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- Title
Arbitration or Exculpation?
- Authors
Hilliard, Sam
- Abstract
Over the past two decades, the Supreme Court has issued a series of decisions construing the Federal Arbitration Act. The practical effect Of these has been to functionally preclude meritorious, yet economically powerless, individual claimants from asserting their claims in arbitration. The primary mechanism.for this has been an ad hoc canon of construction imposed on lower courts that requires that they construe agreements to arbitrate as implicitly disallowing classwide arbitration. By preventing this means of cost-sharing, the Court has insulated powerful defendants from liability for their unla~ful activity. I call the worst of these arbitration-cum-class-waiver provisions "functionally exculpatory clauses," because in some circumstances they make it impossible for plainti#k to obtain meaningful relief This Note argues that the Court should recognize kinctionally exculpatory clauses as such and direct lower courts to exclude them from the Federal Arbitration Act's mandatory enforcement. If the Federal Arbitration Act does not apply to functionally exculpatory clauses, then state contract law will control their disposition.
- Subjects
UNITED States Arbitration Act; EXCULPATORY clauses (Contracts); WAIVER; ARBITRATORS; UNITED States. Supreme Court
- Publication
Texas Law Review, 2024, Vol 102, Issue 4, p809
- ISSN
0040-4411
- Publication type
Article