For decades, the class action has been in the crosshairs of defense-side procedural warfare. Repeated attacks on the class action by the defense bar, the U.S. Chamber of Commerce, and other defense-side interest groups have been overwhelmingly successful. None proved more successful than the arbitration revolution, a forty-year campaign to eliminate class actions through forced arbitration provisions in private contracts. The effects of this revolution on civil justice have been profound. Scores of claims vanished from the civil justice landscape—claims concerning civil rights, wage theft, sexual harassment, and consumer fraud. The effects on social justice, racial justice, gender justice, and economic justice have been especially profound, as the legal claims of minorities, women, wage-and-hour workers, and the working poor were systematically and disproportionately foreclosed.
Yet now, just when one would expect the defense bar to be taking a victory lap, prominent defendants are abandoning the hard-fought right to disable the class action through arbitration and instead seeking refuge in class-action suits. Why the about-face? A surprising counteroffensive designed to use individual arbitration to the plaintiff’s advantage: mass arbitration. This Article presents a foundational analysis of the subject.
The Article develops the first and only case study of mass arbitration and provides a taxonomy of the results. What emerges is not a variation on old themes, but instead a new and distinct model of dispute resolution. The investigation reveals significant ways in which the mass-arbitration model challenges conventional wisdom about the economics of individual claims; uncovers important differences between the mass-arbitration model and existing forms of aggregate dispute resolution; recasts long-standing debates in litigation theory and jurisprudence; and provides new perspective on the relationships among private procedural ordering, public procedural reform, and civil justice. Mass arbitration, in other words, is a phenomenon in its own right. More importantly, mass arbitration offers a window into the future of civil justice.
* Professor of Law, Georgetown University Law Center. Thank you to the editors of the Stanford Law Review for their thoughtful work on this piece. Thanks also to Rachel Bayefsky, Elizabeth Chamblee Burch, Zachary Clopton, Alexander Colvin, Angela B. Cornell, Maggie Gardner, James Grimmelmann, David Horton, Alyssa King, Joshua Kleinfeld, Odette Lienau, Mark Moller, David Noll, Jeffrey J. Rachlinski, D. Theodore Rave, Alan M. Trammell, W. Bradley Wendel, Robin L. West, and Adam Zimmerman for insightful comments on earlier drafts. Thanks to Melinda Church, Eloy Rodriguez La Brada, Kaylee Otterbacher, and Theodore Salem-Mackall for excellent research assistance.