Arbitration\u27s Unraveling

It has been over a decade since the Supreme Court declared that the Federal Arbitration Act preempts state-law policies that stand as an obstacle to enforcement of the class-banning arbitration clauses that companies tuck into standard-form contracts. In that time, plaintiffs’ lawyers have tried challenging class action–banning arbitration provisions on myriad legal grounds, as well as pressing for federal and state legislation to undo the Court’s ruling in AT&T Mobility LLC v. Concepcion. Neither strategy has borne much fruit—until now. In the past few years, congressional action has exempted specific categories of cases from mandatory arbitration, suggesting that an area-by-area attack on the arbitral edifice may be fruitful. More consequentially, in my view, the Supreme Court has cast substantial doubt on the “liberal federal policy favoring arbitration” upon which contemporary FAA jurisprudence rests. This is big news, suggesting that all judge-made, arbitration-specific rules created in the service of a supposed policy favoring arbitration are ripe for reexamination. One consequence, I show, is that the FAA must now be understood to exempt the contracts of all workers engaged in interstate commerce. Meanwhile, entrepreneurial plaintiffs’ firms have sought to force corporate defendants to make good on their contractual promises to bear the cost of arbitrating large numbers of nominally individual claims. By marketing broadly to would-be claimants via social media and then financing the claimants’ portion of arbitral filing fees, these firms have filed thousands of simultaneous claims, forcing defendants to either settle or spend tens of millions of dollars on arbitral fees alone. At present, companies are groping for contractual tweaks to foreclose the risk of mass arbitration. But I expect those efforts will be thwarted by state unconscionability law in many states. And I also expect that companies will increasingly drop their arbitration clauses altogether and seek to implement standalone class action–waiver clauses, removing any pretense that the defense community was ever interested in arbitration, as opposed to class-action bans. But here, too, I think state unconscionability law will bring us back full circle to the state-by-state map that existed prior to Concepcion. In short, there are reasons to believe that the hegemony of class-banning arbitration is unraveling before our very eye

Reinventing Structural Reform Litigation: Deputizing Private Citizens in the Enforcement of Civil Rights

The aim of this Article is to explore the possibility of constructing a model that harnesses the power of private citizens to reform unconstitutional practices, particularly in the critical area of police-related rights violations. I seek here to reintegrate private citizens into the enforcement of public laws; to tap the private experiential and financial resources that were a necessary condition of the great structural reform efforts of the civil rights movement of the 1950s and 1960s. The vehicle by which I propose to accomplish these ends is a simple, yet novel, amendment to 42 U.S.C. § 14141, the statute which authorizes the Justice Department to seek broad injunctive remedies against municipal police departments engaged in unconstitutional “patterns and practices.” While Supreme Court standing jurisprudence would preclude private litigants from engaging in the sort of reformist enterprise envisioned in § 14141, I advance a theory of deputation which would give citizens a powerful voice in the social discourse on police-related policies. Drawing upon the notion of “public-private” partnerships, I argue here for the creation of an agency relationship between the executive charged with enforcing prohibitions against unconstitutional police practices, and the individuals and community groups that are directly affected by, and have the information, means and incentives required to challenge those practices. [We] have with special soul . . . Lent him our terror, dress\u27d him with our love, And given his deputation all the organs Of our own pow\u27r

In Defense of Making Government Pay: The Deterrent Effect of Constitutional Tort Remedies

Legal economists are concerned with setting optimal deterrence levels. Armed with information concerning the public and private costs and benefits of a particular harmful activity, the legal economist seeks to set a “price” for the activity which, to some socially optimal extent, minimizes external costs while retaining external benefits. If the economist\u27s information is perfect, he can predict precisely how an economically rational actor will respond to a particular price and achieve optimal deterrence of activities whose costs outweigh their benefits

(Forced) Arbitration in America: Suppressing Claims, Undermining Corporate Accountability, And Perpetuating Injustice

The U.S. Senate Committee on the Judiciary issued the following testimony by Myriam Gilles, professor at the Benjamin N. Cardozo School of Law, involving a hearing on Apr. 3, 2019, entitled (Forced) Arbitration in America: Suppressing Claims, Undermining Corporate Accountability, And Perpetuating Injustice

