An Erie Doctrine for Arbitration

Arbitration has become a staple of modern dispute resolution—the alternative par excellence to court adjudication for almost “every type of justiciable claim.”[1]  Its rise can largely be attributed to the use of arbitration clauses, contractual provisions that require legal claims be resolved in informal, non-judicial forums.[2]  What’s more, arbitration clauses received federal imprimatur over a century ago in the Federal Arbitration Act (FAA).[3]  There, Congress provided that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist . . . for the revocation of any contract.”[4]  In this way, the FAA enshrines “a liberal federal policy favoring arbitration.”[5]

But every preference has its limits.  An arbitration clause may not prospectively waive a “party’s right to pursue statutory remedies.”[6]  In other words, “[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by [a] statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.”[7]  Called the “effective vindication doctrine,” this rule establishes a procedure-substance dichotomy for arbitral enforcement of federal rights—a kind of Erie for arbitration.

That line might have been difficult to draw; determining where procedure ends and substance begins is a notoriously difficult question.[8]  But with respect to arbitration, American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2014) spared lawyers and contracting parties the trouble.  Taken seriously, American Express establishes a brightline rule for the arbitration of statutory rights: substantive rights are formal; arbitration is procedural; and the ability to pursue a formal right does not guarantee an affordable procedural path for its vindication.[9]

This Essay argues that American Express was correctly decided.  Part I provides a general description of the FAA as well as modern arbitration jurisprudence.  Part II argues that the procedure-substance distinction articulated by American Express was consistent with the original understanding of the FAA, precedent, and modern litigation practice.  It also responds to criticisms that modern arbitration jurisprudence stymies the development of public law.

I. Arbitration: A Brief History

In 1925, the FAA was enacted to counter widespread judicial hostility to arbitration.[10]  Originally intended to cover merchant-to-merchant agreements,[11] the FAA now touches consumer contracts,[12] investment transactions,[13] and relationships of every kind.[14]  As a result, the use of arbitration clauses predictably expanded,[15] which was consonant with the FAA’s default preference for their enforcement.[16]  The nature of arbitration procedures, however, changed over time.  Today, arbitral procedures are generally informal, bilateral, and a matter of contract.[17]  That is to say, the arbitration envisioned by the FAA is procedural, not substantive.

A brief review of recent jurisprudence is instructive.  Specifically, I consider the class arbitration trilogy: Stolt-Nielson S.A. v. AnimalFeeds International, 130 S.Ct. 1758 (2010), AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011), and American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2014).

Stolt-Nielsen involved an arbitration clause “silent” on the issue of class procedures.[18]  Lacking a basis in agreement, imposition of such procedures was held to be improper.[19]  As a matter of contract, parties can choose “the issues they [wish] to arbitrate,” “the rules under which [   ] arbitration will proceed,” “who will resolve specific disputes,” and “with whom they” will arbitrate.[20]  And though an arbitrator may fashion procedures to effectuate the parties’ intent, class procedures cannot be imposed without consent.[21]  That is because aggregation fundamentally “changes the [baseline] nature of arbitration.”[22]  Instead of informality, efficiency, and lower costs—hallmarks of bilateral arbitration—class arbitration entails rigidity, high stakes, and procedural formalism.[23]  For that reason, Stolt-Nielsen held that the mere agreement to arbitrate, without more, does not justify the imposition of class procedures.[24]

AT&T Mobility doubled down on Stolt-Nielson’s conception of arbitration as informal, bilateral, and contractual.  In AT&T Mobility, California’s Discover Bank rule—which invalidated class arbitration waivers in certain consumer contracts of adhesion—was held preempted by the FAA[25]; the rule operated to specially disfavor arbitration and imposed class procedures in contravention of the parties’ agreement.[26]  As observed in Stolt-Nielsen, “the switch from bilateral to class arbitration sacrifices the principal advantage of arbitration—its informality—and makes the process slower, more costly, and more likely to generate procedural morass than final judgment.”[27]  Indeed, procedural formality is required by class arbitration to safeguard the interests of absent parties.[28]  And that is to say nothing of the “in terrorem” effect of exposure to aggregate damages in a single arbitral proceeding.[29]  To be sure, the Discover Bank rule was intended to facilitate the prosecution of “small-dollar claims.”  “But [s]tates cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.”[30]

