Author: George A. Bermann*
Published: March 2012
Description: The Supreme Court’s most recent “trilogy” of arbitration law rulings – Stolt-Nielsen, Rent-A-Center and AT&T Mobility v. Concepcion – deserves the lavish attention it has been receiving, as evidenced by the contributions of Tom Stipanowich and Alan Rau in this special issue. Professors Stipanowich and Rau rightly view the three rulings as “of a piece,” revealing a determination on the part of the Court’s majority to enhance the autonomy and effectiveness of arbitration as a dispute resolution mechanism, even at the expense of consumer welfare. The trilogy has the result, and most likely the purpose, of weakening safeguards that had traditionally served to ensure the fairness of arbitral adjudication, while keeping arbitration at a safe distance from dispute resolution on a class-wide basis. By all accounts, the trilogy’s chief beneficiaries are those economic actors best capable of protecting their own interests in the contracting process. Like past Supreme Court trilogies in the arbitration field, the present trilogy represents a coordinated movement of the case law, a movement that Professors …
*Jean Monnet Professor of European Union Law and Walter Gellhorn Professor of Law, Columbia Law School; professeur affilié, Sciences Po, Ecole de Droit.