Category Archives: Legal Philosophy

SCOTUS and the Mandatory Arbitration Revolution: Part 7/7 (Works Cited)

Works Cited

American Arbitration Association (AAA). “Costs of Arbitration.” Consumer Arbitration Rules (published February 21, 2018, accessed March 19, 2018): https://www.adr.org/sites/default/files/Consumer_Fee_Schedule.pdf.

Aschen, Noah. “Tearing Down the Wall Protecting Mandatory Arbitration: A Critical Evaluation of Mandatory Arbitration Clauses in Consumer Contracts.” Dispute Resolution Journal 71:3 (2016), 55-75.

Barnes, Lauren G. “How Mandatory Arbitration Agreements and Class Action Waivers Undermine Consumer Rights and Why We Need Congress to Act.” Harvard Law & Policy Review 9:2 (2015), 329-354.

Berger, Klaus Peter. “Vynior’s Case, 8 Co. Rep. 81 b. et seq. (1609).” Translex (published March 01, 2016 and accessed February 18, 2018): https://www.trans-lex.org/801200/_/vyniors- case-8-co-rep-81-b-et-seq-/.

Bureau of Justice Statistics. “Civil Bench and Jury Trials in State Courts: 2005.” Publications and Products (published 2005, accessed February 13, 2018): http://www.bjs.gov/index.cfm?ty=pbdetail&iid=369.

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SCOTUS and the Mandatory Arbitration Revolution: Part 6/7 (Strong Suggestions for Improvement)

The FAA, Judicial Activism, and their Implications for Access Justice

But for all of this discussion about the empirical data concerning the utility and fairness of mandatory arbitration, a more serious and two-pronged, objection can be raised, one which combines the well-known concept of ‘judicial activism’ with the relatively new methodology to legal studies known as ‘access justice.’ In what follows, I will describe the Supreme Court’s judicial activism within the context of the FAA as well as its implication for access justice, ultimately arguing that the Supreme Court is causally responsible for mandatory arbitration increasingly becoming a hybrid institutional/financial barrier to an individual’s proper access to justice.

Judicial activism occurs, most broadly, whenever a judge rules for or against a particular decision based predominantly, if not solely, on their own political perspectives and experiences. For instance, instead of ruling impartially in a court case involving a relatively straightforward case of business fraud and negligence, this hypothetical judge may, instead, rule in favor of the business because he owns stock in it or they offered him a bribe or he just believes that businesses should inherently have more governmental protection than consumers.

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SCOTUS and the Mandatory Arbitration Revolution: Part 5/7 (Actual Disadvantages of Arbitration)

Disadvantages of Arbitration (MACs/CABs)

Despite the sincerity with which they are held, advocates of mandatory arbitration are entertaining demonstrably false and ultimately misguided views. For some of the aforementioned benefits of arbitration, there is significant empirical evidence to the contrary. In discussing the disadvantages of mandatory arbitration for consumers and employees, I will focus broadly on cost, flexibility, privacy/confidentiality, and finality. The advantage of time/duration that arbitration has over litigation withstands scrutiny; on average litigation does, in fact, take longer from beginning to end than arbitration and must be conceded.1

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SCOTUS and the Mandatory Arbitration Revolution: Part 4/7 (Supposed Advantages of Arbitration)

Advantages of Mandatory Arbitration

Mandatory arbitration has often been praised as an effective decision to help eliminate much of the bloat occurring within the U.S. state and federal legal systems. According to its advocates, mandatory arbitration has several advantages over litigation which include (1) duration of time, (2) overall costs, (3) flexibility, (4) privacy/confidentiality, and (5) finality. The proclaimed successes of arbitration that have been derived from these advantages make it ultimately worth preserving and protecting. Advocates are thus ultimately supportive of the trend of Supreme Court rulings on arbitration.1

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SCOTUS and the Mandatory Arbitration Revolution: Part 3/7 (Current Legal Precedents)

The Supreme Court’s Current Interpretation of the FAA

From the year 2000 until 2018, there have been over 10 Supreme Court cases involving arbitration, many of which included extended discussion about mandatory arbitration. In order to better understand the evolution of the Supreme Court’s increasingly broad interpretation of the FAA, and its expanded use of mandatory arbitration, it will help to have a brief summary of the most recently decided cases and what they mean for consumers/employees. These Supreme Court cases are AT&T Mobility v. Concepcion, 563 U.S. 333 (2011), American Exp. Co. v. Italian Colors Restaurant, 667 F. 3d 204 (2013), and DirecTV v. Imburgia, 577 U.S. ___ (2015).

