 2874 (2011)(upholding arbitration of claims under Credit Repair Organizations Act) and AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011)(upholding class waiver in arbitration agreement), the Court has encouraged companies to push their consumers and employees into arbitration, placing the enforcement of both federal and state laws in private hands and allowing companies to opt out of class actions entirely in many contexts.
With the states and the lower federal courts unable to limit the scope of pre-dispute arbitration agreements or preserve class actions, the next arbitration battleground will pit the Supreme Court’s conservative majority against federal agencies staffed by Democratic appointees seeking to use regulation to slow the arbitration juggernaut. Two recent agency decisions and a new court ruling upholding a third have placed the agencies squarely in opposition to the Court on the permissible scope of arbitration agreements and the effect of class waivers. These agencies are, in effect, telling the courts to reopen the doors and start hearing cases. The result is a through-the-looking-glass moment in which agencies defend rights to court adjudication against incursions by the Supreme Court.
You can find the full essay here.
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