The End of Doctrine: Private Arbitration, Public Law and the Anti-Lawsuit Movement

Abstract

This story begins in 1980, when a budding anti-lawsuit movement found an energetic champion in a new conservative president. Over time, the movement became a dominant feature of political life, as its narrative of activist judges, jackpot justice and a thriving lawsuit industry stirred partisan passions. And yet, some thirty years on, it is clear that the primary legacy of the anti-lawsuit movement is the movement itself – not legislative achievements, which have been few and far between, but committed adherents, including future Supreme Court Justices, lower court judges, and business leaders. Meanwhile, and also in the early 1980s, federal courts began a long, slow, and initially apolitical process of invigorating the staid legal backwater of arbitration. Over the next thirty years, arbitration came fully of age. By 2013, the Supreme Court had held that companies may freely and openly use provisions mandating one-on-one, confidential arbitration in standard form agreements with employees, consumers and others to escape the judicial system – and avoid potential exposure to class actions. And finally, over these same thirty years, class actions became a dominant force in litigation, having managed to dodge the most serious reform initiatives of the anti-lawsuit movement. Class actions – for better or for worse – have proven to be extremely powerful weapons in a wide variety of subject-matter areas, accounting for billions of dollars in damages settlements. Companies of all stripes dearly want to avoid class exposure. And so, as these three movements have unfolded over the past thirty years – separately and together – we are now at a unique point in our legal history: one that portends, quite literally, the end of doctrinal development in entire areas of the law. Companies, anxious to avoid any and all exposure to class actions are highly motivated to insert confidential, one-on-one arbitration mandates into the standard-form agreements that, over these same thirty years, have come to govern their relationships with employees, consumers, direct purchasers, and all manner of counterparties. As a result, all disputes under these agreements – whether they would have otherwise been brought as class or individual claims – will now be shunted into the hermetically-sealed vault of private arbitration, where there is no public, transparent decision-making process, much less stare decisis or common law development.