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Abstract:
By forcing employment and consumer cases into the mandatory arbitration system, the Supreme Court's interpretation of the Federal Arbitration Act has created inexorable pressures to judicialize arbitration, thereby tending to undermine what is valuable about arbitration as a dispute resolution process. A large and rapidly-expanding body of judicial doctrine - external arbitration law - now frames arbitration with decisional law on enforceability of arbitration clauses, arbitrability of issues, the judicial enforcement procedures for arbitrations both before and after the award, and sundry related matters. In addition, arbitration is becoming internally judicialized with formal procedures for how a case will be arbitrated, rules imposed extra-contractually, by case law, statute, professional organizations, and the arbitration providers themselves. Finally, academic commentators exacerbate this process of surrounding and infusing arbitration with formal law by focusing on increasingly specific doctrinal questions reflecting acceptance of or resignation to the mandatory arbitration regime. In other words, contemporary arbitration law is largely how courts and commentators cope with the two big mistakes underlying the Supreme Court's FAA interpretation. Believers in arbitration as a faster, simpler and cheaper alternative to litigation should support legislative reversal of judicially-created doctrine of mandatory arbitration.

arbitration, mandatory arbitration, pre-dispute arbitration, arbitration agreements, Federal Arbitration Act, litigation, judicial procedure, preemption, employment, consumer, class action, unconscionability, American Arbitration Association

Abstract:
Until recently, it was understood that mandatory arbitration was a "do-it-yourself tort reform": corporate defendants could reduce their liability in consumer and employment disputes through an adhesion contract clause requiring pre-dispute arbitration. But now that there is a significant possibility that Congress will amend the Federal Arbitration Act to make pre-dispute arbitration clauses unenforceable, critics have been stymied by the re-emergence of an argument that mandatory arbitration is a "fairer" than litigation. Mandatory arbitration supporters argue that (1) critics have failed to make an empirical case against mandatory arbitration, because existing studies seem to show that plaintiffs do at least as well in arbitration as in court; and (2) mandatory arbitration is a more egalitarian forum than litigation because it is more accessible to smaller claims and claimants. This argument for mandatory arbitration "fairness" has effectively tabled the discussion of whether tort reform through mandatory arbitration is justified, and whether an adhesion contract, rather than legislation, should be the vehicle for creating a "fair" dispute resolution system.

This article argues there is no "fairness" justification for imposing a dispute resolution system through adhesion contracts. The economic incentives of the mandatory arbitration system only work by reducing the prospects of plaintiffs with high-cost/high-stakes cases. And while shifting the empirical "burden of proof" onto critics is clever rhetorical strategy, in fact it is the egalitarian argument for mandatory arbitration that is empirically unfounded as well as illogical.

mandatory arbitration, fairness, pseudo-populist, empirical studies, access to adjudication, access to courts, process costs, liability costs, high-cost/high-stakes cases, sampling error, empirical burden of proof, tort reform, Federal Arbitration Act

Abstract:
The Federal Arbitration Act is unconstitutional as it has been applied to the states over the past 20 years. In its 1984 decision in Southland Corp. v. Keating, the Supreme Court held that FAA is substantive law binding on state courts under the Supremacy Clause. The resulting doctrine of FAA preemption has nullified dozens of state contract laws, sewn confusion in the courts, and poised the FAA to become a significant "tort reform" statute. The FAA is thus an important example of a larger recent trend of efforts to impose tort reform, indirectly, by federal regulation of state court procedure.

States' sovereignty over the structure, jurisdiction and procedure of their courts is fundamental to federalism. The Supremacy Clause requires state courts to apply federal substantive law, but the constitution assumes state courts will do so applying their own neutral rules of procedure. While state courts' implementation of federal substantive law may incidentally, in isolated cases, affect state procedural rules, Congressional efforts to impose procedural rules on state courts abridge the states' "residual and inviolable sovereignty" and impermissibly commandeer both state judges and legislatures.

The FAA is procedural regulation, notwithstanding Southland. It governs contracts about procedure and overrides the fundamentally procedural allocation of decisionmaking authority between courts and arbitrators. Looked at through every relevant context in which a substance-procedure distinction has been applied, arbitration enforcement is a procedural matter, and Congress is without power to impose it on the states.

