The Bold Ambition of Justice Scalia's Arbitration Jurisprudence: Keep Workers and Consumers Out of Court

Abstract

Arbitration clauses have become a pervasive feature of modern life. The expanding scope of arbitration has become a cause for alarm amongst consumer and worker advocates, who see it as a judicial roll back of hard-won consumer and worker rights. Justice Antonin Scalia played a key role in the trend by which arbitration has largely displaced the civil justice system for ordinary Americans. Between 2006 and 2016, Justice Scalia authored six important Supreme Court decisions interpreting the FAA – no other Justice came close. Scalia’s singular contributions to arbitration law are implicated in three consolidated cases that are currently before the Supreme Court, and which pose the question of the impact of the FAA on workers’ rights to engage in collective activity to improve their working conditions. This article traces the Justice Scalia’s contributions to arbitration jurisprudence and considers the implications of the edifice he has created by these decisions.

Keywords: Arbitration, Consumer Rights, Class Actions, Employment Law, Worker's Rights, Justice Scalia