Mandatory arbitration and fairness

Notre Dame Law Review

Volumn 84, Issue 3, 2009, Pages 1247-1341

  Schwartz, David S ^a  

^a UNIVERSITY OF WISCONSIN LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 67649559728     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (372)

1. "Mandatory arbitration" refers to arbitration pursuant to an adhesive, predispute arbitration agreement. For further elaboration of these concepts and the surrounding arguments, see, for example, Jean R. Sternlight, Creeping Mandatory Arbitration: Is It Just?, 57 STAN. L. REV. 1631, 1631-33 and n. l (2005).
2. I have abandoned my effort to relabel the term "compelled arbitration. " Compare David S. Schwartz, If You Love Arbitration, Set It Free: How "Mandatory" Undermines "Arbitration, " 8 NEV. LJ. 400, 400 n. l (2007) [hereinafter Schwartz, If You Love Arbitration] (using the term "mandatory arbitration" to describe these agreements), with David S. Schwartz, Enforcing Small Print to Protect Big Business: Employee and Consumer Rights Claims in an Age of Compelled Arbitration, 1997 WIS. L. REV. 33, 37 and n. 10 [hereinafter Schwartz, Enforcing Small Print] (using the term "compelled arbitration").
3. 9 U. S. C. §§ 1-14 (2006).
4. See, e.g., Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265 (1995) (upholding an arbitration clause imposed on consumer purchasing termite extermination services);
5. Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 (1991) (upholding an arbitration agreement against employee);
6. Southland Corp. v. Keating, 465 U. S. 1 (1984) (upholding an arbitration agreement against franchisee).
7. See, e.g., Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 123 (2001) (extolling virtues of mandatory arbitration).
8. Compare Mandatory Binding Arbitration Agreements: Are They Fair for Consumers?: Hearing Before the Subcomm. on Commercial and Administrative Law of the H. Comm. on the Judiciary, 110th Cong. 1 (2007) [hereinafter Mandatory Binding Arbitration Agreements] (statement of Rep. Linda Sanchez, Chairwoman, Subcomm. on Commercial and Administrative Law), available at http://judiciary.house.gov/hearings/printers/110th/36018.pdf ("[M]andatory arbitration agreements may not always be in the best interests of consumers."), with id. at 3 (statement of Rep. Chris Cannon, Member, Subcomm. on Commercial and Administrative Law) ("The use of mandatory binding arbitration clauses has risen not because companies want to disadvantage consumers, but because companies increasingly believe they need to protect themselves from abusive class action suits."). Legislative reform at the state level has been almost entirely precluded by a series of U. S. Supreme Court decisions holding that the FAA preempts state law. See generally David S. Schwartz, The Federal Arbitration Act and the Power of Congress over State Courts, 83 OR. L. REV. 541, 546-62 (2004) (discussing these cases and criticizing their "incoherence").
9. The Arbitration Fairness Act of 2009, introduced in the House on February 19, 2009, would amend the FAA to provide that: "No predispute arbitration agreement shall be valid or enforceable if it requires arbitration of- (1) an employment, consumer, or franchise dispute; or (2) a dispute arising under any statute intended to protect civil rights or to regulate contracts or transactions between parties of unequal bargaining power." H. R. 1020, 111th Cong. § 4 (2009) (quotation marks omitted). Identical bills were introduced in the House and Senate in 2007. See S. 1782, 110th Cong. § 4 (2007) (providing identical language);
10. H. R. 3010, 110th Cong. § 4 (2007) (same). The passage of this legislation in the foreseeable future appears promising as the Democrats have won the White House and expanded their majorities in both the House and Senate in the 2008 elections.
11. See, e.g., Jean R. Sternlight, Introduction: Dreaming About Arbitration Reform, 8 NEV. L. J. 1, 3-4 (2007) (keynoting symposium exploring legislative revision to FAA).
12. See, e.g., Omri Ben-Shahar, How Bad Are Mandatory Arbitration Terms?, 41 U. MICH. J. L. REFORM 777, 779 (2008) ("We simply do not know enough facts to pass a judgment on arbitration as a mandatory procedure.");
13. Theodore Eisenberg and Elizabeth Hill, Arbitration and Litigation of Employment Claims: An Empirical Comparison, DISP. RESOL. J., Nov. 2003-Jan. 2004, at 44, 49 ("[M]any people expect employee claimants to fare worse in arbitration than in litigation. Yet we find the opposite....");
14. Samuel Estreicher, Saturns for Rickshaws: The Stakes in the Debate over Predispute Employment Arbitration Agreements, 16 OHIO ST. J. ON DISP. RESOL. 559, 565 (2001) (concluding that "[w]ithout better empirical studies" it cannot be settled that employees fare worse in arbitration);
15. Peter B. Rutledge, Whither Arbitration, 6 GEO. J. L. and PUB POL'Y 549, 551-52 (2008) ("[T]he proper question is whether elimating predispute arbitration agreements for wide swaths of the economy yields a net benefit. That is the burden confronting the advocates of arbitration reform and one that, based on my review of the available empirical evidence, they have not met.");
16. David Sherwyn et al., Assessing the Case for Employment Arbitration: A New Path for Empirical Research, 57 STAN. L. REV. 1557, 1578 (2005) ("[T]here is no evidence that plaintiff's fare significantly better in litigation. ").
17. See Eisenberg and Hill, supra note 8, passim; Estreicher, supra note 8, at 567-68; Sherwyn et al., supra note 8, at 1581 n. 124; David Sherwyn, Because It Takes Two: Why Post-Dispute Voluntary Arbitration Programs Will Fail to Fix the Problems Associated with Employment Discrimination Law Adjudication, 24 BERKELEY J. EMP. and LAB. L. 1, 31-38 (2003). I use the term "employer" and "employee" deliberately: this is how supporters frame the argument. They discuss far less often the consumer and franchise settings. See infra Part LB.
18. See, e.g., Mandatory Binding Arbitration Agreements, supra note 5, at 113 (statement of Rep. William D. Delahunt, Member, Subcomm. on Commercial and Administrative Law) ("Then I think it is an issue of what we do as a Committee, as a Congress, where it is documented, where if it can be documented by solid studies that implicate a scientific methodology, that there are abuses relative to consumers.");
19. see also id. at 123-24 (statement of Rep. Cannon) (appending empirical studies into the record).
20. See Estreicher, supra note 8, at 563-64.
21. Professor Sternlight took an important first step in addressing this argument directly, in a recent article. See Jean R. Sternlight, In Defense of Mandatory Binding Arbitration (If Imposed on the Company), 8 NEV. L. REV. 82, 105-106 (2007) (suggesting that if arbitration is to be mandatory at all, it should be mandatory against the company, with an opt-out available to employees).
22. See supra note 1.
23. See Schwartz, Enforcing Small Print, supra note 1, at 60-62 (detailing the reasons why defendants tend to prefer arbitration). Significantly, the contracting relationship in question is heavily regulated, because the drafting parties (employers, sellers, and franchisors) have demonstrated histories of using their superior bargaining position to overreach. That regulation also means that a significant proportion of the cases forced into the arbitration system in this way involve public law disputes.
24. The doctrinal history of mandatory arbitration has been well explained. See, e.g., Paul D. Carrington and Paul H. Haagen, Contract and Jurisdiction, 1996 SUP. CT. REV. 331, 339-79;
25. Joseph R. Grodin, Arbitration of Employment Discrimination Claims: Doctrine and Policy in the Wake of Gilmer, 14 H. L. J. 1, 7-16 (1996) ;
26. Jean R. Sternlight, Panacea or Corporate Tool?: Debunking the Supreme Court's Preference for Binding Arbitration, 74 WASH. U. L. Q. 637, 644-74 (1996) ;
27. Katherine Van Wezel Stone, Mandatory Arbitration of Individual Employment Rights: The Yellow Dog Contract of the 1990s, 73 DENV. U. L. REV. 1017, 1020-36 (1996). Following the lead of the U. S. Supreme Court in Southland Corp. v. Keating, 465 U. S. 1, 10 (1984), most federal and state courts have enthusiastically endorsed mandatory arbitration, reading a "national policy favoring arbitration" into the FAA. See, e.g., Commerce Park v. Mardian Constr. Co., 729 F.2d 334, 338 (5th Cir. 1984). Among judges, the debate currently exists only at the margins-in public speeches or dissenting opinions by a small minority of judges, or in the occasional cases where an arbitration agreement adds on unusually unfair terms. See, e.g., Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1285-90 (9th Cir. 2006). Otherwise, courts routinely order cases into arbitration pursuant to adhesive, predispute agreements, irrespective of the type of claim involved or the relative bargaining positions of the parties. See Schwartz, Enforcing Small Print, supra note 1, at 107-09.