The Private Attorney General in a Time of Hyper-Polarized Politics

With the enactment of the Federal Trade Commission Act (“FTC Act”) in 1914 and the Wheeler–Lea Act in 1938, Congress sought to establish a brawny federal consumer protection regime to guard against the myriad unfair and deceptive practices that threatened harm to American consumers. But courts in this era interpreted these statutes to confer exclusive enforcement authority in the Federal Trade Commission (“FTC”), declining to infer a private right of action. For many decades, the resulting enforcement gap in consumer protection law was filled largely by state Unfair and Deceptive Practices Acts (“UDAPs”), which sanction litigation by both public and private enforcers. But while consumer-initiated litigation under UDAPs has traditionally played an important role in achieving consumer justice, recently, private UDAP enforcement is imperiled by powerful corporate opponents who have successfully lobbied for changes that make it more difficult for consumers to sue for relief. Furthermore, these “reform” efforts have led to greater variation between and among UDAPs, rendering multi-state consumer class actions under Rule 23(b)(3) far more difficult to certify. Meanwhile, at the federal level, head-spinning fluctuations of political power and hardening partisanship reveal the weakness of an inconsistent FTC enforcement agenda. In light of growing constraints on state UDAPs and the increasingly erratic, politicized nature of federal enforcement, this Article revisits a simple idea: amending the Federal Trade Commission Act to add an unwaivable private right of action, allowing injured consumers to supplement the FTC’s enforcement activities by bringing legal actions to remedy widespread harm. This application of the private attorney general is grounded in the reality that while politics may ebb and flow, citizens suffering injuries in the marketplace are a constant. Deploying these citizens to consistently enforce consumer protection laws—no matter the party in power or the Commissioner in charge—generates a more stable administration of laws and better ensures that corporate actors refrain from engaging in widespread misconduct

Brief of Amici Curiae Maureen Carroll, Christine Bartholomew, Andrew Bradt, Brooke Coleman, Robin Effron, Myriam Gilles, Robert Klonoff, Suzette Malveaux, David Marcus, Elizabeth Porter, D. Theodore Rave, Elizabeth Schneider, and Adam Zimmerman in Support of Defendants-Appellees/Cross Appellants

Amici are law professors with expertise in the requirements for class certification under Rule 23 of the Federal Rules of Civil Procedure. Amici have written extensively about class action litigation, including the use of class actions in civil rights cases seeking declaratory or injunctive relief. Together, we share an interest in ensuring that the Federal Rules of Civil Procedure continue to be construed so as to ensure the “just, speedy and inexpensive determination of every action and proceeding.” FED. R. CIV. P. 1

The Day Doctrine Died: Private Arbitration and the End of Law

This story begins in 1980, when a budding anti-lawsuit movement found an energetic champion in a new conservative President. Over time, the movement became a dominant feature of political life, as its narrative of activist judges, jackpot justice, and a thriving lawsuit industry stirred partisan passions. And yet, some thirty years on, it is clear that the primary legacy of the anti-lawsuit movement is the movement itself--not legislative achievements, which have been few and far between, but committed adherents, including future Supreme Court Justices, lower court judges, and business leaders. Meanwhile, and also in the early 1980s, federal courts began a long, slow, and initially apolitical process of invigorating the staid legal backwater of arbitration. Over the next thirty years, arbitration came fully of age. By 2013, the Supreme Court had held that companies may freely and openly use provisions mandating one-on-one, confidential arbitration in standard form agreements with employees, consumers, and others to escape the judicial system--and avoid potential exposure to class actions. Finally, over these same thirty years, class actions became a dominant force in litigation, having managed to dodge the most serious reform initiatives of the anti-lawsuit movement. Class actions--for better or for worse--have proven to be extremely powerful weapons in a wide variety of subject matter areas, accounting for billions of dollars in damages settlements. Companies of all stripes dearly want to avoid class exposure. And so, as these three developments have unfolded over the past thirty years--separately and together--we are now at a unique point in our legal history: one that portends, quite literally, the end of doctrinal development in entire areas of the law. Companies, anxious to avoid any and all exposure to class actions are highly motivated to insert confidential, one-on-one arbitration mandates into the standard form agreements that, over these same thirty years, have come to govern their relationships with employees, consumers, direct purchasers, and all manner of counterparties. As a result, all disputes under these agreements-- whether they would have otherwise been brought as class or individual claims--will now be shunted into the hermetically-sealed vault of private arbitration, where there is no public, transparent decision-making process, much less stare decisis, or common law development. For entire categories of cases that are ushered into this vault-- from consumer law, to employment law, to much of antitrust law--common law doctrinal development will cease. This, quite literally, represents the end of law