The procedural nature of arbitration was most fully explored in American Express.  There, an arbitration clause prohibited the prosecution of claims on a classwide basis.[31]  The challengers—alleging federal antitrust violations—argued the clause was unenforceable; because bilateral arbitration was prohibitively expensive, the agreement ran afoul of the effective vindication doctrine.[32]  The agreement was ultimately upheld.[33]  Alleged statutory violations may be arbitrated “unless the FAA’s mandate has been ‘overridden by a contrary congressional command.’”[34]  And nothing in the antitrust laws suggested any such intent with respect to class arbitration.[35]  Indeed, the federal antitrust statutes “were enacted decades before the advent of Federal Rule of Civil Procedure 23.”[36]

Nor did the clause in American Express run afoul of the effective vindication doctrine.  “[T]he fact that it is not worth the expense involved in proving a statutory remedy does not . . . eliminat[e] . . . the right to pursue the remedy.”[37]  And mere permission to pursue relief on a collective or class basis “d[oes] not mean that individual attempts at conciliation were intended to be barred.”[38]  Any other understanding of effective vindication would simply prove unworkable.  Asking federal courts to determine “the legal requirements for success on the merits, . . . the evidence necessary to meet those requirements, the cost of developing that evidence, and the damages that would be recovered in the event of success” is not just fanciful at the outset of a legal action, but also would “destroy the prospect of speedy resolution that arbitration . . . [i]s meant to secure.”

The upshot of this trilogy is this: the FAA “favor[s] the absence of litigation”[39]; arbitration is presumptively informal, bilateral, and a matter of contract; statutory rights are formal rights; substantive law does not necessarily provide an affordable path for vindication; and class procedures are purely procedural, and therefore, waivable.  That sharp division between procedure and substance replicates a kind of Erie doctrine for arbitration.

II. The FAA: Theory & Practice

Unsurprisingly, modern arbitration jurisprudence has received its fair share of criticism.  As the dissent in American Express put it, “Too darn bad”[40] seems to be the rejoinder given to plaintiffs forced to arbitrate low value claims.  That criticism is unfair and inaccurate—unfair for its treatment of precedent and the FAA; inaccurate for its comparison to a non-existent public law ideal.

Part II.A discusses the original understanding of the term “arbitration” as used in the FAA, and concludes that in 1925, as now, arbitration was understood in procedural, not substantive terms.  As such, American Express’s formalist conception of rights is well-founded.  Part II.B argues that American Express faithfully applied the effective vindication doctrine.  Because arbitration is a procedural swap, aggregation mechanisms—which are procedural in nature—may be bargained away.  Part II.C argues that critics of American Express wrongly suggest the decision undermines substantive law.  That criticism assumes that claims allegedly lost in arbitration would be meritorious, survive the Federal Rules of Civil Procedure, and actually result in greater recovery for plaintiffs.  Of course, that is not necessarily the case.

A. The Original Understanding of Arbitration

Traditional proxies for public meaning illustrate how arbitration was understood when the FAA was adopted.  Contemporary dictionaries defined it as procedural and informal.  Bouvier’s Law Dictionary defined “arbitration” as “the investigation and determination of a matter  . . . between contending parties, by one or more unofficial persons chosen by the parties.”[41]  Webster’s defined “arbitration” as “the hearing and determination of a case . . . by a person or persons chosen by the parties . . . instead of the judicial tribunal provided by law,” and specifically noted that “[t]he scope and method of arbitration are not bound by the rigid rules or legal procedure which are binding upon a judicial tribunal.”[42]  Both definitions appear in caselaw.[43]

Legal usage also confirmed arbitration’s procedural nature. Mid-20th century laws—reflecting growing commercial sentiment—sought to enable courts “especially in matters of procedure, to free themselves from anachronistic rules and precedents which are opposed to principles and standards of modern jurisprudence.”[44]  To that end, it was believed “the law ought not to intervene and render arbitration agreements ineffective.”[45]