28. See 9 U. S. C. §§ 9-10 (2006).
29. Critics of mandatory arbitration have argued vigorously that forcing cases out of the courts and into a private dispute resolution system chosen by the corporate defendant is procedurally unfair, nonconsensual, wholly at odds with the regulation of the contracting relationships, and probably unconstitutional. See, e.g., Richard C. Reuben, Public Justice: Toward a State Action Theory of Alternative Dispute Resolution, 85 CAL. L. REV. 577, 636-41 (1997);
30. Schwartz, Enforcing Small Print, supra note 1, at 106-21;
31. Jean R. Sternlight, Rethinking the Constitutionality of the Supreme Court's Preference for Binding Arbitration: A Fresh Assessment of Jury Trial, Separation of Powers, and Due Process Concerns, 72 TUL. L. REV. 1, 6, 10-14 (1997). Supporters of mandatory arbitration have taken various approaches to these procedural unfairness arguments. Some have argued that freedom of contract trumps consent. See, e.g., Stephen J. Ware, Arbitration Clauses, Jury-Waiver Clauses, and Other Contractual Waivers of Constitutional Rights, 67 LAW and CONTEMP. PROBS. 167, 182-93 (2004) ;
32. Stephen J. Ware, Consumer Arbitration As Exceptional Consumer Law (With a Contractualist Reply to Carrington and Haagen), 29 MCGEORGE L. REV. 195, 209-13 (1998). Others have argued that economic efficiency makes arbitration clauses reasonable, justifying their enforcement in the absence of consent as with any adhesion contract. See, e.g., Christopher R. Drahozal and Keith N. Hylton, The Economics of Litigation and Arbitration: An Application to Franchise Contracts, 32 J. LEGAL STUD. 549, 558-62 (2003). The most common response of supporters, however, has been to skirt these issues by simply assuming that the current judicial endorsement of mandatory arbitration makes it unnecessary to defend the practice, so long as mandatory arbitration meets constitutional minimum standards of due process. See, e.g., Laurie Leader and Melissa Burger, Let's Get a Vision: Drafting Effective Arbitration Agreements in Employment and Effecting Other Safeguards to Insure Equal Access to Justice, 8 EMP. RTS. and EMP. POL'Y J. 87, 107-21 (2004) (claiming that predispute arbitration clauses have the "potential to... provide a cost-effective alternative to litigation" but recognizing the need for a well-drafted agreement to insure due process). Such supporters elaborate on their willingness to raise the due process floor, but generally assert that serious abuses are either too rare for concern or can be controlled by arbitrator self-regulation or occasional judicial regulation at the margins. See, e.g., Michael Z. Green, Debunking the Myth of Employer Advantage from Using Mandatory Arbitration for Discrimination Claims, 31 RUTGERS L. J. 399, 429-31 (2000). For discussions of the particular problem of arbitration clauses with particular, unconscionable terms, see Christopher R. Drahozal, "Unfair" Arbitration Clauses, 2001 U. ILL. L. REV. 695, 705-20;
33. Amy J. Schmitz, Embracing Unconscionability's Safety Net Function, 58 ALA. L. REV. 73, 98-102 (2006) ;
34. David S. Schwartz, Understanding Remedy-Stripping Arbitration Clauses: Validity, Arbitrability, and Preclusion Principles, 38 U. S. F. L. REV. 49, 53-65 (2003) ;
35. W. Mark C. Weidemaier, The Arbitration Clause in Context: How Contract Terms Do (and Do Not) Define the Process, 40 CREIGHTON L. REV. 655, 657-73 (2007).
36. See infra Part II.
37. See infra Part III. In legal parlance, the claiming party in litigation is the "plaintiff, " whereas the claiming party in arbitration is called the "claimant." For purposes of this Article, I will not take pains to maintain that distinction; I've found that using the two terms more or less interchangeably eases exposition without sacrificing clarity.
38. See, e.g., Schwartz, Enforcing Small Print, supra note 1, at 60-66.
39. See, e.g., Alexander J. S. Colvin, Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury?, 11 EMP. RTS. and EMP. POL'Y J. 405, 412-37 (2007) (reviewing empirical research).
40. See, e.g., Lewis L. Maltby, Private Justice: Employment Arbitration and Civil Rights, 30 COLUM. HUM. RTS. L. REV. 29, 48 (1998) (supporting the conclusion that those who arbitrate fare just as well as those who litigate, in part, on an empirical outcome study that compared mean damages awarded in arbitration and litigation as a percentage of the damages demanded).
41. In the past, the "mandatory arbitration fairness" argument had less prominence because it seemed to be merely a hobby horse of arbitration industry partisans: defense attorneys representing companies that use mandatory arbitration clauses, arbitrators, or persons with employment or fiduciary relationships to arbitration vendors. See, e.g., Maltby, supra note 22, at 30. Maltby was and is a member of the American Arbitration Association Board of Directors. Id. at 29; see also AM. ARBITRATION ASS'N, 2007 PRESIDENT'S LETTER and FINANCIAL STATEMENTS 10 (2008), available at http://www.adr.org/si.asp?id=5299 (listing Lewis Maltby as member of the AAA Board of Directors).
42. See Estreicher, supra note 8, at 563-68; Sherwyn et al., supra note 8, at 1578-81; Sherwyn, supra note 9, at 67-68.
43. See, e.g., Estreicher, supra note 8, at 563-68; Sherwyn et al., supra note 8, 1581-90.
44. See, e.g., Colvin, supra note 21, passim; Eisenberg and Hill, supra note 8, passim; see also Sherwyn et al., supra note 8, at 1563-78 (reviewing empirical research). Other commercial settings may have received insufficient attention. For example, many small agricultural producers are subject to adhesive arbitration clauses in their contracts with powerful buyers; these contracts are not captured by the employee, consumer, or franchisee labels. See, e.g., Doug O'Brien, Policy Approaches to Address Problems Associated with Consolidation and Vertical Integration in Agriculture, 9 DRAKE J. AGRIC. L. 33, 46 and n. 87 (2004). I thank my colleague Peter Carstensen for alerting me to this issue.
45. See, e.g., Perry v. Thomas, 482 U. S. 483, 489-91 (1987) (holding that the FAA preempts the California Labor Code section providing for an administrative proceeding to recover unpaid wages);
46. Fuentes v. DirecTV, 245 F. App'x 408, 409-10 (5th Cir. 2007) (upholding an injunction against a state small claims action to protect a district court order compelling arbitration).
47. See Stephen H. Legomsky, Deportation and the War on Independence, 91 CORNELL L. REV. 369, 408 (2006) ("[E]xecutive-branch tribunals are usually assumed to be 'faster, cheaper, and procedurally simpler and less formal than courts.'" (quoting STEPHEN H. LEGOMSKY, IMMIGRATION AND THE JUDICIARY 283 (1987))).
48. See, e.g., Sherwyn et al., supra note 8, at 1578; see also Michael Delikat and Morris M. Kleiner, Comparing Litigation and Arbitration of Employment Disputes: Do Plaintiff's Better Vindicate Their Rights in Litigation?, A. B. A. CONFLICT MGMT., Winter 2003, at 1, 11 ("[W]e find no statistical support for the proposition advanced by the EEOC and other opponents of pre-dispute arbitration that arbitration is somehow biased against claimants.").
49. Perhaps Exhibit A in the empirical case for the unfairness of mandatory arbitration should be the recent study by Professor Colvin. Based on the largest sample of arbitration cases analyzed to date, he concludes (with caveats) that the data "suggest that employee win rates and damage awards are lower than indicated by the earlier studies and lower than those in litigation. " Colvin, supra note 21, at 445. In addition, a reinterpretation of two misleadingly presented statistical analyses-where the authors claim to have shown arbitration to be outcome neutral to claimants-lends further empirical support to critics of mandatory arbitration's unfairness. See infra notes 130, 172-76 and accompanying text.
50. I'm aware of no serious empirical study actually confirming this-perhaps because there is little academic interest in confirming the obvious. Thus, my evidence for the point is necessarily impressionistic and anecdotal. A February 2009 Lexis search for the term "compel arbitration" in the federal court cases database produced 1668 cases. In a random sampling of 50 decisions in which one of the parties was a consumer or employee, it was the corporate defendant who moved to compel arbitration, and the consumer or employee who resisted arbitration, in all 50 cases. When it comes to advocacy, members of the defense bar invariably take the side in favor of mandatory arbitration, whereas representatives of consumers or employees virtually always oppose it. See, e.g., Arbitration Fairness Act of 2007: Hearing on H. R. 3010 Before the Subcomm. on Commercial and Administrative Law of the H. Comm. on the Judiciary, 110th Cong. 1 (2007) (statement of Cathy Ventrell-Monsees, plaintiff's employment attorney) (testifying against mandatory arbitration agreements);
51. Mandatory Arbitration Agreements, supra note 5, at 5 (statement of F. Paul Bland, Jr., consumer attorney) (testifying against mandatory arbitration agreements);
52. id. at 43 (statement of Mark J. Levin, defense attorney) (testifying in favor of mandatory arbitration agreements);
53. PUB. CITIZEN, THE ARBITRATION TRAP 13-27 (2007), available at http://www.citizen.org/ documents/ArbitrationTrap.pdf (providing the results of a study by a consumer advocacy group opposing arbitration);
54. ERNST and YOUNG, OUTCOMES OF ARBITRATION 8-14 (2004), available at http://www.adrforum.com/ rcontrol/documents/ResearchStudiesAndStatistics/2005ErnstAndYoung.pdf (relating the results of a study commissioned by defense law firms and the American Bankers Association ultimately finding that mandatory arbitration is favorable to consumers) ;
55. Delikat and Kleiner, supra note 29 (advocacy piece favoring mandatory arbitration, and coauthored by the chair of a large law firm's employment defense practice);
56. Nat'l Employment Lawyers Ass'n, Advocacy: Mandatory Arbitration (last visited March 4, 2009), http://www.nela.org/NELA/index.cfrn?event= ShowPage&pgmandarbitration (policy statement of an employee advocacy group opposing mandatory arbitration). This has held true in my personal experience in nearly a dozen panels or symposia on mandatory arbitration.