Letter from NY Law Faculty in Support of Diploma Privilege

For more information, please refer to Karen Sloan\u27s article, Hundreds of New York Law Professors Endorse Emergency Diploma Privilege, published by the New York Law Journal and appearing on Law.com on July 22, 2020. Additional Signatories: Susan Abraham (New York Law School), Michelle Adams (Benjamin N. Cardozo School of Law), Miriam Albert (Maurice A. Deane School of Law at Hofstra University), Jose E. Alvarez (New York University School of Law), Claudia Angelos (New York University Law School), Deborah Archer (New York University Law School), Jennifer Arlen (New York University Law School), Anna Arons (New York University Law School), Jonathan Askin (Brooklyn Law School), Barbara L. Atwell (Elisabeth Haub School of Law at Pace University), Aditi Bagchi (Fordham University School of Law), Rachel Barkow (New York University Law School), Melynda Barnhart (New York Law School), John Q. Barrett (St. John’s University School of Law), Christine P. Bartholomew (University at Buffalo School of Law), Mark Bartholomew (University at Buffalo School of Law), Jennifer Baum (St. John’s University School of Law), Christopher Beauchamp (Brooklyn Law School), Debra Bechtel (Brooklyn Law School), Edith Beerdsen (New York University School of Law), Peter A. Bell (Syracuse University College of Law), Lenni Benson (New York Law School), Paula Berg (City University of New York School of Law), Anya Bernstein (University at Buffalo School of Law), Beryl Blaustone (City University of New York School of Law) Susan Block-Lieb Cooper (Fordham University School of Law), Pamela Bookman (Fordham University School of Law), Rebecca M. Bratspies (City University of New York School of Law), Ray Brescia (Albany Law School), Richard Briffault (Columbia Law School), William Brooks (Touro College Jacob D. Fuchsberg Law Center), Emily Brown (Syracuse University College of Law), James J. Brudney (Fordham University School of Law), Christopher Buccafusco (Benjamin N. Cardozo School of Law), Jessica Bulman-Pozen Betts (Columbia Law School), Keith Bybee (Syracuse University College of Law), Gina M. Calabrese (St. John’s University School of Law), Janet M. Calvo (City University of New York School of Law), Ann Cammett (City University of New York School of Law) Juli Campagna (Maurice A. Deane School of Law at Hofstra University), Bennett Capers (Fordham University School of Law), Stacy Caplow (Brooklyn Law School), Rosa Castello (St. John’s University School of Law), Oscar G. Chase (New York University School of Law), Asima Chaudhary (City University of New York School of Law), Nina Chernoff (City University of New York School of Law), Elaine Chiu (St. John’s University School of Law), Wilfred U. Codrington III (Brooklyn Law School), Jim Cohen (Fordham University School of Law), Jeffrey M. Colon (Fordham University School of Law), Jordana Confino (Fordham University School of Law), George W. Conk (Fordham University School of Law), Elizabeth B. Cooper (Fordham University School of Law), Briane Cornish (Brooklyn Law School), Bridget J. Crawford (Elisabeth Haub School of Law at Pace University), Laura E. Cunningham (Benjamin N. Cardozo School of Law), Noel B. Cunningham (New York University School of Law), Jason J. Czarnezki (Elisabeth Haub School of Law at Pace University), Matthew D\u27Amore (Cornell Law School), Alina Das (New York University School of Law), Lisa Davis (City University of New York School of Law), Christian C. Day (Syracuse University College of Law), Brett M. Dignam (Columbia Law School), Rebekah Diller (Benjamin N. Cardozo School of Law), Shane Dizon (Brooklyn Law School), Laura Dooley (Touro College Jacob D. Fuchsberg Law Center), Ryan Dooley (City University of New York School of Law), David Dorfman (Elisabeth Haub Law School at Pace University), Doron Dorfman (Syracuse