Mandatory Arbitration and Fairness
This article argues there is no "fairness" justification for imposing a dispute resolution system through adhesion contracts. The economic incentives of the mandatory arbitration system only work by reducing the prospects of plaintiffs with high-cost/ high-stakes cases. And while shifting the empirical "burden of proof" onto critics is clever rhetorical strategy, in fact it is the egalitarian argument for mandatory arbitration that is empirically unfounded as well as illogical.
If You Love Arbitration, Set it Free: How 'Mandatory' Undermines 'Arbitration'
By forcing employment and consumer cases into the mandatory arbitration system, the Supreme Court's interpretation of the Federal Arbitration Act has created inexorable pressures to judicialize arbitration, thereby tending to undermine what is valuable about arbitration as a dispute resolution process
Final published version.
Author: David S. Schwartz
Working draft of "Correcting Federalism Mistakes," cited prior to October 2004.
Green Tree v. Bazzle, Law Professors' Amicus Brief
State Judges as Guardians of Federalism: Resisting the FAA's Encroachment on State Law
Prisoners of Langdell: Shouldn't the New Legal Realism Have a New Case Method?
Author: David S. Schwartz
A manifesto on teaching and a call for the creation of a "new case method."