57. To be sure, many scholars view contract terms as presumptively enforceable. But this normative position itself requires an argument-it is not a universally accepted starting point among legal commentators. Compare Randy E. Barnett, Some Problems with Contract as Promise, 77 CORNELL L. REV. 1022, 1028 (1992) (arguing that manifestations of consent make contract terms presumptively enforceable), with Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 HARV. L. REV. 1173, 1262 (1983) ("Contracts of adhesion should be enforced only to achieve particular social purposes, and not as a matter of general right.").
58. See, e.g., Lagatree v. Luce, Forward, Hamilton and Scripps LLP, 88 Cal. Rptr. 2d 664, 688 n. 31 (Cal. Ct. App. 1999) (rejecting the "conclusory" assertion that an arbitration agreement lessened the potential plaintiff's' liability in violation of a state statute voiding exculpatory contract clauses).
59. For this reason, contract terms seeking to control disputing processes have had a mixed history in their prima facie enforceability. See, e.g., Carrington and Haagen, supra note 15, at 358-59.
60. See, e.g., Circuit City Stores v. Adams, 532 U. S. 105, 122-23 (2001) ("[F]or parties to employment contracts... there are real benefits to the enforcement of arbitration provisions.");
61. Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 26 (1991) ("[W]e recognized that '[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.'" (second alteration in original) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 628 (1985)));
62. Landis v. Pinnacle Eye Care, 537 F.3d 559, 563 (6th Cir. 2008) ("Arbitration presents a fair opportunity for a claimant to present and prevail on a claim.");
63. Rosenberg v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 170 F.3d 1, 14 (1st Cir. 1999) (identifying a "presumption that arbitration provides a fair and adequate mechanism for enforcing statutory rights").
64. See supra note 31; see also Jared Lyles, The Buying of Justice: Perversion of the Legal System Through Interest Groups' Involvement with the Partisan Election of Judges, 27 LAW and PSYCHOL. REV. 121, 132 (2003) ("[I]n those 100 cases arbitration questions split along predictable lines: 'Justices whose election campaigns are funded by plaintiff's' lawyers oppose arbitration, whereas justices whose campaigns are funded by business favor arbitration. '" (quoting Stephen J. Ware, Money, Politics and Judicial Decisions: A Case Study of Arbitration Law in Alabama, 15J. L. and Pol. 645, 661 (1999)));
65. David Sherwyn et al., In Defense of Mandatory Arbitration of Employment Disputes: Saving the Baby, Tossing Out the Bath Water, and Constructing a New Sink in the Process, 2 U. PA. J. LAB. and EMP. L. 73, 99 (1999) ("Most plaintiff's' lawyers, however, oppose arbitration. ").
66. The rest of the cost differential is created by pleading and motion practice, and appeals. My guess is that pleading and motion practice add value to a case from the plaintiff's point of view, insofar as they force the plaintiff's counsel to sharpen her case theory and its eventual presentation at trial, though much of it probably doesn't have this useful effect. The effect of appeals on case value is even more difficult to discern. There is reason to believe that it is either neutral or negative in its impact on case value from the plaintiff's perspective. See Kevin M. Clermont and Theodore Eisenberg, Plaintiphobia in the Appellate Courts: Civil Rights Really Do Differ from Negotiable Instruments, 2002 U. ILL. L. REV. 947, 971.
67. See supra note 9; see also Maltby, supra note 22, at 30 ("Many people with legitimate claims against their employers never receive justice because they are unable to afford lawyers.").
68. For this analytical framework, I owe thanks (or apologies) to the work of my colleague, Neil Komesar. See NEIL K. KOMESAR, IMPERFECT ALTERNATIVES 161-70 (1994).
69. The FAA provides only for parties "aggrieved by a failure or refusal of the other to arbitrate" to move to compel arbitration. 9 U. S. C. §§ 3-4 (2006). While no case squarely holds that a court cannot sua sponte compel arbitration on two unwilling parties to a predispute agreement, such a rule is implicit in the cases holding that the right to compel arbitration may be waived. See, e.g., Zimmer v. CooperNeff Advisors, Inc., 523 F.3d 224, 231-34 (3d Cir. 2008);
70. Khan v. Parsons Global Servs., Ltd., 521 F.3d 421, 428 (D. C. Cir. 2008).
71. See, e.g., South Broward Hosp. Dist. v. Medquist, Inc., 258 F. App'x 466 (3d Cir. 2007) (affirming the district court's denial of the defendant's motion to compel arbitration);
72. Clay v. Permanente Med. Group, Inc., 540 F. Supp. 2d 1101 (N. D. Cal. 2007) (granting the defendant's motion to compel arbitration);
73. M Street LLC v. Mackell, 940 A.2d 143 (D. C. 2007) (affirming the lower court's denial of the defendant's motion to compel arbitration).
74. Cf. Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52, 62 (1995) (recognizing the federal policy towards arbitration and holding that ambiguities in a clause should be resolved in favor of arbitration).
75. Likely the tip of an iceberg, but not certainly so. A bulletproof arbitration agreement may induce litigation-preferring claimants to drop potential claims. It is one of many empirical questions to which we still do not know the answer.
76. See Estreicher, supra note 8, at 567; Sherwyn et al., supra note 8, at 1579-80; Shenvyn, supra note 9, at 32.
77. See, e.g., Kaye v. Macari Bldg. and Design, Inc., 967 So. 2d 1112 (Fla. Dist. Ct. App. 2007) (reversing lower court's denial of plaintiff's motion to compel arbitration).
78. See Steven Garber, Product Liability, Punitive Damages, Business Decisions and Economic Outcomes, 1998 WIS. L. REV. 237, 243.
79. While attorneys' fees can be thought of as a process cost, to the extent that they are incurred throughout the course of the proceedings, an award of attorneys' fees pursuant to a fee-shifting rule does not affect process costs in any way meaningful to this analysis; instead, the potential of a fee award raises liability stakes.
80. See, e.g., Stephen J. Ware, The Effects of Gilmer: Empirical and Other Approaches to the Study of Employment Arbitration, 16 OHIO ST. J. DISP. RESOL. 735, 747 (2001).
81. Motions to dismiss or amend pleadings, motions to compel discovery, pretrial proceedings for preliminary injunctive relief or for class certification, motions for summary judgment, and interlocutory appeals are some salient examples. See, e.g., FED. R. CIV. P. 12, 23, 37, 56, 65.
82. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 648-49 and n. 14 (1985) (noting that arbitration's "informal procedures" do not provide all rights and procedures common to civil trial).
83. See G. Charles Douglas, II and William C. Martucci, Discovery, in A. B. A. SECTION of LITIGATION, EMPLOYMENT LITIGATION HANDBOOK 54-56 (Jon W. Green and John W. Robinson, IV eds., 1998) (detailing the needed discovery in this cases);
84. id. at 60-61 ("Typically, employers will refuse to supply many of the documents or answers to interrogatories that you have requested.... [I]t is absolutely essential that plaintiff's counsel file the appropriate motion to compel.").
85. See Ettie Ward, The After-Shocks of Twombly: Will We "Notice" Pleading Changes?, 82 ST. JOHN'S L. REV. 893, 912 (2008) (discussing the motivations defendants have for resisting discovery).
86. To be sure, comparing arbitration and litigation costs can be complicated by a number of factors, and I suspect that the cost savings in arbitration are often exaggerated. See infra Part III. D.2.
87. Estreicher, supra note 8, at 567-68; Sherwyn et al., supra note 8, at 1578-81; Sherwyn, supra note 9, at 32.
88. What about those "nuisance suits" we hear so much about? Nuisance suits are quintessential high-cost/low-stakes cases: cases whose negligible legal merit means that liability stakes approach zero, but sufficiently high process costs that a crafty plaintiff's lawyer can gain a windfall by bargaining for a share of the process cost that the defendant will save by settling the case. See Joshua Davis, Expected Value Arbitration
89. OKLA. L. REV. 47, 53 n. 26 (2004) (describing a strike suit, a suit where "a plaintiff brings a claim without merit to extract a settlement"). One would think that by litigating such claims a defendant raises the potential process costs and therefore the plaintiff's counsel's "nuisance value" bargaining range; defendants should welcome arbitration to keep the process costs down. Yet Sherwyn and Esteicher tell us that defendants prefer to litigate low-stakes claims. For their thesis to hold, we would have to suppose that defendants deter the majority of such cases by making a practice of refusing nuisance-value settlement offers and litigating to summaryjudgment. This in effect "calls the plaintiff's bluff, " because a low-stakes plaintiff cannot afford to litigate that far into the case. If the Estreicher-Sherwyn thesis is correct, that would tell us that the "nuisance value" phenomenon is greatly exaggerated-because defendants tend to refuse to make nuisance-value settlements. Yet, strangely, Sherwyn argues that mandatory arbitration is a socially valuable practice because it discourages nuisance suits. See Sherwyn et al., supra note 36, at 140 n. 377. Part of the problem may be muddled thinking by tort reformers, who use the term "nuisance suits" to mean not very low-stakes cases, but rather cases that a defendant views as meritless (perhaps even with some justification) but that in fact carry a small though nonnegligible chance of a high recovery. See, e.g., Note, Controlling Jury Damage Awards in Private Antitrust Suits, 81 MICH. L. REV. 693, 702-03 (1983) (arguing for better control of jury awards, in part, because of meritless but potentially high-stakes "nuisance" claims). The settlement is therefore rationally based, not on a division of unspent process cost, but rather as an insurance payment against the low probability of a large judgment.