University College of Law), Helen Agnes Drew (University at Buffalo School of Law), Catharine Du Bois (Brooklyn Law School), Catherine Baylin Duryea (St John\u27s University School of Law), Robin Effron (Brooklyn Law School), Elizabeth F. Emens (Columbia Law School), Richard A. Epstein (New York University School of Law), Howard Erichson (Fordham University School of Law), Jeffrey Fagan (Columbia Law School), Golnaz Fakhimi (City University of New York School of Law), John D. Feerick (Fordham University School of Law), Dave Fields (City University of New York School of Law), Martin Flaherty (Fordham University School of Law), Katherine Franke (Columbia Law School), Eric M. Freedman (Maurice A. Deane School of Law at Hofstra University), Barry Friedman (New York University School of Law), Jeanne Fromer (New York University School of Law), Kellen Funk (Columbia Law School), Raquel Gabriel (City University of New York School of Law), Paolo Galizzi (Fordham University School of Law), James A. Gardner (University at Buffalo School of Law), David Garland (New York University School of Law), Mark A. Geistfeld (New York University School of Law), Philip M. Genty (Columbia Law School), Doni Gewirtzman (New York Law School), Shubha Ghosh (Syracuse University College of Law), Maeve Glass (Columbia Law School), Cynthia Godsoe (Brooklyn Law School), Rachel T. Goldberg (Cornell Law School), Elizabeth Goldman (Benjamin N. Cardozo School of Law), Julie Goldscheid (City University of New York School of Law), Ann Goldweber (St. John\u27s University School of Law), Natalie Gomez-Velez (City University of New York School of Law), Jennifer Gordon (Fordham University School of Law), Lauryn Gouldin (Syracuse University College of Law), Elayne E. Greenberg (St. John’s University School of Law), Michelle Greenberg-Kobrin (Benjamin N. Cardozo School of Law), Abner Greene (Fordham University School of Law), Jamal Greene (Columbia Law School), Lissa Griffin (Elisabeth Haub School of Law at Pace University), Jill Gross (Elisabeth Haub School of Law at Pace University), Lisa Grumet (New York Law School), Martin Guggenheim (New York University School of Law), Jennifer A. Gundlach (Maurice A. Deane School of Law at Hofstra University), Hugh C. Hansen (Fordham University School of Law), Bernard E. Harcourt (Columbia Law School), Jonathan Harris (New York University School of Law), Melina Healey (Touro College Jacob D. Fuchsberg Law Center), Julia Hernandez (City University of New York School of Law), Tanya Hernandez (Fordham University School of Law), Helen Hershkoff (New York University School of Law), Randy Hertz (New York University School of Law), Robert A. Heverly (Albany Law School), Michael F. Higgins (University at Buffalo School of Law), Tracy Higgins (Fordham University School of Law), Alexis Hoag (Columbia Law School), Martha R. Hochberger (New York Law School), Babe Howell (City University of New York School of Law), Rob Howse (New York University School of Law), Bert I. Huang (Columbia Law School), Carmen Huertas (City University of New York School of Law), Kyron Huigens (Benjamin N. Cardozo School of Law), Tarek Z. Ismail (City University of New York School of Law), Conrad Johnson (Columbia Law School), Paula C. Johnson (Syracuse University College of Law), Kathryn Judge (Columbia Law School), Mitchell Kane (New York University School of Law), Arlene S. Kanter (Syracuse University College of Law), Ramzi Kassem (City University of New York School of Law), Constantine N. Katsoris (Fordham University School of Law), Avery Katz (Columbia Law School), Eileen Kaufman (Touro College Jacob D. Fuchsberg Law Center), Florence Kerner (City University of New York School of Law), Jocelyn Getgen Kestenbaum (Benjamin N. Cardozo School of Law), Richard Klein (Touro College Jacob D. Fuchsberg Law Center), Kate Klonick (St. John’s University School