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Arbitration and “Effective Vindication”: Recommended Reading

For readers interested in the above cited issue, I have previously cited to Georgetown Associate Law Professor J. Maria Glover’s article, “Disappearing Claims and the Erosion of Substantive Law,” 124 Yale Law Journal 3052-3092 (2015).  Similarly of interest is Yale Law Professor Judith Resnik’s article in the same volume, “Diffusing Disputes:  The Public in the Private of Arbitration, the Private in Courts and the Erasure of Rights,” 124 Yale Law Journal 2804-2939.  Tracing U.S. Supreme Court caselaw evolution from 1925 through the present, Professor Resnik concludes that “the cumulative effect of the Supreme Court’s jurisprudence on arbitration has been to produce an unconstitutional system that undermines both the legitimacy of arbitration and the functions of courts.”

“…[I]n the context of mandated arbitration, the Court has not exercised it obligation to analyze the alternatives and assess their quality.  Rather, the Court has spun off decision making without imposing structured safeguards.”

Ibid., 2809.  In arguing that the Supreme Court has mandated arbitration as a substitute for adjudication without sufficient oversight, Resnik notes that the Court to date has “never declined to enforce an arbitration mandate for its failure to provide adequate remedies.”  Ibid., 2840; see also, 2886 (the Court has not issued a single decision “finding arbitration inadequate, inaccessible or ineffective or ineffective to vindicate rights. [footnote omitted].”)

According to Resnik, while, as justification for expanding its imposition of arbitration to predispute mandatory arbitration “agreements,” the Court has relied upon arbitration’s adequacy as a choice of forum in which to vindicate statutory rights,

“this body of federal law lacks directions on how courts do-and-ought to measure effective vindication, adequacy, accessibility and burdensomeness.  From whose vantage point – claimants, respondents, third parties, decision markers- is the evaluation made?  Is the question comparative, with courts as the baseline?”

Ibid., 2878.  Moreover, as Resnik notes, notwithstanding that “constitutional democracies require public engagement with the substantive and procedural rules that are the predicates for the power to render enforceable judgment” [Ibid., 2939], the Court has failed to develop a “federal analog” to state court unconscionability jurisprudence. Ibid., 2885.

As the California Supreme Court is noted to progressively “heed” the FAA-preemptive admonitions of the high Court (cf. Sanchez v. Valencia Holding Company) and commentators concur as to evident FAA-preemption of California Assembly Bill 465 (cf. Judge Waddington, Los Angeles Daily Journal, August 10, 2015), academicians like Glover and Resnik would remind us of the basic societal interests truly at stake.