90. See supra note 44 and accompanying text.
91. Adjudicator bias arguments might assert, for example, that arbitrators are on the whole more "jaded" about damage claims than juries, which would tilt the arbitration forum toward defendants. Other institutional factors may create a prodefendant bias in arbitration, stemming primarily from the fact that it is the defendants who "purchase" mandatory arbitration by writing mandatory arbitration clauses; it is possible that arbitration vendors need to skew the process in order to sell their services to defendants. A "repeat player" effect has also been posited by researchers. See infra Part III. D.l.
92. See infra Part IV. B.
93. Defendants may also have a process advantage in arbitration based on the idea that plaintiff's need the discovery procedures offered in litigation to develop their cases in a way that maximizes their value. But by definition, this element is not a factor creating a preference for arbitration in low process-cost cases. See supra notes 48-50 and accompanying text (discussing the costs of procedural complexity).
94. See infra Part III. D.2.
95. See, e.g., Sarah Rudolph Cole, Arbitration and State Action, 2005 BYU L. REV. 1, 40 and n. 186; Sherwyn, supra note 9, at 26; see also AM. ARBITRATION ASS'N, EMPLOYMENT DUE PROCESS PROTOCOL § B.3 (1995) [hereinafter DUE PROCESS PROTOCOL], available at http://www.adr.org/sp. asp?id=28535 (providing for "Access to Information").
96. The structure requiring a plaintiff to prove that the employer's story is a pretext applies in both statutory discrimination and common law wrongful discharge claims (the latter assuming that the employment-at-will presumption has been overcome). See Reeves v. Sanderson Plumbing Prods., Inc., 530 U. S. 133, 153-54 (2000) (dealing with statutory employment claims);
97. Pugh v. See's Candies, Inc., 171 Cal. Rptr. 917, 927-28 (Cal. Ct. App. 1981) (dealing with common law wrongful discharge). The plaintiff normally carries the burden of persuasion to prove that the employer's offered rationale is false. Reeves, 530 U. S. at 153-54. Even where the employer carries the burden of persuasion, see, e.g., Desert Palace, Inc. v. Costa, 539 U. S. 90, 94-95 (2003), persuasive stories of poor performance or corporate reorganization are easy to fabricate and complicated to refute.
98. See Faragher v. City of Boca Raton, 524 U. S. 775, 803-08 (1998) (creating an affirmative defense to sexual harassment based on the adequacy of internal remedies and the plaintiff's unreasonable failure to use them);
99. ALBA CONTE, SEXUAL HARASSMENT IN THE WORKPLACE 267-68 (2d ed. 1994) (suggesting that, while not technically necessary, evidence corroborating the plaintiff and evidence of harassment of other employees is important to bolster the plaintiff's case);
100. AM. JUR. PROOF OF FACTS 3d § 11, at 301 (2008);
101. see also, e.g., Mills v. Brown and Wood, Inc., 940 F. Supp. 903, 910 (E. D. N. C. 1996) (granting the defendant's motion for summary judgment on a Title VII sexual harassment claim on the grounds that the plaintiff "offered no evidence that the co-managers... knew, or should have known, of [the harassing] behavior" nor any evidence that the company's internal procedures for addressing claims of sexual harassment were inadequate).
102. See, e.g., Harper v. ULTA Salon Cosmetics and Fragrance, Inc., No. 1:05-CV-1285- TWT, 2007 WL 528088, at 11-12, 16-17 (N. D. Ga. Feb. 13, 2007).
103. See, e.g., DUE PROCESS PROTOCOL, supra note 61, § C.5.
104. See Sherman L. Cohn, The Organizational Client: Attorney-Client Privilege and the No-Contact Rule, 10 GEO. J. LEGAL ETHICS 739, 788 (1997) ("[T]he chances of current employees of an organization cooperating with opposing counsel, even in depositions, to reveal the truth of what happened are slim....").
105. See Wayne D. Brazil, Civil Discovery: Lawyers' Views of Its Effectiveness, Its Principal Problems and Abuses, 1980 AM. B. FOUND. RES. J. 787, 828-30 ("[I]t would be difficult to exaggerate the pervasiveness of evasive practices or their adverse impact on the efficiency and effectiveness... of civil discovery.").
106. See, e.g., Elizabeth Hill, Due Process at Low Cost: An Empirical Study of Employment Arbitration Under the Auspices of the American Arbitration Association, 18 OHIO ST. J. ON DISP. RESOL. 777, 799-803 (2003) (suggesting that low attorneys' fees and costs in arbitration are a benefit to claimants without considering the impact of forgone discovery on plaintiff's recoveries);
107. Sherwyn et al., supra note 8, at 1575 (arguing that lack of discovery benefits claimants because it reduces the papers to which the claimant must respond);
108. Sherwyn, supra note 9, at 26 ("[L]imiting discovery significantly reduces costs to all parties.... [This] should theoretically increase access to adjudication. ");
109. see also Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 31 (1991) (dismissing the argument that arbitration's limited discovery would prejudice the plaintiff's age discrimination claim).
110. See, e.g., Estreicher, supra note 8, at 563 ("[T]he sheer costs of defending a litigation and the risks of a jury trial create considerable settlement value irrespective of the substantive merits of the underlying claim.");
111. Sherwyn, supra note 9, at 21 (stating that the litigation system allows employees to "extort employers with high litigation costs").
112. American Arbitration Association rules allow for dispositive prehearing motions. See AM. ARBITRATION ASS'N, EMPLOYMENT ARBITRATION RULES AND MEDIATION PROCEDURES, at R.27 (2006) [hereinafter EMPLOYMENT ARBITRATION RULES], available at http://www.adr.org/sp. asp?id=32904 ("The arbitrator may allow the filing of a dispositive motion if the arbitrator determines that the moving party has shown substantial cause that the motion is likely to succeed and dispose of or narrow the issues in the case.").
113. See, e.g., Delikat and Kleiner, supra note 29, at 9-10; Sherwyn et al., supra note 8, at 1576.
114. In individual cases, some arbitrators may already be making it their practice to allow discovery to an extent that matches what would be available in litigation. See, e.g., Am. Arbitration Ass'n, ADR Perspectives Profile: Albert Bates, Jr., http://www.adr.org/sp. asp?id=35047 (last visited Nov. 8, 2008) (noting the growing perception that "arbitration continues to become more and more like litigation").
115. Significantly, AAA has resisted setting specific minimum standards for discovery in its rules. See DUE PROCESS PROTOCOL, supra note 61, § B.3 ("Adequate but limited pre-trial discovery is to be encouraged and employees should have access to all information reasonably relevant to mediation and/or arbitration of their claims.");
116. EMPLOYMENT ARBITRATION RULES, supra note 70, at R.9 ("The arbitrator shall have the authority to order such discovery, by way of deposition, interrogatory, document production, or otherwise, as the arbitrator considers necessary to a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration. ").
117. Jury verdicts, it should be noted, are subject to two levels of appeal. Often overlooked are post-trial motions for judgment notwithstanding the verdict and for new trial. These are in form and function appeals to the trial judge from the jury's verdict. See FED. R. CIV. P. 50.
118. See Federal Arbitration Act, 9 U. S. C. §§ 9-10 (2006). See generally Christopher R. Drahozal, Codifying Manifest Disregard, 8 NEV. L. J. 234, 235-38 (2007) (explaining the deferential judicial review of arbitration decisions under a "manifest disregard of the law" standard).
119. Compare ANALYTICAL SERVS. OFFICE, ADMIN. OFFICE OF THE U. S. COURTS, JUDICIAL FACTS AND FIGURES tbl.2.3 (2007) ("Appeals Filed by Type of Appeal and Originating Agency"), with id. tbl.4.4 ("[District Court] Civil Cases Filed by Nature of Suit"). In 2007, there were 14, 769 civil appeals filed in the U. S. courts of appeals. Id. tbl 2.3. This number represents a twenty percent decline since 2000. See id. By contrast, the number of civil cases filed in district courts, which has remained fairly steady, averaged about 203, 000 from 2003 to 2007. See id. tbl.4.4. (I've excluded prisoner petitions from these totals, since such cases are appealed at about four times the rate of other civil cases.) I compare the 2007 appeal total, which seems to represent a trend, with the five-year average of district court cases to reflect the fact that appeal filings may be taken from cases filed over a number of years. The 14, 769 appeals out of 203, 000 cases come to roughly 1 in 13.7, or an appeal rate of 7.3%. See generally Ignazio J. Ruvolo, Appellate Mediation- "Settling" the Last Frontier of ADR, 42 SAN DIEGO L. REV. 177, 218 (2005) ("Because appeals are expensive, factoring the wasting effect of continued litigation into one's net recovery expectation leads many litigants to see the economic benefit of settlement.") ;
120. Robert Wilson, Free Speech v. Trial by fury: The Role of the Jury in the Application of the Pickering Test, 18 GEO. MASON U. CIV. RTS. L. J. 389, 403 (2008) (stating that rates of appeal are lower in civil cases than criminal cases, in part because of the cost).
121. See, e.g., Green Tree Fin. Corp. v. Bazzle, 539 U. S. 444, 454 (2003) (vacating and remanding an arbitration award) ;
122. Sarah Rudolph Cole, Revising the FAA to Permit Expanded Judicial Review of Arbitration Awards, 8 NEV. LJ. 214, 215-18 (2007) (describing the enforceability of judicial review provided by an arbitration clause);
123. Drahozal, supra note 75, at 235-38 (describing the judicial review of arbitration awards for "manifest disregard of the law").
124. See Clermont and Eisenberg, supra note 37, at 958.
125. See, e.g., Estreicher, supra note 8, at 568 (noting that offering arbitration removes the in terrorem effect of a jury trial).
