Mass Arbitration

Abstract

MASS ARBITRATION
J. Maria Glover*

For decades, the class action has been in the crosshairs of defense-side
procedural warfare. Repeated attacks on the class action by the defense bar, the U.S.
Chamber of Commerce, and other defense-side interest groups have been overwhelmingly
successful. None proved more successful than the arbitration revolution, a forty-year
campaign to eliminate class actions through forced arbitration provisions in private
contracts. The effects of this revolution on civil justice have been profound. Scores of
claims vanished from the civil justice landscape—claims concerning civil rights, wage
theft, sexual harassment, and consumer fraud. The effects on social justice, racial justice,
gender justice, and economic justice have been especially profound, as the legal claims of
minorities, women, wage-and-hour workers, and the working poor were systematically
and disproportionately foreclosed.

Yet now, just when one would expect the defense bar to be taking a victory lap, prominent
defendants are abandoning the hard-fought right to disable the class action through
arbitration and instead seeking refuge in class-action suits. Why the about-face? A
surprising counteroffensive designed to use individual arbitration to the plaintiff’s
advantage: mass arbitration. This Article presents a foundational analysis of the subject.

The Article develops the first and only case study of mass arbitration and provides a
taxonomy of the results. What emerges is not a variation on old themes, but instead a new
and distinct model of dispute resolution. The investigation reveals significant ways in
which the mass-arbitration model challenges conventional wisdom about the economics
of individual claims; uncovers important differences between the mass-arbitration model
and existing forms of aggregate dispute resolution; recasts long-standing debates in
litigation theory and jurisprudence; and provides new perspective on the relationships among private procedural ordering, public procedural reform, and civil justice. Mass
arbitration, in other words, is a phenomenon in its own right. More importantly, mass
arbitration offers a window into the future of civil justice.

Keywords: Complex Litigation, Jurisprudence, Civil Rights, Civil Justice, Civil Procedure, Mass Arbitration, Arbitration Agreements, Class Action, Jurisprudence, administrative law, legislation