Mass Arbitration 2.0

Authors

Andrew B. Nissensohn, Washington and Lee University School of LawFollow

Abstract

Over the past four decades, corporate interests, in concert with the Supreme Court, have surgically dismantled the American civil litigation system. Enacted nearly a century ago, the Federal Arbitration Act (FAA) was once a procedural law mandating that federal courts enforce arbitration agreements between sophisticated parties with equal bargaining power. Through death by a thousand cuts, corporate interests shielded themselves from nearly all methods of en masse dispute resolution. These interests weaponized the FAA into a “one size fits all” means to compel potential litigants with unequal bargaining power into arbitration. The so-called “Arbitration Revolution” is the subject of much scholarly literature, but a nascent offspring of the Revolution is forcing corporate interests to retreat from their decades-long crusade—Mass Arbitration.

In recent years, aggrieved plaintiffs, shackled by mandatory bilateral arbitration agreements, took matters into their own hands. Armed with highly-capitalized law firms and frequently untapped arbitration provisions, plaintiffs acquiesced to corporate demands and filed their disputes in arbitration. But this time they did it differently than others before them: compiling thousands of nearly identical claims and filing demands for individual arbitration en masse.

Part I of this Note documents the Arbitration Revolution, whereby defense-side interests strategically dismantled the civil litigation system. Part II then proceeds to the emergence of Mass Arbitration and the initial responses of corporate interests. Importantly, this is a snapshot in time— it is inevitable that the defense bar will adapt to this dramatic change in the litigation sphere. But the question of how they will do so remains unanswered. Part III looks to Mass Arbitration 2.0 and details analyzes two potential paths under current Supreme Court precedent. Businesses might throw in the towel and return to the conventional civil litigation system, as Amazon recently did. Alternatively, they might “tighten the screws” and eliminate “saving grace” consumer-friendly terms that arguably kept their arbitration agreements afloat when challenged. Given the uncertainty of this response, Part IV proposes concrete actions needed to reverse the decades-long misguided interpretation of the FAA and safeguard the rights and interests of consumers and employees throughout America.

Recommended Citation

Andrew B. Nissensohn, Mass Arbitration 2.0, 79 Wash. & Lee L. Rev. 1225 (2022).
Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol79/iss3/11