That was a change from the common law default rule, which held arbitration agreements revocable at will.[46]  Indeed, non-enforcement of arbitration clauses pervaded state and federal forums before the advent of arbitration statutes.[47]  New York was the first to change suit.  Indeed, the express purpose of the New York Arbitration Law was to alter the common law presumption of revocability.[48]  New York’s law—the statutory precursor to the FAA—was enacted in 1920, and provided that “[a] provision in a written contract to settle by arbitration a controversy . . . shall be valid, enforcible [sic] and irrevocable, save upon such grounds as exist at law for the revocation of any contract.”[49]

That statute was understood in procedural terms.  Interpreting the New York Arbitration Law, then-state Supreme Court Justice Benjamin Cardozo noted that “[a]rbitration is a form of procedure whereby differences may be settled.  It is not a definition of the rights and wrongs out of which differences grow.”[50]  In this way, arbitration was considered a substitute for trial by jury, a right “that may be waived.”[51]  Recovery, however, was not guaranteed: consent to arbitrate was given “in view of the possibility that a better remedy might come.”[52]  Whatever the outcome, the parties “took the chances of the future” and “must abide by its vicissitudes.”[53]  Like American Express, then, early judicial interpretations held that “arbitration statute[s] relate[ ] to the remedy, and not to substantive rights.”[54]

Cardozo’s definition of arbitration was shared by many.[55]  In fact, it was adopted by federal courts construing the FAA and similar state statutes.[56]  So, courts recognized that “[a]rbitration statutes or judicial recognition of the enforceability of such provisions d[id] not confer a substantive right, but [only] a remedy for the enforcement of the right which [wa]s created by the agreement of the parties.”[57]  In other words, contemporary constructions of the FAA and state analogues foretold the procedure-substance decision articulated in American Express: “[a] cause of action and the right to prosecute it, whether in the federal or state courts, grew out of the written contract . . . and not out of the agreement for arbitration.  The latter was merely a method of procedure adopted by the parties for the settlement of controversies arising thereunder, without litigation.”[58]

B. Procedure, Substance, & Effective Vindication

American Express also faithfully applied the effective vindication doctrine.  To start, it recognized the difference between proving and pursuing statutory remedies—that is, between access to arbitral forums and the cost of marshaling proof.[59]  “[T]he fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy.”[60]  Rather, to run afoul of the effective vindication doctrine, an arbitration clause must eliminate a remedy, the right to pursue it, or impose arbitrary barriers to entry—like exorbitant filing fees—that prevent access to the arbitral forum.[61]

That comports with precedent.  Even at its genesis, the effective vindication doctrine understood that “[b]y agreeing to arbitrate . . . a party does not forgo the substantive rights afforded by [a] statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.”[62]  Arbitration, then, simply “trades the procedures and opportunity for review of the courtroom for [   ] simplicity, informality, and expedition.”[63]  And “th[ose] streamlined procedures . . . do not entail any consequential restriction on substantive rights.”[64]

The dissent in American Express argues that the effective vindication doctrine bars arbitration wherever a claimant shows the costs of proving their case are “prohibitive.”[65]  It contends that “[n]o rational actor would bring a claim worth tens of thousands of dollars if doing so meant incurring costs in the hundreds of thousands.”[66]  That is true, as far as it goes.  But it isn’t very far.  For one thing, that criticism is not unique to arbitration—claimants face the same choice in litigation, which is perhaps more expensive.  For another thing, proving prospective costs of arbitration is not only speculative, but also imposes an additional expense that individual claimants may be unable to bear.

Taken to its logical conclusion, the American Express dissent would create a substantive right to aggregation procedures in cases with “prohibitively” expensive claims.  That result is flatly inconsistent with the understanding of class and collective action mechanisms as procedural.[67]  Indeed, as a general matter, the effective vindication doctrine does not bar individual arbitration of statutory rights which may proceed on a collective basis.[68]  Mere statutory permission for collective action “d[oes] not mean that individual attempts at conciliation were intended to be barred.”[69]  Rather, under the FAA, a claimant seeking to escape arbitration must show “Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.”[70]  That is the rare case.