Federal Arbitration Act, FAA, tort, constitution, State Courts, Power of Congress

Abstract:
In Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), the Supreme Court disapproved what I call the "sex per se" rule, the notion that sexual conduct without more established the "causation" element in a sexual harassment claim: that the conduct was "because of sex." Nearly contemporaneously with Oncale, leading feminist accounts of sexual harassment " the "second generation" of sexual harassment scholarship" have themselves abandoned the sex per se rule. The feminist theorists' goal has been to solve a complex of problems coming under the label "essentialism," the problematic notion that womanhood is a monolithic concept and there is a single problem of sex discrimination which can be solved by a unified solution. For these second generation theorists, the sex per se rule is inextricably tied to the essentialism of Catharine MacKinnon's classic antisubordination theory articulated in Sexual Harassment of Working Women. Second generation theorists seek to expand sexual harassment doctrine to include claims by gender-nonconforming men and women and claims of non-sexual harassing conduct, while at the same time attacking the sexual paternalism that has arisen from courts' watered-down adoption of MacKinnon's views. However, in Oncale, the result of the Court re-examining the issue of causation without embracing the feminists' antisubordination values, has been to set sexual harassment law back. The result "unintended by feminist theorists" is to make more difficult the proof of causation for core sexual harassment claims, cases in which sexual harassment was not motivated by sexual attraction toward the victim.

In this article, I argue the sex per se rule has helped combat the subordination of women in the workplace by easing otherwise potentially difficult problems in proving causation, and it could function in the same way to combat subordination based on gender more broadly conceived. Feminist theorists, I argue, have misunderstood the role of causation in sexual harassment cases, which has led to two practical failures. First, these theorists have failed to anticipate the consequences of a judicial re-examination of the causation issue by courts (such as the Oncale Court) that have seldom adopted an antisubordination theory of discrimination. Second, the theorists have failed to recognize the value of retaining the sex per se rule. I argue further that a sex per se rule is entirely consistent with the anti-essentialist goals of the second generation theorists. After Oncale, therefore, the first order of business for theorists of sexual harassment law should be to rehabilitate the sex per se rule by showing courts that it has a viable theoretical and textual basis.

Sexual Harassment, Harassment, feminism, causation. subordination, sex per se rule

Abstract:
There is strong reason to believe that arbitration, when imposed on employees and consumers by regulated corporate defendants, results in systematic underenforcement of employee and consumer protection laws. The article explores in depth both the procedural disadvantages compelled arbitration places on consumers and employees attempting to enforce their rights, and the history of the FAA and the largely judge-made "national policy favoring arbitration." Despite arbitration's surface appearance of neutrality, the subtle procedural disadvantages of arbitration for employees and consumers suppress the enforcement of consumer and employee protective statutes compared to the level of enforcement in cases litigated in court. Moreover, because terms of dispute resolution are never salient features of employee or consumer contracts " they are secondary details of the contract, often buried in small print " employees and consumers are likely to systematically undervalue their hypothetical future disputing rights, making it unlikely that the market will correct the windfall to defendants. Because regulated corporate defendants can count on courts to enforce pre-dispute arbitration agreements, the pro-arbitration judicial policy offers corporate defendants an opportunity to deregulate themselves. The article concludes by arguing that courts should deny enforcement of pre-dispute arbitration agreements, just as they would any other contract terms purporting to force protected parties to waive their rights in advance.

employee, consumer, arbitration, compelled arbitration, Federal Arbitration Act FAA

Abstract:
This article argues that the "symmetrical" or "colorlind" approach to discrimination cases adopted by the federal courts "that discrimination against white males is just as bad as discrimination against minorities and women" contradicts the original intent of the Civil Rights Act of 1964 to promote the interests of minorities to an equal share in employment and education. Moreover, in its affirmative action/reverse discrimination jurisprudence, the federal courts have stepped far outside their proper role. Due largely to a liberal mythology, created around Brown v. Board of Education, holding that the Supreme Court is a progressive force in racial justice, most American lawyers and judges accept without question that all issues of apparent race discrimination, including reverse discrimination/ affirmative action, should be decided in the courts. However, the Court's affirmative action/ reverse discrimination jurisprudence is little more than a kind of race-based bargaining or social engineering for which the courts are ill suited, and which would be better left to resolution in the political process.

discrimination, federal court, civil rights, Civil Rights Act, affirmative action