Outsourcing Justice

Outsourcing Justice
Author: Imre Szalai
Publisher:
Total Pages: 0
Release: 2013
Genre: Arbitration and award
ISBN: 9781611632026

Arbitration is a method of dispute resolution in which parties agree to submit their dispute to a private, neutral third person, instead of a traditional court with a judge and jury. This private system of arbitration, which is often confidential and secretive, can be a polar opposite, in almost every way, to the public court system. Over the past few decades, arbitration agreements have proliferated throughout American society. Such agreements appear in virtually all types of consumer transactions, and millions of American workers are bound by arbitration agreements in their employment relationships. America has become an "arbitration nation," with an increasing number of disputes taken away from the traditional, open court system and relegated to a private, secretive system of justice. How did arbitration agreements become so widespread, and enforceable, in American society? Prior to the 1920s, courts generally refused to enforce such agreements, and parties had the right to bring their disputes to court. However, during the 1920s, Congress and state legislatures suddenly enacted ground-breaking laws declaring that arbitration agreements are "valid, irrevocable, and enforceable." Drawing on previously untapped archival sources, this book explores the many different people, institutions, forces, beliefs, and events that led to the enactment of modern arbitration laws during the 1920s, and this book examines why America's arbitration laws radically changed during this period. By examining this history, this book demonstrates how the U.S. Supreme Court has grossly misconstrued these laws and unjustifiably created an expansive, informal, private system of justice touching almost every aspect of American society and impacting the lives of millions. Professor Szalai maintains a blog on arbitration at outsourcingjustice.com. "Recommended. General readers, upper-division undergraduate students, and above." -- CHOICE Magazine

Closing the Courthouse Door

Closing the Courthouse Door
Author: Erwin Chemerinsky
Publisher: Yale University Press
Total Pages: 280
Release: 2017-01-10
Genre: Law
ISBN: 0300224907

A leading legal scholar explores how the constitutional right to seek justice has been restricted by the Supreme Court The Supreme Court s decisions on constitutional rights are well known and much talked about. But individuals who want to defend those rights need something else as well: access to courts that can rule on their complaints. And on matters of access, the Court s record over the past generation has been almost uniformly hostile to the enforcement of individual citizens constitutional rights. The Court has restricted who has standing to sue, expanded the immunity of governments and government workers, limited the kinds of cases the federal courts can hear, and restricted the right of habeas corpus. Closing the Courthouse Door, by the distinguished legal scholar Erwin Chemerinsky, is the first book to show the effect of these decisions: taken together, they add up to a growing limitation on citizens ability to defend their rights under the Constitution. Using many stories of people whose rights have been trampled yet who had no legal recourse, Chemerinsky argues that enforcing the Constitution should be the federal courts primary purpose, and they should not be barred from considering any constitutional question.

The Conservative Case for Class Actions

The Conservative Case for Class Actions
Author: Brian T. Fitzpatrick
Publisher: University of Chicago Press
Total Pages: 283
Release: 2019-11-01
Genre: Law
ISBN: 022665933X

Since the 1960s, the class action lawsuit has been a powerful tool for holding businesses accountable. Yet years of attacks by corporate America and unfavorable rulings by the Supreme Court have left its future uncertain. In this book, Brian T. Fitzpatrick makes the case for the importance of class action litigation from a surprising political perspective: an unabashedly conservative point of view. Conservatives have opposed class actions in recent years, but Fitzpatrick argues that they should see such litigation not as a danger to the economy, but as a form of private enforcement of the law. He starts from the premise that all of us, conservatives and libertarians included, believe that markets need at least some rules to thrive, from laws that enforce contracts to laws that prevent companies from committing fraud. He also reminds us that conservatives consider the private sector to be superior to the government in most areas. And the relatively little-discussed intersection of those two beliefs is where the benefits of class action lawsuits become clear: when corporations commit misdeeds, class action lawsuits enlist the private sector to intervene, resulting in a smaller role for the government, lower taxes, and, ultimately, more effective solutions. Offering a novel argument that will surprise partisans on all sides, The Conservative Case for Class Actions is sure to breathe new life into this long-running debate.

Diffusion of Deregulatory Policies Through Litigation

Diffusion of Deregulatory Policies Through Litigation
Author: Barbara A. Cherry
Publisher:
Total Pages: 0
Release: 2016
Genre:
ISBN:

U.S. deregulatory policies have been eroding consumer protection remedies for telecommunications and broadband access services. However, most policymakers and telecommunications policy researchers are familiar with the erosion that has resulted from industry-specific actions by federal or state legislatures or regulatory agencies. This paper describes further erosion resulting from telecommunications' carriers' pursuit of deregulatory strategies through judicial litigation of cases involving bodies of law applicable to businesses generally. A prominent example of such strategic use of judicial litigation is the U.S. Supreme Court decision (5-4 vote) in AT&T Mobility v. Concepcion, 563 U.S. 333 (2011), which eliminated customers' judicial remedies with respect to standardized contracts, known as contracts of adhesion, for the provision of mobile services. In this case, the U.S. Supreme Court expansively interpreted the Federal Arbitration Act of 1925 (FAA) to preempt state law remedies related to consumer contracts. The Court's decision enforced AT&T Mobility's mandatory arbitration clause and class action waiver in its consumer contracts, thereby barring consumers' access to judicial remedies. Moreover, the Court's interpretation is not confined to contracts for mobile telecommunications services, but is generally applicable to consumer contracts in other industries. Since AT&T Mobility v. Concepcion, the U.S. Supreme Court has declined to retrench from its radical interpretation of the FAA, notwithstanding assertions of policymakers and scholars that such interpretation is inconsistent with Congress' legislative intent. Instead, the Court has reaffirmed its interpretation of the FAA in subsequent decisions, most recently in DirectTV, Inc. v. Imburgia (2015), 577 U.S. ___. This paper explains why the FCC's Open Internet Order (2015), known as the network neutrality order, is insufficient to fully compensate for the loss of judicial remedies for consumers of telecommunications and broadband services resulting from AT&T Mobility v. Concepcion. In this regard, the U.S. Supreme Court's interpretation of the FAA did not acknowledge the coexistence of industry-specific regulation under the Communications Act of 1934 - a critical oversight that needs to be corrected through legislation or potentially further judicial litigation. This paper also explains that, beyond its inconsistency with Congressional legislative intent, the Court's interpretation of the FAA in AT&T Mobility v. Concepcion has created adverse systemic effects for political and economic governance by undermining the role of private enforcement mechanisms both generally under the American legal regime and specifically within the telecommunications sector. Illustratively, Margaret Radin (2013), a legal expert in U.S. contract law, asserts in Boilerplate: The Fine Print, Vanishing Rights, and The Rule of Law (Princeton University Press) that the resultant loss of consumer remedies related to contracts of adhesion constitutes normative degradation of the legal system and undermines the rule of law. It also deprives individuals of access to the constitutional right of jury trials. This paper concludes, stressing how this policy trajectory in the U.S. contrasts greatly with those in Canada and the European Union, which have significantly increased consumer rights, both generally and in the telecommunications sector. [This abstract is not being submitted for presentation in the poster session.].