C. Arbitration & Public Law

Some have criticized American Express—and arbitration more generally—for contributing to the “erosion” of public law.[71]  But the FAA is public law.  It just happens to be a law that “favor[s] the absence of litigation.”[72]  As noted above, the effective vindication doctrine adequately accounts for whether Congress wished to prohibit arbitration of certain statutory claims.  In this respect, public law critiques of American Express just beg the question: as a substantive statute, doesn’t the FAA express a preference for private adjudication of statutory rights?

Critics might reply that the FAA has been applied far beyond its original purpose, to encompass contracts of adhesion rather than merchant commercial agreements.[73]  But no such limitation appears in the statutory text, which confirms—along with the legislative history—that the scope of the FAA was co-extensive with Congress’s authority under the Commerce Clause.[74]  And to the extent critics are uncomfortable with how arbitration agreements are struck, the time is long since past when “consumer contracts [a]re anything other than adhesive.”[75]

In any case, it is far from clear that litigation would actually foster the development of public law that critics of American Express desire.  The overwhelming majority of cases end in settlement.[76]  And even when that is not the case, the public law critique tends to assume substantive law evolves in claimants’ favor.[77]  That is not always—or even ordinarily—the case.  So, the public law critique not only rests on a false premise that is inconsistent with the FAA, but also demands more to show its alternative is claimant-friendly.

***

American Express announced a clear framework for applying the FAA.  And its Erie-doctrine for arbitration has a surprising pedigree.  This Essay has endeavored to show that American Express’s procedure-substance distinction is consistent with contemporary constructions of the FAA, the effective vindication doctrine as originally understood, and Congress’s preference for less “public law” when alternative dispute procedures are bargained-for.  And to that extent, current jurisprudence is well founded.

This Essay does not, however, take a normative stance on arbitration, generally, or of certain statutory claims, in particular.  Arbitration “may or may not be a desirable substitute for trials in courts.”[78]  But parties adopting it “must be content with its informalities; they may not hedge it about with those procedural limitations which it is precisely” designed “to avoid”[79]; and “[t]hey must content themselves with looser approximations to the enforcement of their rights than those that the law accords them, when they resort to its machinery.”[80]  American Express reaffirms and applies that teaching.  As a result, it was rightly decided.

[1] See J. Maria Glover, Disappearing Claims and the Erosion of Substantive Law, 125 Yale L.J. 3052, 3054 (2015).

[2] See id. at 3059–64; Myriam Gilles, Opting Out of Liability: The Forthcoming, Near-Total Demise of the Modern Class Action, 104 Mich. L. Rev. 373, 393–96 (2005).

[3] See The United States Arbitration Act, Pub. L. No. 68-401, 43 Stat. 883 (1925) (codified as amended at 9 U.S.C. §§ 1–14 (2000)).

[4] 9 U.S.C. § 9.

[5] Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983).

[6] See Mitsubishi Motors Corp v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 n.19 (1985).

[7] See id. at 628.

[8] See, e.g., Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 414–15 (2010) (plurality opinion) (“[A]ssessing whether a Federal Rule regulates substance or procedure is not always easy . . . [But] the basic difficulty is unavoidable . . . [T]here is no escaping the substance-procedure distinction.”); Gasperini v. Ctr. For Humanities, Inc., 518 U.S. 415, 427 (1996) (“Classification of a law as ‘substantive’ or ‘procedural’ for Erie purposes is sometimes a challenging endeavor.”); Erie R. Co. v. Tompkins, 304 U.S. 64, 92 (1938) (Reed, J., concurring) (“The line between procedural and substantive law is hazy.”).

[9] See Am. Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304, 2309–12 (2014).

[10] AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740, 1745 (2011); Glover, supra note 1, at 3059–60.

[11] See, e.g., Sales and Contracts to Sell in Interstate and Foreign Commerce, and Federal Commercial Arbitration: Hearing on S. 4213 and S. 4214 Before a Subcomm. of the S. Comm. on the Judiciary, 67th Cong., 4th Sess., 9 (1923) (statement of W.H.H. Piatt) (explaining that the FAA “is purely an act to give the merchants the right or the privilege of sitting down and agreeing with each other as to what their damages are, if they want to do it”); id. (statement of Sen. Walsh) (explaining that the FAA does not apply to “take it or leave it” contracts of adhesion); Joint Hearings on S. 1005 and H.R. 646 Before the Subcomms. of the Comms. of the Judiciary, 68th Cong., 1st Sess., 18 (1924) (statement of Julius H. Cohen) (stating that the FAA was drafted for “busisnessmen”).

