Fall 2020 • Seminar
Exam Type: No Exam
Over the past several decades, American workers, consumers, patients, and small businesses have increasingly found themselves subject to binding arbitration clauses imposed by large corporations on a take-it-or-leave-it basis. Claims that would previously have been brought in court, often through class actions – discrimination, sexual harassment, wage theft, consumer-protection, or antitrust claims, for example – are now channeled into confidential bilateral arbitration. Or they are simply not brought at all.
This rapid rise in forced arbitration represents one of the most profound transformations of the American civil justice system. It has been criticized for inhibiting the development of law, preventing public disclosure of wrongdoing, distorting outcomes in favor of the drafter, suppressing claims, transferring wealth upwards, and replacing democracy with private legislation. On the other hand, proponents of these arbitration clauses (including a majority of the current U.S. Supreme Court) defend them as voluntary arrangements that facilitate a more efficient alternative to costly and burdensome litigation.
This seminar will explore the history, theory, doctrine, and politics of forced arbitration. Topics will include the legislative history of the Federal Arbitration Act; the U.S. Supreme Court’s jurisprudence interpreting that Act, with a special focus on the use of arbitration to preclude class actions; the implications for contract theory and political theory; the empirical evidence of arbitration’s effects; and regulatory, legislative, and collective-action responses. Doctrinally speaking, the course will encompass civil procedure, federal preemption, statutory interpretation, and contract law; some background familiarity with American law in those areas is presumed.
The instructor, Deepak Gupta, is a principal at Gupta Wessler PLLC, an appellate boutique in Washington, DC, and a former Senior Counsel at the Consumer Financial Protection Bureau. He has represented consumers, workers, and small merchants in key cases on forced arbitration before the U.S. Supreme Court, including AT&T Mobility v. Concepcion and American Express v. Italian Colors.
Note: This seminar will meet on average of two hours per week.