ABSTRACT
Commentators largely agree that arbitration today is a far cry from what Congress envisioned when it enacted the Federal Arbitration Act (FAA) a century ago. The contrast has become particularly stark in the past decade, with plaintiffs bringing collective ‘mass arbitration’ claims and defendants responding with elaborate, oftentimes inscrutable, procedural rules for ‘batching’ claims in a way that stalls and divides individual plaintiffs.
To understand the current state of arbitration and how to respond, this Article offers a new perspective of arbitration that chronicles its use as both a tool of, and defense against, employees and consumers exercising solidarity through collective representation. This phenomenon predates the FAA and has only intensified since the advent of mass arbitration in recent years.
With that historical perspective in mind, this Article scrutinizes new defendant-friendly arbitration rules governing ‘batching’ of arbitration claims, revealing that defendants reserve for themselves the benefits of consolidated litigation, most importantly the resolution of all claims in a single proceeding, while providing few of the safeguards for plaintiffs that exist in civil proceedings. As these arbitration procedures increasingly take on the characteristics and complexity of collective litigation in court, I ultimately argue that comparable procedures are needed in arbitration. To that end, the Article provides a template for new arbitration rules that provide clarity for courts and due process for parties while honoring the underlying goals of private dispute resolution.
Pfeffer-Gillet, Alexi, The New Arbitration Rules (July 3, 2025).
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