Critical Procedure: ADR and the Justices’ 'Second Wave' Constriction of Court Access and Claim Development

Abstract

Expansive alternative dispute resolution (ADR) was the centerpiece of efficiency-based procedural reforms in the 1980s and early 1990s. ADR and other reforms collectively altered the litigation landscape, at times for the better. Yet some scholars raised early questions about ADR’s effect on systemic litigation fairness and the ability of the disenfranchised to assert and maintain claims in court. Amid second wave procedural changes, commencing around the mid-2000s, a Justice Scalia-led majority significantly expanded the grasp of compelled, private, and individualized arbitration. Under the shroud of efficiency, that Court majority imposed those second wave changes by judicial fiat, bypassing formal rule-making. Collectively, both waves sharply constrict court access and claim development to the detriment of less powerful social groups. Two Supreme Court cases — American Express Co. v. Italian Colors Restaurant (Amex) and AT&T Mobility LLC v. Concepcion (Concepcion) — epitomize ADR’s privatization (without judges, full discovery, or public scrutiny) and individuation (without class adjudication, broad joinder, or cost sharing) of claims by employees, consumers, tenants, small businesses, and discrimination claimants against more powerful businesses and institutions. This Article first articulates a developing Critical Procedure analytical framework for assessing the political and ideological preferences in and intended substantive consequences of procedure’s formation, application, and revision. It then assesses Amex and Concepcion through this critical procedure lens and concludes that these ostensibly efficiency-driven ADR rulings are actually a claim suppressing mechanism that effectively shields large businesses from substantive law liability and public accountability, creating “an alternate system of justice” for those businesses that casts doubt about the legitimacy of the legal system.

Keywords: Critical Theory, Critical Procedure, Mandatory Arbitration, Class Action Waiver, AMEX, Alternative Dispute Resolution, Court Access, Efficiency Reforms, Rule-making, Politics of Procedure