Spring 2023 • Seminar
Forced Arbitration and the American Civil Justice System
Exam Type: No Exam
Americans increasingly find themselves subject to binding arbitration clauses imposed by corporations on a take-it-or-leave-it basis. A broad range of claims that would previously have been brought in court, often through class actions—discrimination, wage theft, consumer-protection, or antitrust claims, for example—are now channeled into confidential bilateral arbitration. Or they are simply not brought at all.
The rapid rise of forced arbitration represents one of the most profound transformations of the American civil justice system. It has been criticized for inhibiting the law’s development, preventing public disclosure, distorting outcomes, suppressing claims, transferring wealth upwards, violating the constitutional right to a jury trial, and replacing democracy with the fine print. On the other hand, proponents—including a majority of the U.S. Supreme Court—have generally viewed arbitration as a voluntary arrangement that facilitates a more efficient alternative to costly and burdensome litigation.
This seminar explores the history, theory, doctrine, and politics of forced arbitration, focusing on the Supreme Court’s modern arbitration jurisprudence and potential responses through legislation, regulation, and collective action. The course will also seek to situate arbitration’s rise within a broader pattern of procedural retrenchment over the past four decades and consider the prospects for reinvigorating private enforcement and access to civil justice.
Students will write reaction papers and a final seminar paper on a topic of their choosing. Class discussions may be supplemented by guest speakers and may incorporate ongoing developments before the Supreme Court, Congress, and administrative agencies.
The instructor, Deepak Gupta, is the founding principal of Gupta Wessler PLLC, a public interest appellate boutique in Washington, DC. He has represented consumers and workers in key U.S. Supreme Court cases on forced arbitration and access to the civil justice system.
Note: This seminar will meet on average of two hours per week.