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Tainted Love: an Increasingly Odd Arbitral Infatuation in Derogation of Sound and Consistent Jurisprudence

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Tainted Love: an Increasingly Odd Arbitral Infatuation in Derogation of Sound and Consistent Jurisprudence Scholarly Commons @ UNLV Boyd Law Scholarly Works Faculty Scholarship 2012 Tainted Love: An Increasingly Odd Arbitral Infatuation in Derogation of Sound and Consistent Jurisprudence Jeffrey W. Stempel University of Nevada, Las Vegas -- William S. Boyd School of Law Follow this and additional works at: https://scholars.law.unlv.edu/facpub Part of the Dispute Resolution and Arbitration Commons Recommended Citation Stempel, Jeffrey W., "Tainted Love: An Increasingly Odd Arbitral Infatuation in Derogation of Sound and Consistent Jurisprudence" (2012). Scholarly Works. 746. https://scholars.law.unlv.edu/facpub/746 This Article is brought to you by the Scholarly Commons @ UNLV Boyd Law, an institutional repository administered by the Wiener-Rogers Law Library at the William S. Boyd School of Law. For more information, please contact [email protected]. Tainted Love: An Increasingly Odd Arbitral Infatuation in Derogation of Sound and Consistent Jurisprudence Jeffrey W. Stempel* infatuate 1: to cause to be foolish: deprive of soundjudgment 2: to inspire with afoolish or extravagant love or admiration.' love la(1): a strong affection for another arising out of kinship or personal ties .. (3): affection based on admiration, benevolence, or common interests.. 2: warm attachment, enthusiasm, or devotion ... 3a: the object of attachment, devotion, or admiration.2 I. INTRODUCTION: WHAT KIND OF "LOVE" IS THIS? Collectively, the U.S. Supreme Court, even if not "in love" with arbitration, appears to at least have a serious attachment to arbitration, subject to revision only in the service of other questionable preferences, such as support for the comparatively richer and more powerful litigant. In that sense, the Court's pronounced, but intellectually inconsistent, preferences for arbitration reflect a reckless, impure, or tainted love rather than the type of mature, realistic affection society generally sets forth as exemplary. The Court has an unrealistically sanguine view of the wonders of arbitration-so sanguine that it is willing in most cases to * Doris S. & Theodore B. Lee Professor of Law, William S. Boyd School of Law, University of Nevada Las Vegas. Thanks to Bill Boyd, Doris Lee, Ted Lee, Ann McGinley, Jim Rogers, and John White as well as to David McClure, Jennifer Anderson, Sabrina Dolson, Elizabeth Ellison, and Jeanne Price for valuable research assistance. Thanks also to Stephen Ware, Christopher Drahozal, and the University ofKansas Law Review for arranging this symposium and its resulting papers. 1. MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 597 (10th ed. 1996). 2. Id. at 690. The dictionary definition of "love" has been edited to exclude, among other irrelevant definitions, "attraction based on sexual desire." See id. at 690. 3. A case can be made that in arbitration cases the Court is being dispassionately calculating in its result-orientation and disregard for its professed polestars of sound judicial decision-making. If this is the case, then the Court's performance in arbitration cases is even more contemptible in that it implies blatant misuse of judicial power rather than merely being led astray by arbitration's overall popularity. 795 HeinOnline -- 60 U. Kan. L. Rev. 795 2011-2012 796 KANSAS LAW REVIEW [Vol. 60 impose arbitration in situations far exceeding those envisioned by the drafters of the Federal Arbitration Act 4 and despite significant issues of states' rights, the quality of contract consent, the fairness of the arbitration tribunal, and the overall operation of the dispute resolution system. But at crucial junctures, the Court strains to rein in arbitration when concerned that the arbitration might reach results the Court dislikes or come to resemble litigation-particularly aggregate litigation. During the past three decades, the U.S. Supreme Court's approach to arbitration disputes has been more than just mere affection for arbitration, but it has also lacked the nuanced understanding and realistic appraisal associated with true love. Rather, the Court's arbitration decisions have reflected something more like a crush or obsession that tends to distort judgment, much as a person in the grip of infatuation views the object of that affection as though it has no faults and with blinders as to the contextual realities surrounding this outpouring of often one-sided emotion.5 This uncritical amore for arbitration-and a corresponding, if subconscious, derogation of litigation, at least if resorted to by consumers or employees-has produced a body of Federal Arbitration Act jurisprudence that has been something far short of the U.S. Supreme Court's finest hour. But at the same time, the Court has resembled the suitor-or perhaps an overbearing parent having "birthed" an expansion of mandatory arbitration -in that it loves something only when it does what is expected. The Court loves arbitration, but only when arbitration functions as the Court thinks it should. Where arbitration seeks to embrace class-wide solutions to disputes, the Court's amore turns almost to anger.7 In fact, it seems that the only time the Court does not make 4. 