Class-Action Waivers, Binding Arbitration, and Access to Justice: The Vindication of Rights Doctrine after AT&T v. Concepcion

Abstract

This paper argues that the vindication of rights doctrine, articulated most recently by the Court in Green Tree Financial Corp.- Alabama v. Randolph, has a historic basis in Anglo-American jurisprudence and is a key part of the Supreme Court's arbitration jurisprudence, making possible the Court's shift from distrust of arbitration of constitutional and statutory rights to trust. On this view, the vindication of rights doctrine survives Concepcion and remains capable of invalidating preclusive arbitration clause class-action waivers. Rather than, as some courts and commentators now suggest, abrogating or eviscerating the vindication of rights doctrine, Concepcion makes clear the Court's rejection of solutions like Discover Bank that would exempt broad categories of claims from arbitration's reach, and places an even greater impetus on the courts to police the development of arbitration as an adequate alternative to class actions through the vigorous enforcement of the vindication of rights doctrine.