Selected Publications for David S. Schwartz

URL iconMandatory 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.

URL iconIf 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

URL iconCorrecting Federalism Mistakes in Statutory Interpretation: the Supreme Court and the Federal Arbitration Act, 67 Law & Contemp. Prob. 5 (2004)

Final published version.

pdf icon FAA and Federalism

Author: David S. Schwartz

Working draft of "Correcting Federalism Mistakes," cited prior to October 2004.

pdf icon Green Tree v. Bazzle, Law Professors' Amicus Brief

URL iconState Judges as Guardians of Federalism: Resisting the FAA's Encroachment on State Law

wpd icon 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."

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