126. In employment and franchise cases, mandatory arbitration has moved away from the commercial arbitration tradition of three-arbitrator panels due to the great expense.
127. See AM. ARBITRATION ASS'N, COMMERCIAL ARBITRATION RULES, at R.15 (1997), available at http://www.adr.org/sp. asp?id=22440 (allowing the AAA to appoint three arbitrators);
128. EMPLOYMENT ARBITRATION RULES, supra note 70, at R.12 (a) (providing for a single arbitrator as a default rule).
129. I have personally decided not to pursue a couple of small consumer claims out of an anxiety that an arbitrator could assess me with fees and costs in amounts far in excess of my claim.
130. For example, the 26 million arbitration award against Green Tree Financial went all the way to the U. S. Supreme Court, though admittedly the terms of the remand may in the end have provided cold comfort to the defendant. See Green Tree, 539 U. S. at 454 (remanding to the arbitrator to determine the contract terms).
131. Sherwyn et al., supra note 8, at 1565. A finding of no disparity is suspect for the same reason.
132. Id. at 1567; see also id. at 1578 ("Still, despite the flaws, there are some conclusions about which we can be confident regarding the 'fairness' of arbitration. First, there is no evidence that plaintiff's fare significantly better in litigation. In fact, the opposite may be true.").
133. Colvin, supra note 21, at 408.
134. Id. at 411. Colvin reaches this estimate by extrapolating from a patchwork of empirical studies, each of which has limited data from sets that might overrepresent the extent of arbitration agreements. Id.
135. Linda J. Demaine and Deborah R. Hensler, "Volunteering" to Arbitrate Through Predispute Arbitration Clauses: The Average Consumer's Experience, 67 LAW and CONTEMP. PROBS. 55, 62 (2004).
136. In the analogous (perhapsl) context of employment arbitration, Colvin has found that companies are influenced to adopt predispute arbitration clauses "where there were higher levels of employment litigation activity, for example in California in the early 1990s." Colvin, supra note 21, at 411-12.
137. See, e.g., Loukas A. Mistelis, Confidentiality and Third Party Participation: UPS v. Canada and Methanex Corp. v. United States, in INTERNATIONAL INVESTMENT LAW AND ARBITRATION 169, 169 (Todd Weiler ed., 2005) (calling arbitration not only "private between the parties but... absolutely confidential").
138. California requires "any private arbitration company that administers or is otherwise involved in[] a consumer arbitration" to publish quarterly data in a computersearchable format. CAL. CIV. PROC. CODE § 1281.96 (West 2004). The term "consumer" is defined to include employees. See ETHICS STANDARDS FOR NEUTRAL ARBITRATORS IN CONTRACTUAL ARBITRATION, Standard 2 (e) (4) (Cal. Judicial Council 2007), available at http://www.courtinfo.ca.gov/rules/documents/ pdfFiles/ethics-standards-neutral-arbitrators.pdf. The required information includes: (1) the name of the "nonconsumer" corporate party; (2) the type of dispute involved; (3) who prevailed; (4) how often the nonconsumer party has previously arbitrated; (5) whether the consumer party was represented by an attorney; (6) the dates of arbitration demand, appointment of the arbitrator and disposition; (7) the type of disposition; (8) the amount of the claim and the amount and type of relief granted; and (9) the name of the arbitrator, the total fee, and its allocation between the parties. Unfortunately, the statute does not require that any information be provided about the legal claims or facts involved beyond a broad label. CAL. CIV. PROC. CODE § 1281.96.
139. Lisa Bingham, in her well-known study of a "repeat player" effect in arbitration, discarded 55 out of 330 cases (16%) due to missing information, because the case settled before an award, or because the case was not an employment dispute. Lisa B. Bingham, Employment Arbitration: The Repeat Player Effect, 1 EMP. RTS. and EMP. POL'Y J. 189, 206 (1997). Eisenberg and Hill discarded 36 out of 297 (12%) for similar reasons; for reasons not fully explained, they also discarded 59 cases at random from their original data set of 356 cases. See Eisenberg and Hill, supra note 8, at 46, 48 tbl.l. As to the cases discarded for missing data, it would be good to know whether or not they may have particular characteristics-might they have been disproportionately employer wins, for instance-and in a large enough number to skew the sample.
140. See AM. ARBITRATION ASS'N, supra note 23, at 4 ("The AAA is and will continue to be the largest provider of ADR services.").
141. See, e.g., Eisenberg and Hill, supra note 8, at 45 ("We also emphasize that our arbitration data came from a single organization, the AAA. If the AAA's practices and procedures are not followed in employment arbitration, our results should not necessarily be expected to be replicated.").
142. See PUB. CITIZEN, supra note 31.
143. Colvin's estimate that fifteen to twenty-five percent of the U. S. workforce (about 140 million) is covered by nonunion predispute arbitration clauses, yields a very rough estimate of 21 to 35 million employees under a mandatory arbitration regime. Colvin, supra note 21, at 411. AAA estimates its arbitration clause coverage at around 8 million workers. Telephone Interview with Representative of the Am. Arbitration Ass'n (May 7, 2007).
144. See, e.g., Sherwyn et al., supra note 8, at 1576 (refusing to draw firm conclusions regarding damages because the data were "too difficult to interpret because the standard deviations were high").
145. Id. at 1568 (citing William M. Howard, Arbitrating Claims of Employment Discrimination: What Really Does Happen? What Really Should Happen?, DISP. RESOL. J. Oct.-Dec. 1995, at 40, 42-43).
146. Delikat and Kleiner, supra note 29, at 10 and tbl. III.
147. See, e.g., Eisenberg and Hill, supra note 8, at 53; Estreicher, supra note 8, at 568; Maltby, supra note 23, at 46-51; Sherwyn et al., supra note 8, at 1578. 100 It is unlikely, of course, that arbitration cases are three times more likely to be meritorious than litigation cases, but then the twenty-eight percent and sixty-eight percent win rates cited by Sherwyn and his coauthors are wildly inaccurate and misleading due to sampling and methodological errors of the type discussed in the next section. See infra Part III. B.2. The Delikat and Kleiner study, supra note 29, which produced the median arbitration and litigation awards, was based on an invalid comparison of different pools of cases that greatly overstated the arbitration results. See infra note 130.
148. Bingham, supra note 91, at 209; Maltby, supra note 23, at 49.
149. See PUB. CITIZEN, supra note 31, at 34.
150. See Drury Stevenson, Revenue Bifurcation, 75 U. CIN. L. REV. 213, 243-44 (2006) (describing how case value is difficult, if not impossible, to determine initially and advocating use of discovery to allow more accurate determinations early on). 104 Even assuming comparable pools of arbitration and litigation cases, win percentages are a crude measure of claimant success because of the difficulty in determining whether an outcome is in fact a win. Studies of win rates invariably define a "win" as the claimant or plaintiff recovering anything at all. Awards or judgments of zero dollars for a claimant are plainly a loss. But equally evident, the award of a token amount, or even a substantial amount that represents a small fraction of the claimant's true damages, may be justifiably-indeed, objectively-viewed as a loss for the claimant. See, e.g., Mandatory Binding Arbitration Agreements, supra note 5, at 68-69 (testimony of Jordan Fogel, Political Activist) (reporting that she received 26, 000 in arbitration damages against her contractor for an uninhabitable home that cost 150, 000 to repair). Yet the research typically codes that as a "win. " See, e.g., Maltby, supra note 23, at 48 (assuming that any nonzero award for an arbitration claimant is a win, regardless of claim amount or case value).
151. William L. F. Felstiner et al., The Emergence and Transformation of Disputes: Naming, Blaming, Claiming..., 15 LAW and SOC'Y REV. 631, 647-49 (1981) ;
152. Richard E. Miller and Austin Sarat, Grievances, Claims, and Disputes: Assessing the Adversary Culture, 15 LAW and SOC'Y REV. 525, 543 (1981) ;
153. David M. Trubek et al., The Costs of Ordinary Litigation, 31 UCLA L. REV. 72, 86-87 (1983).
154. See, e.g., Miller and Sarat, supra note 105, at 527.
155. Employees, for instance, may be bound by contract to go through formal internal dispute resolution processes within the employer company before going to arbitration or court. See Alexander J. S. Colvin, Institutional Pressures, Human Resource Strategies, and the Rise of Nonunion Dispute Resolution Procedures, 56 INDUS. and LAB. REL. REV. 375, 378-79 (2003). Discrimination claims must go through the administrative process within the EEOC or a parallel state agency before suit may be filed in court. See 42 U. S. C. § 2000e-5 (2006).
156. Miller and Sarat, for example, estimated that 3% of consumer "disputes" (rejected claims) and 3.9% of employment discrimination disputes resulted in court filings. Miller and Sarat, supra note 105, at 537.
157. See, e.g., Eisenberg and Hill, supra note 8, at 51-52;
158. Sherwyn et al., supra note 8, at 1565-66. For a good comparison of filtering processes in arbitration and litigation, see W. Mark C. Weidemaier, From Court-Surrogate to Regulatory Tool: Re-Framing the Empirical Study of Employment Arbitration, 41 U. MICH. J. L. REFORM 843, 848-58 (2008).
159. See supra notes 8, 19-23 and accompanying text.
160. See, e.g., Hill, supra note 68, at 814-18.
161. Cf. Cindy Cole Ettingoff and Gregory Powell, Use of Alternative Dispute Resolution in Employment Related Disputes, 26 U. MEM. L. REV. 1131, 1142 (1996) (arguing that mediation prevents the development of an adversarial relationship and can thus preserve a working relationship).
