Consumer Law

Debate on Forced Arbitration With Alan Kaplinsky

By Deepak Gupta

by Deepak Gupta

This week, the Legal Talk Network hosted a debate over mandatory arbtiration between me and Alan Kaplinsky, a corporate defense lawyer known for pioneering the use of arbtiration clauses by banks and lenders. 

I was surprised by how open Alan was about the real purpose of forced arbitration: to foreclose any possibility of class actions alleging that his clients have violated consumer protection laws, and to avoid being held accountable by juries. You can listen to a podcast of the debate at at this link, or download it as an MP3.  (Coincidentally, in another one of this week's podcasts, you can hear U.S. District Judge William Young of Boston, a well-regarded trial judge, discuss the implications of mandatory arbtiration for the future of the civil jury trial.)

Alan's repeated attempt in our discussion to use empirical studies to prove the legitimacy of forced arbtiration reminded me of a really excellent law review article that I've been meaning to plug here.  It's a piece called Mandatory Arbitration and Fairness, by David Schwartz of the University of Wisconsin, and it appeared earlier this year in the Notre Dame Law Review. Professor Schwartz makes a persuasive case for the view that the empirical question is the wrong question to be asking in the first place, and that it's a mistake for consumer and civil rights advocates to get bogged down in the empirical debate. It gets the "burden of proof" wrong, and it stands in the way of more meaningful and fundamental questions about fairness. "Interposing [the] empirical question as a hurdle to legislative reform would be a strategic victory for mandatory arbitration supporters," Schwartz writes, "because there is a good likelihood that a definitive answer is years away, and perhaps unattainable."

Full post as published by CL&P Blog on August 28, 2009 (boomark / email).