9 U.S.C. §§1-16 (2006). The Court in its decisions often uses the short form "FAA" for the Act, which is grating and even confusing. Prior to the modern era of substantial Supreme Court arbitration jurisprudence, the acronym FAA was synonymous with "Federal Aviation Administration," and so it will remain in this article, where the Federal Arbitration Act will be referred to as the "Act" or the "Arbitration Act." 5. This Article talks of the "Court" primarily as a matter of shorthand, recognizing of course that many of the Court's arbitration decisions have divided the Justices, including some 5-4 votes on important issues. To be sure, some Justices are not under the spell of arbitration, but the Court as a whole has been under such a spell from approximately the mid-1980s to the present. 6. See infra notes 167-287 and accompanying text (discussing the Court's mid-1980s move from viewing the Arbitration Act as setting procedural law for federal courts to treating the act as substantive federal law). 7. See infra notes 355-74, 386-423 and accompanying text (discussing Stolt-Nielsen v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758 (2010); AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011)). HeinOnline -- 60 U. Kan. L. Rev. 796 2011-2012 2012] TAINTED LOVE 797 figurative goo-goo eyes about the wonder of arbitration is when the Court thinks that arbitration has become too close to litigation by seeking class-wide treatment of disputes,8 which is something largely opposed by the business community with which the Court is arguably even more infatuated. 9 The Court's embrace of arbitration suggests both infatuation and fickleness. Infatuation, at least in adjudication, is perhaps something worse than blind or even erratic love in that infatuation connotes the type 8. In Concepcion, the Court did both. See supra notes 386-423 and accompanying text It- rather, five out of nine of its Justices-lavishly praised arbitration while simultaneously suggesting that all of these wonderful attributes of arbitration were eradicated if the arbitration involved class- wide treatment of a dispute. See notes 386-423 and accompanying text. 9. See generally ERWIN CHEMERINSKY, THE CONSERVATIVE ASSAULT ON THE CONSTITUTION (2010) (noting the degree to which the Court in recent years has favored business litigants and results generally regarded as ideologically and politically conservative); J. Mitchell Pickerill, Something Old, Something New, Something Borrowed, Something Blue, 49 SANTA CLARA L. REV. 1063, 1063 (2009) ("Since John Roberts assumed the Chief Justiceship, the proportion of the docket devoted to business litigation appears to have increased; outcomes seem more likely to favor business interests; and the Court seems to be more consensual in its pro-business decisions, with divisions seemingly defying the expected conservative-liberal blocs."); Jeffrey Rosen, Big Business and the Roberts Court, 49 SANTA CLARA L. REv. 929, 932-34 (2009); Jeffrey Rosen, Supreme Court Inc., N.Y. TIMES, Mar. 16, 2008, at MM38; David G. Savage, High Court Is Good for Business, L.A. TIMES, June 21, 2007, at Al; David G. Savage, Supreme Court Gives Firms a Stronger Hand, L.A. TIMES, June 25, 2011, at BI ("The Supreme Court, which winds up its term Monday, has once again shown itself to be highly skeptical of large lawsuits against big business, regardless of whether the suits are intended to protect workers, consumers or the environment."). Dean Chemerinsky in fact uses the practical impact of the Court's arbitration cases as an example of unreasonable, pro-business jurisprudence. See CHEMERINSKY, supra, at 227-31 (criticizing Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001)); infra notes 320-28 and accompanying text (discussing Circuit City). As Dean Chemerinsky explained: Several years ago, I bought a new computer from Dell. I was about to teach the material on arbitration to my first-year civil procedure class and decided to read the fine print that came with the agreement accompanying the computer. There was a clause that said that by buying the computer and by turning it on, I was agreeing that any dispute that I would have with Dell would go to arbitration and not to a jury trial. I sent a letter back to Dell saying, "I do not consent to this and by opening my letter you hereby consent that I can take you to court." I am pleased to report that the computer worked fine and that I had no occasion for suing Dell. [This example and another given earlier in the book] are illustrations of a national trend toward businesses demanding arbitration whenever possible and rejecting courts and jury trials. .. Yale law professor Judith Resnik has documented . .. [that] businesses prefer arbitration . [in part because there is] an institutionalized bias among arbiters in favor of repeat players in the system.
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