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http://ssrn.com/abstract=2196921
 
 

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Opting Out of the Procedural Morass: A Solution to the Class Arbitration Problem


Emanwel J. Turnbull


University of Maryland - Francis King Carey School of Law

January 5, 2013

Widener Law Review, Forthcoming

Abstract:     
American class actions are internationally regarded as a procedural form to avoid and widely criticized in the United States. They have been narrowed and restricted by U.S. statutes and case law. Plaintiffs' lawyers in consumer class actions are portrayed as greedy and fraudulent, while businesses are increasingly acting to avoid class actions through mandatory pre-dispute arbitration clauses. Even class arbitration is criticized as leading to a “procedural morass.”

This Article proposes that parties and arbitral fora opt out of the American procedural morass (and the attendant long-running disputes about American class actions) by adopting an English procedural rule for aggregation. This Article performs the necessary investigation into the legal contexts of England and America and adjusts the transplant rule to best fit its new home.

The proposed arbitral rule is simpler and more flexible, and therefore more suitable, than the existing arbitral rules adapted from Federal Rule of Civil Procedure. Perhaps more importantly, this new rule does not carry the cultural baggage of the American class action. Where consumers and businesses are vehemently opposed, this new approach to aggregation can bring compromise and co-operation. If adopted, this rule can relieve the consumer-business tensions and breathe new life into the arbitral forum as a setting in which many consumers can obtain a fair hearing of a dispute, even if they need to do so together.

Number of Pages in PDF File: 40

Keywords: comparative, arbitration, group litigation, class action, consumer

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Date posted: January 6, 2013 ; Last revised: January 10, 2013

Suggested Citation

Turnbull, Emanwel J., Opting Out of the Procedural Morass: A Solution to the Class Arbitration Problem (January 5, 2013). Widener Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2196921

Contact Information

Emanwel Josef Turnbull (Contact Author)
University of Maryland - Francis King Carey School of Law ( email )
500 West Baltimore Street
Baltimore, MD 21201-1786
United States
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