162. See Hill, supra note 68, at 814-18.
163. See infra Part IV. A.
164. Kevin M. Clermont and Stewart J. Schwab, How Employment Discrimination Plaintiff's Fare in Federal Court, 1 J. EMPIRICAL LEG. STUD. 429, 457 (2004).
165. Id. at 457. These figures are rounded for convenience. The trial rate for employment cases is actually 5.42%. The "other dispositions" include things like remand to state court, dismissals for lack of jurisdiction, and, presumably, orders compelling arbitration, which would not finally dispose of the claims, but merely send them to another forum. In employment cases, very few cases are dismissed on the pleadings and very few are won by plaintiff's on summary judgment; therefore, the vast majority of the 20.89% of cases subject to "non-trial adjudication" are summary judgments for defendants. Id. at 440.
166. Eisenberg and Hill, supra note 8, at 52.
167. Id. The figures represent case terminations of the 1999-2000 filings as of September 2002. The authors do not indicate whether "final awards" include summary dismissals without hearing; thus it is possible that the percentage of hearings was even less than 32.6%. Nor do the authors define what "closed for other reasons" ("Closed" in the Table) means.
168. Delikat and Kleiner, for example, take the latter approach, obtusely asserting that the small number of employment discrimination jury trials "provides a significant counter-point to the opponents of pre-dispute arbitration" who contend "that arbitration deprives discrimination claimants of a jury trial." Delikat and Kleiner, supra note 29, at 8.
169. Eisenberg and Hill, supra note 8, at 52 (footnote omitted).
170. According to one theory, cases go to trial when one side significantly misvalues its claims or defenses. See, e.g., Russell Korobkin and Chris Guthrie, Psychology, Economics, and Settlement: A New Look at the Role of the Lawyer, 76 TEX. L. REV. 77, 82 (1997). Conceivably, employer litigants (and their attorneys) would have a larger experience base, and therefore better information about, case values than would employee litigants. This would mean that a higher proportion of tried cases would be cases where the plaintiff overvalued his case and refused to setde. See id. at 95-112 (arguing that heuristic "frames" lead inexperienced clients to misvalue cases and settlement offers). If that were so, then trial results could understate aggregate plaintiff success. Another theory suggests that settling stronger cases is a strategy for managing risk and the development of decisional law. Marc Galanter, Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change, 9 LAW and SOC'Y REV. 95, 99-100 (1974) (arguing that repeat players settle based on strategic factors extending beyond the particular case).
171. Among nonsettling cases, some provision should arguably be made for nontrial/nonhearing case terminations. Lewis Maltby has made the argument that the plaintiff win rate in federal employment discrimination litigation is to be determined by discounting the thirty-six to thirty-eight percent win rate at trial by adding summary judgment dismissals to the denominator-that is dividing the number of plaintiff trial wins by the number of losses at trial and summary judgment. See Lewis L. Maltby, Employment Arbitration and Workplace Justice, 38 U. S. F. L. REV. 105, 112-13 (2003);
172. Maltby, supra note 23, at 49 tbl.l (reporting a litigation win rate of 14.9%).
173. By this maneuver, Maltby, a mandatory arbitration supporter and member of the AAA Board of Directors, produces a plaintiff win rate in litigation in the twelve to fifteen percent range, and he discounts average plaintiff awards accordingly. While this seems logical at first blush, it is highly misleading for several reasons. First, withdrawals and case closures in arbitration-which may approximate, and even include, summary judgment dismissals-appear to occur at a rate in arbitration comparable to litigation- eighteen percent compared to twenty percent according to the very limited data we have on arbitration.
174. See supra Table 2. Second, the summary judgment dismissal rate in state court employment disputes appears to be about one-fourth the summary judgment rate in federal court.
175. See Maltby, supra, at 112-13. Since most adjudication occurs at the state court level, the federal summary judgment rate greatly overstates the total percentage of litigation cases resolved in that way. Third, Maltby ignores the strong possibility that settled cases do not mirror merits dispositions. If nontrial losses are included in the denominator (that is, Maltby's move of adding summary judgment dismissals to the total number of trials), it is misleading to omit nontrial wins (good settlements) from the numerator. The seventy percent of the cases that settle involve some significant average payout, whereas summary judgment dismissals are defendant wins, with no payouts. Finally, there is an argument to be made that meritless claims should be excluded from the analysis. (I recognize that summary judgment dismissals may be a highly imperfect proxy for meridess claims.) The decision whether or not to endorse a mandatory arbitration regime should not be made to turn on the relative chances for success of meridess claims in arbitration or litigation; one would hope that any fair and accurate truth finding process would dismiss them. Instead, the comparison should be based on comparing how claimants with arguably meritorious claims fare in the two forums.
176. See supra Part III. A.
177. Compare Clermont and Schwab, supra note 115, at 441 fig.7 (presenting the plaintiff win rate in federal court in 2001 as 39.5% in employment discrimination cases), with Eisenberg and Hill, supra note 8, at 48 (presenting a plaintiff success rate in state employment litigation of 56.6%).
178. Delikat and Kleiner, supra note 29, at 9; Howard, supra note 97, at 41; Maltby, supra note 23, at 46. This presentation of data could be characterized as "cherry picking" if one had reason to believe that the autfiors were mandatory arbitration proponents. Delikat is "Chair of [the Orrick law firm's] Global Employment Law Practice." Orrick, Mike Delikat-Orrick Bio, http://www.orrick.com/lawyers/Bio.asp?ID=7547 [hereinafter Delikat Bio] (last visited Jan. 18, 2009). Howard is an AAA arbitrator, Howard, supra, at 40, and Maltby is a member of the AAA Board of Directors, see supra note 23.
179. Eisenberg and Hill, supra note 8, at 47-48 and tbl.l.
180. Martin H. Malin, Interference with the Right to Leave Under the Family and Medical Leave Act, 7 EMP. RTS. and EMP. POL'Y J. 329, 357 (2003) ("Discrimination claims are the most common employment cases litigated in federal court.").
181. In the Eisenberg and Hill study, non-civil rights employment claims made up 47.5% of the state court trial sample (145 of 305), but over 80% of the arbitration sample (173 of 215). Id. at 48 tbl.l.
182. For example, California provides for uncapped damages in employment discrimination claims, in contrast to federal law, which caps consequential damages at 300, 000.
183. Compare CAL. GOV. CODE § 12970 (West 2005) (allowing recovery of actual damages and limiting only the nonpecuniary portion of an actual damages award), with 42 U. S. C. §1981a (b) (3) (2000) (limiting recovery to 50, 000, 100, 000, 200, 000, or 300, 000 depending on the size of the employer).
184. The Delikat and Kleiner study, see supra note 29, cited frequently by pro-arbitration polemicists but also by some legal academics, found that plaintiff's were more likely to win in arbitration (46.2% to 33.6%), that the median arbitration award was slightly higher than the median trial judgment (about 100, 000 to 95, 000), and that, though the mean award was higher for the trials (roughly 377, 000 to 236, 000), the difference was not statistically significant.
185. Delikat and Kleiner, supra note 29, at 10 tbl. III. From this less-than-compelling showing, they robustly conclude that there is therefore "no statistical support" that arbitration favors employers, that their data provide a "strong rebuttal" to such a claim, and that, on the contrary, "plaintiff's are well served by arbitration relative to the federal courts both in terms of speedy justice and the likelihood of a positive outcome for plaintiff's."
186. See id. at 11.
187. But those conclusions are unwarranted. The study compares 186 securities industry arbitrations of employment cases of all types by NYSE and NASD with a sample of all 125 employment discrimination trials in the Southern District of New York.
188. Id. at 8-9.
189. Given the lower success rate for employment discrimination cases in federal court, compared to nondiscrimination employment claims and state court claims, see supra note 124, the data necessarily understate the success of litigation plaintiff's. At the same time, the study overstates the success rates for arbitration: securities industry employment arbitrations are likely to be overrepresented by highly compensated employees. For "securities industry" jobs in New York City, "[t]he mean annual salary in 2007 was slightly less than 400, 000." James Bram et al., Employment in the New York-New Jersey Region: 2008 Review and Outlook, CURRENT ISSUES ECON. and FIN. (Fed. Reserve Bank of N. Y., New York, N. Y.), September/October 2008, at 1, 5, available at http://www.newyorkfed.org/research/current-issues/cil4-7.pdf.
190. This is nearly ten times higher than the mean annual wage for all occupations as of May 2007, which was $40, 690. Bureau of Labor Statistics, U. S. Dep't of Labor, May 2007 National Occupational Employment and Wage Estimates (last visited February 19, 2009), http://www.bls.gOv/oes/2007/ may/oes-nat.html bl3-000.
191. Finally, sixty-one percent of the cases in Delikat and Kleiner's arbitration sample comprised nondiscrimination employment claims (350 out of 572).
192. See Delikat and Kleiner, supra note 29, at 9 tbl.l. Plaintiff's tend to do better in such claims as the Delikat and Kleiner data itself show: arbitration claimants recovered in 39.71% of their presumably contract-based "wrongful termination" claims, compared to 27.57% (74 out of 259) of their discrimination claims.
193. Id. Delikat and Kleiner did not attempt to break out success rates and averages for discrimination claims, but one can calculate from their data table that arbitration claimants won a mean award of $159, 860 in their discrimination claims-less than half the mean judgment of $377, 030 in employment discrimination trials.