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SCOTUS and the Mandatory Arbitration Revolution: Part 2/7 (Historical Context)

A Brief History of (American) Arbitration

European Roots and Colonial Growth

Legal scholar Lauren G. Barnes points out that arbitration initially developed among members of the merchant class during the medieval period in Europe. Arbitration then took place almost solely among members of the merchant class. Considering that merchants were often traveling between fairs, in different towns and regions no less, in order to conduct business affairs with one another, they needed an efficient way to resolve disputes that arose from their recurring economic transactions. This dispute resolution process needed to do its job quickly and “in accordance with customary norms that merchants respected.”1 As a result, an adversarial court system in which the business relationship between the two parties could be severely, even permanently, damaged would not suffice for this purpose. Rather, a non-legal, yet still judiciously warranted system would be preferable.

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SCOTUS and the Mandatory Arbitration Revolution: Part 1/7 (Intro)

Though we may not be entirely aware of it, a tremendous amount of our economic and financial transactions as consumers and/or employees, especially with regard to any disputes about those goods/services/employment, cannot be litigated in a court of law if we have willingly signed their contracts and agreed to the terms/conditions.1 This legal inability has been created by the passage and continued enforcement of the Federal Arbitration Act (FAA) of 1925. Since its inception, many potential disputes involving those aforementioned transactions and relationships have been governed by mandatory arbitration.2

So just how widespread is mandatory arbitration? Legal scholar Jeremy Senderowicz remarks that mandatory arbitration clauses (MACs) and class action bans (CABs), along with their variations, are now standardly included in “banking, insurance, health care, and communication service contracts, as well as arrangements for the sale or lease of consumer goods.”3 Another scholar adds to that same list contracts involving “housing, national parks, patents, disaster relief, and telecommunications.”4 Yet MACs/CABs are not only applicable to consumers. Once we involve the number of businesses who use MACs/CABs to regulate relationships with their own employees, that nearly ubiquitous reach grows much more. For instance, one published academic study from 2008 asserts that during the year “a quarter or more of all non-union employees in the US,” more than 30 million employees, had agreed to mandatory arbitration in some form or another.5 Given that the use of mandatory arbitration has been increasing steadily over time, it is safe to say that this number of employees directly affected by MACs/CABs in 2018 is even higher.6

Yet, this ubiquity is not the only reason that the prevalence of MACs/CABs is remarkable. What’s more is that most of the fundamental changes that have occurred within the realm of arbitration and its relationship with the Federal Arbitration Act (FAA)7 have taken place only over the past 30 or so years. From about 1980 until 2015, there were 25 Supreme Court cases that involved arbitration, all of which expanded the scope and degree of the FAA’s jurisdiction and which have, collectively, enforced the use of MACs/CABs in various circumstances.

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A Summary (of the first portion) of “Frontiers of Justice” by M. Nussbaum

     Martha Nussbaum sets out in “Frontiers of Justice” to challenge the Social Contract tradition, the current paradigm in political philosophy insofar as it relates to theories of justice, by defending her own approach which she refers to as the “capabilities approach.” She begins by describing the historical development of the Social Contract tradition, focusing on certain writings of philosophers such as Hobbes, Locke, Hume, Kant, and most recently, John Rawls.

After briefly describing how the Social Contract tradition has come to exist in its contemporary form following the influences of John Rawls, Nussbaum levels some very strong criticisms against this philosophical tradition. In particular Nussbaum focuses on how proponents of the Social Contract tradition have (not) responded to the needs and interests of disabled individuals, the global community/nationality, and non-human species.

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Criticisms of the Use of the ESD Doctrine in Kennedy v. Louisiana (2008)

The most commonly raised criticism against the national consensus test of the ESD doctrine is that it constitutes an ongoing saga of judicial activism. Judicial activism occurs when a judge/justice upholds his or her own political, legal, religious, economic, or other beliefs contra society, thereby substituting the objectivity of existing laws for the subjectivity of personal preferences. Some may not feel that judicial activism is all that subversive. But judicial activism not only forces the judge/justice’s will on the people, but also it can greatly limit the legislative branch’s ability to function. The blurring of judicial and legislative lines can result in political stalemate, voter apathy, and a general distrust of government. Kimberly Bliss comments that under a democratic system “legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people” since the former has more contact with the people and has, in theory, been elected by the voters (1334).

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Kennedy v. Louisiana (2008) – US Case Law Overview

In 2008, proponents of capital punishment for rape believed they had a winning case that would allow the use of capital punishment for some nonlethal crimes. Patrick O’Neal Kennedy from Harvey, Louisiana was sentenced to death after he was convicted of raping his eight-year-old stepdaughter. The rape was uncommonly brutal in its severity. The injuries that Kennedy’s stepdaughter sustained from the repeated rapes required emergency surgery. Kennedy initially maintained that the battery was committed by two neighborhood boys. He even refused to plead guilty when a settlement was offered to spare him from a death sentence. In 2003, Kennedy was convicted and sentenced under a 1995 Louisiana law that allowed the death penalty for the rape of a child under the age of 12. The Court did not share the same optimism that proponents of capital punishment did. The majority, relying on the precedent of the ESD Doctrine, overturned the death penalty since the rape, though it did involve a child, did not result in the death of the victim (544 U.S. 407).

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