of Law), Lewis Kornhauser (New York University School of Law), Minna Kotkin (Brooklyn Law School), Anita S. Krishnakumar (St. John’s University School of Law), Rebecca M. Kysar (Fordham University School of Law), Sarah Lamdan (City University of New York School of Law), Christine Lazaro (St. John’s University School of Law), Donna Lee (City University of New York School of Law), Nicole Lefton (Maurice A. Deane School of Law at Hofstra University), Arthur S. Leonard (New York Law School), Michael Lewyn (Touro College Jacob D. Fuchsberg Law Center), Theo Liebmann (Maurice A. Deane School of Law at Hofstra University), Edward Lloyd (Columbia Law School), Stephen Loffredo (City University of New York School of Law), Grace M. Lozito (Fordham University School of Law), Shirley Lung (City University of New York School of Law), Mary Lynch (Albany Law School), James Macleod (Brooklyn Law School), Kevin Maillard (Syracuse), Matthew Main (City University of New York School of Law), Deborah C. Malamud (New York University School of Law), Michael W. Martin (Fordham University School of Law), Princess Masilungan (City University of New York School of Law), Camille Massey (City University of New York School of Law), Nancy Maurer (Albany Law School), Andrea McArdle (City University of New York School of Law), Justin McCrary (Columbia Law School), Thomas M. McDonnell (Elisabeth Haub School of Law at Pace University), Kevin McElroy (Maurice A. Deane School of Law at Hofstra University), Peggy McGuinness (St. John’s University School of Law), Estelle M. McKee (Cornell Law School), Mary Helen McNeal (Syracuse University College of Law), Suzette M. Melendez (Syracuse University College of Law), Gillian Metzger (Columbia Law School), Chi Adanna Mgbako (Fordham University School of Law), Flora Midwood (Brooklyn Law School), Kathryn Miller (Benjamin N. Cardozo School of Law), Meredith R. Miller (Touro College Jacob D. Fuchsberg Law Center), Joshua Mitts (Columbia Law School), Kate Mogulescu (Brooklyn Law School), Laura Mott (City University of New York School of Law), Elora Mukherjee (Columbia Law School), Erin Murphy (New York University School of Law), Jessica R. Murray (Syracuse University College of Law), Justin Murray (New York Law School), Melissa Murray (New York University School of Law), Michael B. Mushlin (Elisabeth Haub School of Law at Pace University), Athena D. Mutua (University at Buffalo School of Law), Smita Narula (Elisabeth Haub School of Law at Pace University), Lindsay Nash (Benjamin N. Cardozo School of Law), Robert Nassau (Syracuse University College of Law), Burt Neuborne (New York University School of Law), Elizabeth Nevins (Maurice A. Deane School of Law at Hofstra University), Leslie Newman (Benjamin N. Cardozo School of Law), Jacqueline Nolan-Haley (Fordham University School of Law), Tracy L. Norton (Touro College Jacob D. Fuchsberg Law Center), Anthony O\u27Rourke (University at Buffalo School of Law), Jonathan Oberman (Benjamin N. Cardozo School of Law), Ngozi Okidegbe (Benjamin N. Cardozo School of Law), Judith Olin (University at Buffalo School of Law), Nancy K. Ota (Albany Law School), Jason Parkin (City University of New York School of Law), G. Michael Parsons (New York University School of Law), Frank A. Pasquale (Brooklyn Law School), Russell G. Pearce (Fordham University School of Law), Deborah Pearlstein (Benjamin N. Cardozo School of Law), Talia Peleg (City University of New York School of Law), Katharina Pistor (Columbia Law School), Margot Pollans (Elisabeth Haub School of Law at Pace University), Karen Porter (Brooklyn Law School), David Pozen (Columbia Law School), Edward A. Purcell, Jr. (New York Law School), Paul Radvany (Fordham University School of Law), Aziz Rana (Cornell Law School), Martha Rayner (Fordham University School of Law), LaVonda Reed (Syracuse University College of