Class actions and arbitrations have existed since the United States’ inception. Since the mid-twentieth century, both Congress and the U.S. Supreme Court have helped arbitration blossom from litigation’s overshadowed alternative to a prominent means of resolving disputes. Soon, the commercial industry proceeded to incorporate arbitration provisions in their consumer and employment contracts. That way, when a dispute arose between the business and a person, the business would arbitrate with claimants individually. Plaintiffs’ attorneys who favored collective action proceedings like class actions, however, pushed for courts’ allowance of class arbitration—a class proceeding conducted within an arbitration’s confines.
Corporations litigated such class arbitrations’ legitimacy; their efforts are catalogued in a series of U.S. Supreme Court challenges that started in the early 2000s and continue to the present day. In many instances, these seemingly mundane cases resulted in sharply divided holdings by the Court’s justices; most notable of these were AT&T Mobility, LLC v. Concepcion and American Express Co. v. Italian Colors Restaurant, where the Court upheld individual arbitration provisions in pre-dispute contracts, and foreclosed plaintiffs’ access to class arbitrations and class actions in many contractual contexts.
This Note begins by summarizing the jurisprudential stance presently assumed by the Supreme Court in cases addressing arbitration provisions. It subsequently outlines the kaleidoscopically variant viewpoints on arbitration clauses from legal scholars, large law firms, and media outlets. Finally, the Note posits several solutions to the growing problem many individuals face when they enter into some of the most routine contracts of everyday life: the foreclosure of their ability to proceed as a class in a collective action against a plaintiff and effectively redress their grievances.
Matthew R. Hamielec,
Class Dismissed: Compelling a Look at Jurisprudence Surrounding Class Arbitration and Proposing Solutions to Asymmetric Bargaining Power Between Parties,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol92/iss3/24