194. Id. at 9 tbl.l, 10 tbl.3. The authors ran no statistical tests to determine the significance of that difference. In light of the above, the Delikat and Kleiner data may actually support the conclusion that plaintiff's do worse in arbitration.
195. See Richard Lempert, The Significance of Statistical Significance: Two Authors Restate an Incontrovertible Caution. Why a Book? 34 LAW and SOC. INQUIRY (forthcoming 2009) (manuscript at 9), available at http://ssrn. com/abstract=l 142865.
196. Eisenberg and Hill, supra note 8, at 46-53.
197. Id. at 46.
198. Id. at 45.
199. Id. at 48 tbl.l, 50 tbl.2.
200. Id. at 49.
201. Id. at 48, 51.
202. Id. at 48 tbl.l, 50 tbl.2.
203. Id. at 48.
204. Id. at 50. In fact, the win rates and average awards were much lower in arbitration of employment discrimination ("civil rights employment claims"). However, thirty-seven out of the forty-two "civil rights employment disputes" in the arbitration sample were brought by lower-paid employees, which the authors contend is not a relevant comparison with the litigated cases. Id. at 48.
205. Id. at 47, 48 tbl.l, 50 tbl.2.
206. Id. at 45.
207. Id. at 52; see supra Table 2 and notes 117-18 and accompanying text (relating the data from the Eisenberg and Hill study). The Eisenberg and Hill article relies on "a database compiled by Hill" in her connected study of arbitration costs. Eisenberg and Hill, supra note 8, at 52. For this earlier study, see Hill, supra note 68. There, Hill studies "[t]wo hundred awards [that] were randomly selected from the total pool of 356 AAA Employment Arbitration Dispute awards initiated during 1999 and 2000 and decided as of November 5, 2000." Id. at 792. The Eisenberg and Hill study randomly adds ninety-seven cases from the remainder of the original subset of 356. Eisenberg and Hill, supra note 8, at 54 n. 17. Why they randomly select a subset of the 356 cases they never explain.
208. According to Eisenberg and Hill's description of their data, as of September 2002, there were 885 final arbitration awards in cases filed in 1999-2000. Id. at 52 (listing 459 final awards in 1999 and 426 final awards in 2000);
209. see also Hill, supra note 68, at 822 n. 126 (describing the process of choosing cases to include in the data). They "censored" all but 356 of those 885 cases (that is, a total of 529 cases) because those had not yet been decided as of their November 2000 cutoff. See Eisenberg and Hill, supra note 8, at 46 ("In addition, claims that were not completed, i.e., had no award issued by Nov. 5, 2000, were eliminated...."). In other words, those 529 cases decided between November 2000 and September 2002 were excluded from their analysis. In addition, as of September 2002, there were an additional 103 "pending" (that is, still unresolved) cases (35 filed in 1999 plus 68 filed in 2000). Id. at 52. Obviously, those cases were also censored inasmuch as they were not decided by November 2000. Thus, 632 total cases were censored. Adding those to the 356 in their data set yields 988 total cases. The censored cases therefore represent nearly sixty-four percent of their potential sample. As is implicit in these arithmetical calculations, Eisenberg and Hill themselves nowhere clearly state the number of cases they censored.
210. Eisenberg and Hill apparently recognize this phenomenan. See Eisenberg and Hill, supra note 8, at 53 ("Our conclusions about the time to completion must be more tentative because censoring the data clearly distorted downward the time to disposition of the arbitrated cases."). So why present "clearly distorted" data?
211. See supra Part II. B.
212. Eisenberg and Hill, supra note 8, at 53 ("[C]ases with claimant wins and large awards are likely to take longer than cases with claimant losses and small awards. So in uncensored data one might find disproportionately more claimant wins. Uncensored data also might show higher mean and median awards for employee arbitration claimants. This strengthens our finding that awards in arbitrated cases are not lower than awards in litigated cases.").
213. See supra Part II.
214. Eisenberg and Hill, supra note 8, at 53.
215. Id. at 47.
216. See infra Part IV. A.
217. This effect is even more pronounced in non-civil rights employment cases, where attorneys' fees and noneconomic damages are generally not recoverable. And the one point on which the Eisenberg and Hill study is convincing is in demonstrating the need to separate out civil rights from non-civil rights claims to account for this difference. See Eisenberg and Hill, supra note 8, at 47.
218. See, e.g., McDonough v. City of Quincy, 452 F.3d 8, 22 (1st Cir. 2006) (upholding an employment discrimination award of $300, 000, the majority of which was for emotional distress).
219. Back pay refers to compensation that would have been earned prior to the time of judgment or settlement. Front pay means lost future earnings. Large front pay awards are not uncommon in cases of wrongfully discharged older workers-in their fifties, say-who have several years of potential worklife remaining but who find it difficult or impossible to be rehired into a comparable job. See, e.g., Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1334-35 (6th Cir. 1994) (upholding front-pay award of $249, 741 for fifty-three-year-old employee). To complete the example in the text, the present value of an eight-year front-pay award to an employee losing $40, 000 per year in income, at an eight percent discount rate, is $229, 880. In contrast, a one-year backpay award of $200, 000 with an eight percent prejudgment interest rate is $216, 000.
220. Eisenberg and Hill, supra note 8, at 47.
221. Id.; see also Hill, supra note 68, at 794 (noting the same).
222. Eisenberg and Hill, supra note 8, at 45.
223. See id. at 46-47.
224. Hill, supra note 68, at 794.
225. Id.
226. I suppose one answer is that, to save time, a researcher might estimate an average income for a subset of N and P employees and then project that average over the rest of the data set. While such an approach might be justifiable for a huge data set, here we are talking about fewer than 300 case files. Hill does not tell us whether she took this shortcut, and if so, how few cases she sampled to arrive at her estimates of N and P income. The point is not so much that a diligent researcher could be expected to estimate the income for all 300 employees-though that may be true. Rather, the problem is that with such low numbers, the sample-based projection could be highly inaccurate.
227. Hill, supra note 68, at 794.
228. See id. Hill's explanation is befuddling: An estimated 43.5% of the employees in this sample earned between $14, 000 and $60, 000. The employees will be called "P employees" in the instant article....
229. The AAA database uses the letters "P" and "N" to differentiate between those employees who are party to promulgated, or "P, " agreements and those employees who are party to individually negotiated, or "N, " agreements with arbitration clauses in them. I also use the terms "P employee" and "N employee" in this article with the same meaning. I use these terms as a short-hand for income level because 72% of
230. I estimated that 81% of P employees earned no more than $80, 000 annually and that 50% of P employees earned between $14, 000 and $40, 000 annually.
231. Id.
232. Eisenberg and Hill, supra note 8, at 46-47.
233. See infra Part IV. A.2.
234. See Eisenberg and Hill, supra note 8, at 52; supra Table 2.
235. A further potential complicating factor with the N set of arbitrations is the likelihood that this group includes "submission" or "post-dispute" arbitration agreements. Agreements to arbitrate after the dispute has arisen are purely voluntary and are not an issue in the mandatory arbitration debate-that is, they are not "mandatory" arbitrations at all. Therefore, such cases should be excluded from any arbitration data set comparing mandatory arbitration with litigation results. AAA estimated that six percent of its employment arbitrations in 2001 were conducted pursuant to voluntary post-dispute agreements. See Lewis L. Maltby, Out of the Frying Pan, Into the Fire: The Feasibility of Post-Dispute Employment Arbitration Agreements, 30 WM. MITCHELL L. REV. 313, 319 (2003). AAA uses the N and P distinction primarily, not to track data about predispute arbitration clauses, but to set fees: it charges higher administrative fees to claimants with "disputes arising out of individually-negotiable employment agreements and contracts, even if such agreements and contracts reference or incorporate an employer-promulgated plan" than to claimants with disputes that arise out of "employer-promulgated plans." See EMPLOYMENT ARBITRATION RULES, supra note 70, at R.48. If the six percent figure is also good for 1999-2000, then sixteen percent of the N arbitrations analyzed by Eisenberg and Hill would be postdispute arbitration agreements improperly included in a study of predispute agreements. (There were eighty-two N arbitrations out of 215 arbitration awards analyzed by the Eisenberg and Hill sample. Six percent of 215 is thirteen, which is sixteen percent of the eighty-two N cases.) Their inclusion could produce a significant error in their calculations.
236. See Eisenberg and Hill, supra note 8, at 48 tbl.l (showing 133 of the 215 arbitrated claims-roughly sixty percent-were by lower-pay employees).
237. The fact that P employees make up only sixty percent of the arbitration sample, given their undoubtedly much higher proportion of the workforce, suggests that they do not file arbitration claims at very high rates, and tends to undercut the egalitarian defense of mandatory arbitration. Hill in particular hits this theme very hard in her work, so it is especially noteworthy that she doesn't find that question even worth mentioning. See Hill, supra note 68, at 782-83 (describing the lack of court access for lower-pay employees).
238. Id. at 794. Apparently, "key employees" (that is, top executives) are much more likely to have arbitration agreements in their (individually negotiated) employment contracts than are employees generally, and are therefore likely to be at least slightly overrepresented in the N sample. Compare Theodore Eisenberg and Geoffrey P. Miller, The Flight from Arbitration: An Empirical Study of Ex Ante Arbitration Clauses in the Contracts of Publicly Held Companies, 56 DEPAUL L. REV. 335, 349-50 (2007) (stating that thirty-seven percent of key employee employment contracts contain arbitration clauses), with Colvin, supra note 21, at 411 (estimating that fifteen to twenty-five percent of employers generally use predispute arbitration clauses).
