Document Type

Article

Publication Date

2011

Abstract

The Supreme Court’s most recent “trilogy” of arbitration law rulings – Stolt-Nielsen, Rent-A-Center and AT&T Mobility v. Concepcion – deserves the lavish attention it has been receiving, as evidenced by the contributions of Tom Stipanowich and Alan Rau in this special issue. Professors Stipanowich and Rau rightly view the three rulings as “of a piece,” revealing a determination on the part of the Court’s majority to enhance the autonomy and effectiveness of arbitration as a dispute resolution mechanism, even at the expense of consumer welfare. The trilogy has the result, and most likely the purpose, of weakening safeguards that had traditionally served to ensure the fairness of arbitral adjudication, while keeping arbitration at a safe distance from dispute resolution on a class-wide basis. By all accounts, the trilogy’s chief beneficiaries are those economic actors best capable of protecting their own interests in the contracting process.

Like past Supreme Court trilogies in the arbitration field, the present trilogy represents a coordinated movement of the case law, a movement that Professors Stipanowich and Rau admirably depict. Their highly textured portrayals of the trilogy lay out the facts of the cases and the judicial reasoning of the majority in useful detail, while identifying, correctly in my view, their political economy dimension. My purpose, while two-fold, is more modest. I focus first on what I see as the shift in doctrinal premises that the trilogy entails, attempting to gauge the measure of that shift. I then try to determine – again largely in doctrinal terms – the degree to which the trilogy has narrowed the options for advocates and courts that may be inclined to resist it. I find that, while the three decisions are indeed of a piece, each is distinctive in the extent to which it required the Court to turn its back on settled understandings of U.S. arbitration law. I find that the decisions also differ in the degree to which they resolve definitively the issue before the Court, in the sense of actually foreclosing the results they were designed to foreclose. In short, while acknowledging the heavy impact of all three decisions, I seek to identify precisely the magnitude of the shift in premises that each of them entails and to measure the latitude that advocates and courts still enjoy in the trilogy’s wake.

Disciplines

Dispute Resolution and Arbitration | Law

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