Master Class: Arbitration Clauses II

Vol. 25 Nat'l L.J. B8 (Aug. 26, 2002)

The University of Texas School of Law, Public Law and Legal Theory Research Paper Series Number 474

5 Pages Posted: 16 Jun 2013

Date Written: August 26, 2002

Abstract

Commentary and analysis of the general trend to enforce arbitration provisions in derogation of the plaintiffs’ ability to pursue classwide relief. Consequently, defendants have discovered that arbitration clauses may provide an effective means to avoid class action litigation. The article discusses issues relating to whether claims may be pursued on a classwide basis in arbitration. When a court orders enforcement of an arbitration clause, may a plaintiff instead obtain a classwide arbitration of its claims? May a defendant invoke classwide arbitration, as well? The article surveys emerging case law from the Seventh Circuit repudiating classwide arbitration, and the SEC rule excluding class actions from arbitration. The Federal Arbitration Act (FAA) is itself silent on the question of classwide arbitration. Plaintiffs have advanced the argument that Fed. R. Civ. P. 81(a)(3) allows federal courts to apply Rule 23 (governing class actions) to order that an arbitration proceed as a class action. In contrast to developments in federal courts, state courts in California and Pennsylvania have authorized classwide arbitration of claims.

Keywords: Class arbitration, classwide arbitration, Federal Arbitration Act, Rule 23, Fed. R. Civ. 81(a)(3), F. A. A.

Suggested Citation

Mullenix, Linda S., Master Class: Arbitration Clauses II (August 26, 2002). The University of Texas School of Law, Public Law and Legal Theory Research Paper Series Number 474. Available at SSRN: https://ssrn.com/abstract=2279471

Linda S. Mullenix (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1375 (Phone)

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