To put it mildly, the relationship between the Federal Arbitration Act (FAA)and class actions is controversial. Since 2010, the U.S. Supreme Court has decided a rash of cases that make it impossible for the millions of consumers and employees who are subject to forced arbitration clauses to aggregate claims. Opinions such as AT&T Mobility LLC v. Concepcion have made class arbitration waivers bulletproof. Likewise, in Lamps Plus, Inc. v. Varela, the Court prohibited judges and arbitrators from interpreting an arbitration provision that does not expressly authorize class arbitration to permit such proceedings. Dozens of policymakers, lower courts, journalists, interest groups, and academics have objected that placing the onus on individuals to arbitrate their own small dollar complaints functions as a “‘[g]et out of jail free’ card” for corporate liability.
Nevertheless, Professor Hila Keren’s Divided and Conquered: The Neoliberal Roots and Emotional Consequences of the Arbitration Revolution manages to say something new about the “arbitration revolution.” This invited response to her article has two goals. First, this Response will discuss why I admire her piece while also flagging one constructive criticism. Second, this Response will use her analysis as the springboard to discuss the budding phenomenon of mass arbitration.