Law), David J. Reiss (Brooklyn Law School), Alice Ristroph (Brooklyn Law School), Allie Robbins (City University of New York School of Law), Nicholas A. Robinson (Eisabeth Haub School of Law at Pace University), Ruthann Robson (City University of New York School of Law), Sarah Rogerson (Albany Law School), Joseph A. Rosenberg (City University of New York School of Law), Merrick Rossein (City University of New York School of Law), Leif Rubinstein (Touro College Jacob D. Fuchsberg Law Center), David Rudenstine (Benjamin N. Cardozo School of Law), Laura Sager (New York University School of Law), Rosemary Salomone (St. John’s University School of Law), Leslie Salzman (Benjamin N. Cardozo School of Law), Faraz Sanei (New York University School of Law), Carol Sanger (Columbia Law School), Margaret L. Satterthwaite (New York University School of Law), John Henry Schlegel (University at Buffalo School of Law), Elizabeth Schneider (Brooklyn Law School), Jeanne Schroeder (Benjamin N. Cardozo School of Law), Jason Schultz (New York University School of Law), Beth G. Schwartz (Fordham University School of Law), Elizabeth Scott (Columbia Law School), Helen S. Scott (New York University School of Law), Robert E Scott (Columbia Law School), Anthony Sebok (Benjamin N. Cardozo School of Law), Courtney Selby (St. John’s University School of Law), Rena Seplowitz (Touro College Jacob D. Fuchsberg Law Center), John Sexton (New York University School of Law), Houman Shadab (New York Law School), Colleen Shanahan (Columbia Law School), Jeremy Sheff (St. John’s University School of Law), Theodore Silver (Touro College Jacob D. Fuchsberg Law Center), Jocelyn Simonson (Brooklyn Law School), Janet Sinder (Brooklyn Law School), Charisa Smith (City University of New York School of Law), Rachel H. Smith (St. John’s University School of Law), Jeff Sovern (St. John’s University School of Law), Jane M. Spinak (Columbia Law School), Christopher Sprigman (New York University School of Law), Edward Stein (Benjamin N. Cardozo School of Law), John Paul Steines Jr. (New York University School of Law), Jed Stiglitz (Cornell Law School), Katherine Strandburg (New York University School of Law), Susan Sturm (Columbia Law School), Daniel E Subotnik (Touro College Jacob D. Fuchsberg Law Center), Deborah Sundquist O’Malley (Syracuse University College of Law), Olivier Sylvain (Fordham University School of Law), Mary Szto (Syracuse University College of Law), Mateo Taussig-Rubbo (University at Buffalo School of Law), Nelson Tebbe (Cornell Law School), Ruti Teitel (New York Law School), Leslie Y. Garfield Tenzer (Elisabeth Haub School of Law at Pace University), Maria Termini (Brooklyn Law School), Steven Thel (Fordham University School of Law), Kendall Thomas (Columbia University), Monica Todd (Syracuse University), Erin Tomlinson (City University of New York School of Law), Cora True-Frost (Syracuse University College of Law), Jacob Victor (Albany Law School), Rachel Vorspan (Fordham University School of Law), Amy Wallace (New York Law School), Matthew Wansley (Benjamin N. Cardozo School of Law), Ettie Ward (St. John’s University School of Law), G. Ray Warner (St. John’s University School of Law), Daniel Warshawsky (New York Law School), Ian Weinstein (Fordham University School of Law), Samuel N. Weinstein (Benjamin N. Cardozo School of Law), Richard H. Weisberg (Benjamin N. Cardozo School of Law), Robert Wertheimer (Cornell Law School), John Whitlow (City University of New York School of Law), Andrew Williams (New York University School of Law), Rev. Dr. Yvette Wilson-Barnes (City University of New York School of Law), Charles M. Yablon (Benjamin N. Cardozo School of Law), Ellen Yaroshefsky (Maurice A. Deane School of Law at Hofstra University), Steven Zeidman (City University of New York School of Law), Benjamin C. Zipursky (Fordham University School of Law