[12] See, e.g., DIRECTV, Inc. v. Imburgia, 136 S.Ct. 463, 468–71 (2015) AT&T Mobility, 563 U.S. at 341–52; Mitsubishi Motors Corp v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628–40  n.19 (1985)

[13] See, e.g., Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 481–84 (1989).

[14] See, e.g., Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S.Ct. 1421, 1426–29 (2017) (nursing home contract); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 29–35 (1991).

[15] Glover, supra note 1, at 3061 (noting the use of arbitration agreements has “proliferated”); Jean R. Sternlight, Creeping Mandatory Arbitration: Is It Just?, 57 Stan. L. Rev. 1631, 1631–42 (2005).

[16] See supra note 5.

[17] AT&T Mobility, 131 S.Ct. at 1746–53; Am. Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304, 2309–12 (2014).

[18] Stolt-Nielson S.A. v. AnimalFeeds International, 130 S.Ct. 1758, 1764–66 (2010).

[19] Id. at 1775 (“[A] party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.”) (emphasis in original).

[20] Id. at 1774 (emphasis omitted).

[21] See id. at 1775.

[22] See id.

[23] See id. at 1775–76.

[24] Id. at 1776.

[25] AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740, 1753 (2011).

[26] AT&T Mobility, 131 S.Ct. at 1747–53.

[27] Id. at 1751.

[28] Id.

[29] Id. at 1752.

[30] Id. at 1753.

[31] Am. Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304, 2308 (2014).

[32] Id.

[33] Id. at 2312.

[34] Id. at 2309 (quoting CompuCredit Corp. v. Greenwood, 132 S.Ct. 665, 668–69 (2012) (quotation marks and citation omitted)).

[35] Id. at 2309–10.

[36] Id. at 2309.

[37] Id. at 2311 (emphasis in original).

[38] Id. (quotation marks and citation omitted).

[39] See id. at 2312 n. 5.

[40] See id. at 2313 (Kagan, J., dissenting).

[41] Bouvier’s Law Dictionary 225 (3d. ed.); accord Donahue & Son v. White, 9 Pa. D. & C. 303, 304 (Pa. Ct. Com. Pl. 1927); J Purdy Cope Hotels Co. v. Liverpool & London Globe Ins. Co., 18 Pa. D. & C. 712, 714 (Pa. Ct. Com. Pl. 1932).

[42] Donahue & Son, 9 Pa. D. & C. at 304; J Purdy Cope Hotels Co., 18 Pa. D. & C. at 714.

[43] See id.

[44] Atl. Fruit Co. v. Red Cross Line, 276 F. 319, 322 (2d Cir. 1921); see also Note, The Effect of an Arbitration Agreement on the Statute of Limitations, 40 Harv. L. Rev. 1139, 1139 n.4 (1927) (defining arbitration as a “determination by an impartial person or persons, designated or to be chosen in some defined manner, of any or all matters arising under a contract which may be in dispute between the parties”).

[45] See id.

[46] See Shafer v. Metro-Goldwyn-Mayer Dist. Corp., 172 N.E. 689, 693 (Oh. Ct. App. 1929).

[47] See Lappe v. Wilcox, 14 F.2d 861, 864 (N.D.N.Y. 1926) (“Prior to the enactment of this state statute, arbitration agreements were in disfavor and were not enforced by the state courts.  In the federal courts, also, arbitration agreements were in disfavor and were not enforced.”) (internal citations omitted).

[48] See, e.g., Shafer, 172 N.E. at 693; Lappe, 14 F.2d at 864; Atl. Fruit Co. v. Red Cross Line, 5 F.2d 218, 219 (2d Cir. 1924); Atl. Fruit Co., 276 F. at 322; see also Lionel S. Popkin, Judicial Construction of the New York Arbitration Law of 1920, 11 Cornell L. Rev. 329 (1926).

[49] New York Laws of 1920, Ch. 275, Sect. 2, effective Apr. 19, 1920.

[50] In re Berkovitz, 130 N.E. 288, 270 (N.Y. 1921).

