This Essay describes and critiques the U.S. Supreme Court's recent misadventures with class arbitration. First, the Essay reviews the origins and rise of class arbitration under the FAA, particularly following the Supreme Court's Bazzle decision. In Part II, the Essay discusses application of the unconscionability doctrine to class action waivers, under the California courts' Discover Bank doctrine. In Part III, the Essay recounts the Supreme Court's retrenchment from class arbitration in Stolt-Nielsen and, more fully, in Concepcion. It also critiques the Court's apparent analysis in Concepcion and offers an alternative analysis for the Concepcion result that is more consistent with the FAA and its purposes.
Gary Born and Claudio Salas,
United States Supreme Court and Class Arbitration: A Tragedy of Errors, The Symposium,
2012 J. Disp. Resol.
Available at: https://scholarship.law.missouri.edu/jdr/vol2012/iss1/3