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For decades, the class action has been in the crosshairs of defense-side procedural warfare. Repeated attacks on the class action by the defense bar, the U.S. Chamber of Commerce, and other defense-side interest groups have been overwhelmingly successful. None proved more successful than the “arbitration revolution”—a forty- year campaign to eliminate class actions through forced arbitration provisions in private contracts. The effects for civil justice have been profound. Scores of claims vanished from the civil justice landscape—claims concerning civil rights, wage theft, sexual harassment, and consumer fraud. The effects for social justice, racial justice, gender justice, and economic justice were especially profound, as the legal claims of minorities, women, wage-and- hour workers, and the working poor were systematically and disproportionately foreclosed.

Yet now, just when one would expect the defense bar to be taking a victory lap, prominent defendants are abandoning the hard-fought right to disable the class action through arbitration and instead seeking refuge in class actions in court. Why the about face? A surprising counter-offensive to use individual arbitration to plaintiffs’ advantage—Mass Arbitration. This Article presents a foundational analysis of the subject.

This Article develops the first and only case study of Mass Arbitration and provides a taxonomy of the results. What emerges is not a variation on old themes but, instead, a new and distinct model of dispute resolution. The investigation reveals significant ways in which the Mass Arbitration model challenges conventional litigation theory wisdom about the economics of individual claiming, uncovers important differences between the Mass Arbitration model and existing forms of aggregate dispute resolution, recasts long-standing debates in litigation theory and jurisprudence, and provides new perspectives on the relationships among private procedural ordering, public procedural reform, and civil justice. Mass Arbitration, in other words, is a phenomenon in its own right. More importantly, it offers a window into the future of civil justice.

Publication Citation

74 Stan. L. Rev. 1283 (2022).