[51] See id. at 273.

[52] See id. at 274.

[53] See id.

[54] See Lappe, 14 F.2d at 864.

[55] See Elec. Research Prods., Inc. v. Vitaphone Corp., 171 A. 738, 748 (Del. Ch. 1934); Shafer, 172 N.E. at 693; Lappe, 14 F.2d at 864; Atl. Fruit Co, 276 F. at 322; Cal. Prune & Apricot Growers’ Ass’n v. Catz Am. Co., 60 F.2d 788, 792–93 (9th Cir. 1932).

[56] Cal. Prune & Apricot Growers’ Ass’n., 60 F.2d at 793 (1932) (collecting cases) (explaining that “[f]ederal [c]ircuit [c]ourts . . . and [f]ederal [d]istrict [c]ourts in numerous jurisdictions” endorsed Cardozo’s formulation); Pac. Indem. Co. v. Ins. Co. of N. Am., 25 F.2d 930, 931 (9th Cir. 1928) (FAA); Lappe, 14 F.2d at 864 (New York Arbitration Law); Atl. Fruit Co., 5 F.2d at 219 (New York Arbitration Law).

[57] Atl. Fruit Co., 276 F. at 323.

[58] See Cal. Prune & Apricot Growers’ Ass’n, 60 F.2d at 790.

[59] Am. Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304, 2311 (2014).

[60] See id. (emphasis in original).

[61] See id. at 2310–11; Green Tree Fin. Corp. – Ala. v. Randolph, 121 S.Ct. 513, 521–22 & n.6 (2000).

[62] Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 105 S.Ct. 3346, 3354 (1985).

[63] Id.

[64] Shearson/Am. Express, Inc. v. McMahon, 107 S.Ct. 2332, 2340 (1987).

[65] Am. Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304, 2314–16 (2014) (Kagan, J., dissenting) (citing Green Tree, 121 S.Ct. at 521–22 & n.6).

[66] Id. at 2316.

[67] Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 130 S.Ct. 1431, 1442–48 (2010) (plurality).

[68] Gilmer v. Interstate/Johnson Lane Corp., 111 S.Ct. 1647, 1655 (1991).

[69] See id. (quotation marks and citation omitted); accord Am. Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304, 2311 (2014).

[70] Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 105 S.Ct. 3346, 3354–55 (1985); accord Shearson/Am. Express, Inc. v. McMahon, 107 S.Ct. 2332, 23d37–38 (1987); Am. Express Co., 133 S.Ct. at 2309.

[71] Glover, supra note 1.

[72] Am. Express Co., 133 S.Ct. at 2312 n.5.

[73] See supra, note 11.

[74] See, e.g., 9 U.S.C. § 2 (supporting enforcement of arbitration clauses in “[a] written provision in any . . . contract evidencing a transaction involving commerce”); id. § 1 (defining “commerce” as “commerce among the several States or with foreign nations, or in any Territory of the United States or in the District of Columbia, or between any such Territory and another, or between any such Territory and any State or foreign nation, or between the District of Columbia and any State or Territory or foreign nation”); H.R. Rep. No. 96, 68th Cong., 1st Sess., 1 (1924) (explaining the FAA’s “control over interstate commerce reaches not only the actual physical interstate shipment of goods but also contracts relating to interstate commerce”); Joint Hearings on S. 1005 and H.R. 646 Before the Subcomms. of the Comms. of the Judiciary, 68th Cong., 1st Sess., 7, 16 (1924); Allied-Bruce Terminix Cos., Inc. v. Dobson, 115 S.Ct. 834 (1995).

[75] AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740, 1750 (2011).

[76] See Langston and Cohen, Civil Bench and Jury Trials in State Courts, 2005, Bureau of Justice Statistics Special Report, October 2008 (noting that 97 percent of cases settle before trial).

[77] It is beyond the scope of this Essay to assess whether claimants are more successful in litigation or arbitration.  But any empirical claims of that sort must standardize the merits of comparator cases as well as the transaction costs involved in litigation and arbitration.

[78] Am. Almond Prods. Co. v. Consol. Pecan Sales Co., 144 F.2d 448, 451 (2d Cir. 1944) (Hand, J.).

[79] See id.

[80] See id.

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