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The Rise And Spread Of Mandatory Arbitration As A Substitute For The Jury Trial, Jean R. Sternlight
The Rise And Spread Of Mandatory Arbitration As A Substitute For The Jury Trial, Jean R. Sternlight
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THE CIVIL JURY trial is fast disappearing from our legal landscape, and one important reason for its disappearance is the rapid growth of mandatory arbitration. Yet, the imposition of mandatory arbitration eliminates the civil jury, and often this elimination is not made through a knowing, voluntary, or intelligent waiver. As I have argued elsewhere in greater detail, unless federal courts are generally willing to abandon the Seventh Amendment "knowing/voluntary/intelligent" civil jury trial waiver standard, they need to significantly revise their approach to mandatory arbitration clauses. If a given state allows the civil jury trial right to be waived through a …
Should An Arbitration Provision Trump The Class Action? No: Permitting Companies To Skirt Class Actions Through Mandatory Arbitration Would Be Dangerous And Unwise, Jean R. Sternlight
Should An Arbitration Provision Trump The Class Action? No: Permitting Companies To Skirt Class Actions Through Mandatory Arbitration Would Be Dangerous And Unwise, Jean R. Sternlight
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Companies are deliberately using mandatory arbitration to prevent consumers and employces from joining together in class actions. As Carroll Neesemann has explained, eliminating the class action is a "strong incentive" of those companies that impose the requirement of arbitration on consumers and employees. Mr. Neesemann defends this phenomenon, and his article offers companies and their attorneys some tips on how to effectively use arbitration to insulate themselves from the threat of class actions. By contrast, this essay argues that it is dangerous and unwise to permit companies to use mandatory arbitration to exempt themselves from class action suits.
Is The U.S. Out On A Limb? Comparing The U.S. Approach To Mandatory Consumer And Employment Arbitration To That Of The Rest Of The World, Jean R. Sternlight
Is The U.S. Out On A Limb? Comparing The U.S. Approach To Mandatory Consumer And Employment Arbitration To That Of The Rest Of The World, Jean R. Sternlight
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After quickly summarizing the landscape of mandatory arbitration both within and without the United States, this article will consider why mandatory arbitration is treated so disparately, whether it is problematic that approaches to mandatory arbitration are so varied among countries, and what the differing jurisdictions can and should learn from one another. The article concludes that the United States Congress should be very concerned with the fact that we are treating mandatory arbitration more permissively than other countries. I, along with many others, have previously presented many arguments for why mandatory arbitration is problematic. Our outlier status on this issue …
As Mandatory Binding Arbitration Meets The Class Action, Will The Class Action Survive?, Jean R. Sternlight
As Mandatory Binding Arbitration Meets The Class Action, Will The Class Action Survive?, Jean R. Sternlight
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Assuming that the traditional prerequisites for a class action have been met, courts have four choices: (1) order the dispute to be resolved in an individualized arbitration, thereby denying plaintiffs either a litigation or arbitration venue for their class claims; (2) refuse to mandate arbitration, and instead allow plaintiffs to litigate their class claims; (3) order that the dispute be resolved through an arbitral class action, also known as classwide arbitration; or (4) order the dispute to arbitration but allow the arbitrators to make the determination as to whether the dispute should be resolved individually or on a class basis. …
Compelling Arbitration Of Claims Under The Civil Rights Act Of 1866: What Congress Could Not Have Intended, Jean R. Sternlight
Compelling Arbitration Of Claims Under The Civil Rights Act Of 1866: What Congress Could Not Have Intended, Jean R. Sternlight
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The Civil Rights Act of 1866 was a very special statute, designed at minimum to eliminate all "badges and incidents of slavery" and to ensure that the freed slaves would be provided with civil rights equal to those of white persons. Its enforcement depends on the availability of a neutral public system of justice. Private arbitration cannot assure these characteristics. Thus, courts should not enforce agreements to arbitrate future disputes that may arise under this statute. This Article, however, does not argue that arbitration of claims under the Civil Rights Act of 1866 should be prohibited altogether. Disputants who mutually …
Mandatory Pre-Dispute Arbitration: Steps Need To Be Taken To Prevent Unfairness To Employees And Consumers, Jean R. Sternlight
Mandatory Pre-Dispute Arbitration: Steps Need To Be Taken To Prevent Unfairness To Employees And Consumers, Jean R. Sternlight
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Courts, arbitral organizations and governmental agencies are increasingly recognizing that mandatory binding arbitration can be used both to disadvantage employees and consumers, and to evade legal requirements. Over the last decade, private parties such as employers, manufacturers and financial organizations began using binding arbitration agreements to skirt the public law, and public juries, with increasing intensity. As so often happens, overreaching may once again be giving way to retrenchment, as the tide seems to be turning away from the “anything goes” approach of the earlier 1990s.