239. My point is somewhat different than that made by Alexander Colvin in his critique of the Eisenberg and Hill study. See Colvin, supra note 21, at 415-16. Colvin suggests that the situation of highly compensated employees with sufficient bargaining power to negotiate an individual employment agreement may not raise the same concerns about adhesive predispute agreements that clearly pertain to P employees. Id. Colvin may be right up to a point; on the other hand, some mid-level employees-and even some highly compensated executive types-may individually negotiate key contract terms, like salary, yet submit to adhesive arbitration clauses in the same transaction. See, e.g., Stirlen v. Supercuts, Inc., 60 Cal. Rptr. 2d 138, 140, 159 (Ct. App. 1997) (involving plaintiff, a chief financial officer for defendant company, who was subjected to an onerous arbitration clause). A high proportion of such cases in the "individually negotiated sample" would make that data more relevant to the concerns of compelled arbitration critics.
240. Since Eisenberg and Hill plausibly assert that meaningful access to the courts depends on having a lawyer take the case, see Eisenberg and Hill, supra note 8, at 47, perhaps a better proxy for "cases that go to litigation" than the N and P variable would have been to do some kind of sorting of the pro se cases. Hill reports that twenty percent (40 out of 200) of the AAA sample she analyzed in her sole-authored article consisted of pro se cases. Hill, supra note 68, at 798 n. 92. Apparently all of them were in the P group of 121 cases. Id. at 800, 801 tbl.6. But this is not a straightforward proxy either, since a significant proportion of litigation filings are pro se- seventeen percent in federal employment discrimination cases. See infra note 236 and accompanying text.
241. Eisenberg and Hill, supra note 8, at 45.
242. Id. at 53.
243. Id. at 49.
244. Win rates for "non-civil rights employment disputes": 88 of 173, or approximately fifty percent in arbitration, compared to 82 of 145, or 56.6% in state employment trials. See id. at 48 tbl.l. Award amounts: the mean would be reduced to about $153, 250 in non-civil rights employment arbitrations, compared to $462, 307 in state court employment trials. See id. at 50 tbl.2. Sorting out the pro se cases could well raise the arbitration success rates and awards, but we cannot tell by how much, since the authors do not provide that data.
245. Win rates for civil rights employment disputes: 11 of 42, or 26.2% in arbitration, compared to 43.8% in state and 36.4% in federal court. See id. at 48, tbl.l. Mean award amounts: $202, 971 in arbitration compared to $478, 448 in state and $336, 291 in federal trials. The median is about three times higher in federal, and four times higher in state court trials. See id. at 50 tbl.2.
246. Lisa B. Bingham, Emerging Due Process Concerns in Employment Arbitration: A Look at Actual Cases, 47 LAB. L. J. 108, 115 8c tbl.5 (1996) (comparing employment case decisions in repeat and non-repeat player situations);
247. Bingham, supra note 91, at 205-12; see also Lisa B. Bingham, Is There a Bias in Arbitration of Nonunion Employment Disputes? An Analysis of Actual Cases and Outcomes, 6 INT'L J. CONFLICT MGMT. 369, 374-83 (1995) (reporting the results of a study testing whether employees, on average, receive less of their initial demand when the arbitrator is paid a fee);
248. Lisa B. Bingham, On Repeat Players, Adhesive Contracts, and the Use of Statistics injudicial Review of Employment Arbitration Awards, 29 MCGEORGE L. REV. 223, 235 (1998) (reporting the results of an empirical study of the repeat player effect in employers with personnel manuals). Bingham's work has pride of place in empirical arbitration scholarship as being among the first to attempt to examine the fairness of the arbitration system using rigorous quantitative methods. See Colvin, supra note 21, at 427 ("The first empirical evidence suggesting a concern about repeat player bias... came from a series of studies by Lisa Bingham in the 1990s."). Not surprisingly, it has come in for criticism from arbitration supporters-criticism that is perhaps undeserved, but in any case is unpersuasive. For example, it has been objected that the first arbitration result of an eventual repeat player should have been excluded from the "repeat player" data. See Sherwyn et al., supra note 8, at 1570-71. This point has been persuasively rebutted. See Colvin, supra note 21, at 431. Another claim is that the repeat player effect is entirely, or mostly, explained by a so-called "appellate effect." See Hill, supra note 68, at 814-18; see also Sherwyn et al., supra note 8, at 1571 (interpreting research data as demonstrating that "the availability of an internal review process and the employer's experience with employment cases likely explains the repeat player effect"). That claim is completely overblown. See Colvin, supra note 21, at 429 (arguing that research data do not yet affirmatively support the appellate effect theory).
249. See, e.g., Bingham, supra note 91, at 209-10 and tbls. 2 and 3. For example, employees recovered a median of twenty-eight percent and a mean of forty-eight percent of their claimed dollar amounts against nonrepeat player defendants, but a median of zero percent and a mean of eleven percent of their claimed dollar amounts against repeat player defendants. Employees won damages in over seventy percent (142 of 201) of cases against nonrepeat players, compared to only sixteen percent (5 of 31) in cases against repeat players. Id.
250. See DUE PROCESS PROTOCOL, supra note 61.
251. Lisa B. Bingham and Shimon Sarraf, Employment Arbitration Before and After the Due Process Protocol for Mediation and Arbitration of Statutory Disputes Arising Out of Employment: Preliminary Evidence that Self-Regulation Makes a Difference, in ALTERNATOR DISPUTE RESOLUTION IN THE EMPLOYMENT ARENA 303, 325-26, and tbl.4 (Samuel Estreicher and David Sherwyn eds., 2004). The data are presented as logistic regressions rather than averages, so the numbers are not easily lined up for comparison against her earlier studies.
252. See supra note 90; Colvin, supra note 21, at 408.
253. Colvin, supra note 21, at 430.
254. Id. at 434.
255. See Bingham and Sarraf, supra note 180, at 325-28; Colvin, supra note 21, at 431.
256. See Galanter, supra note 121, at 100-03 (discussing repeat players "playing for rules" in litigation).
257. The use of a mandatory arbitration clause represents a commitment on the part of the defendant to pay private arbitrators at some future time to resolve disputes as they arise. Mandatory arbitration clauses are thus, in an important sense, a promise to purchase a service as the occasion arises. These clauses foster a structured market of private arbitrators and arbitration-administering organizations like the AAA. In the trade, and the academic literature, these institutions are called arbitration "administrators" or "providers, " terms that emphasize their quasi-governmental or even parental characteristics while unduly downplaying their commercial nature. While they may be organized as nonprofits, they can generate significant revenues that would not exist if there were no market for private judging. AAA generates over $70 million per year in administrative fees (a figure which does not include compensation to individual arbitrators), and holds an investment endowment that was worth over $88 million at the end of 2007.
258. See AM. ARBITRATION ASS'N, REPORT ON CONSOLIDATED FINANCIAL STATEMENTS: YEARS ENDED DECEMBER 31, 2007 AND 2006, at 4-5 (2007), available at http://www.adr.org/si.asp?id=5299 (reporting revenues and endowment);
259. EMPLOYMENT ARBITRATION RULES, supra note 70, at R.43-44 (distinguishing AAA administrative fees from compensation and reimbursable expenses of the arbitrator);
260. id. at R.48 ("Arbitrator compensation is not included as part of the administrative fees charged by the AAA."). Accordingly, I prefer to call them arbitration "vendors."
261. EMPLOYMENT ARBITRATION RULES, supra note 70, at R.12 (c).
262. The customer bias is a function of anticipated future business. The number of arbitrations with the one-to-three-year time window of the repeat player studies no doubt is a factor, but the size of the company may be a bigger factor in how an arbitration vendor views its future business potential.
263. Hill, supra note 68, at 822; see also Eisenberg and Hill, supra note 8, at 51 (presenting same data).
264. See Eisenberg and Hill, supra note 8, at 51 tbl.3; see also Hill, supra note 68, at 792 (describing hearing data used in the study).
265. The pieces of missing data that render this assertion tentative are: the average times to disposition of arbitration cases that terminate prehearing, and state court time-to-termination data, which may reflect slower case disposition than federal court.
266. Kevin M. Clermont and Theodore Eisenberg, Litigation Realities, 88 CORNELL L. REV. 119, 136 (2002) (calculating a settlement rate of 66.7% in federal civil cases terminated in 2000).
267. See supra note 120 and accompanying text.
268. See Eisenberg and Hill, supra note 8, at 51 and tbl.3; Hill, supra note 68, at 822. The higher end of the range is the average of five employment discrimination cases by N employees. Eisenberg and Hill, supra note 8, at 51 and tbl.3.
269. See Eisenberg and Hill, supra note 8, at 52; Hill, supra note 68, at 822.
270. See, e.g., Sherwyn et al., supra note 8, at 1572-73; Eisenberg and Hill, supra note 8, at 51. Next time someone asks you for an example of chutzpah, consider telling them about the "time-to-disposition" study that simply omits the slower cases.
271. Hill, supra note 68, at 822 and n. 126. Hill's estimate continues to omit the longest-running eight percent of her data set, which had still not terminated by the time her article went to press. Hill breezily discounts those slowpokes on the ground that the still pending cases "comprise less than 8% of the 440 awards supporting my estimate." Id.
272. Mark Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. EMPIRICAL LEG. STUD. 459, 545 (2004).
273. See Eisenberg and Hill, supra note 8, at 52; supra Table 2.
274. See Hill, supra note 68, at 822.
275. See id. While federal trials may take an average of twenty months for disposition, recall that fewer than four percent of federal cases go to trial. Therefore: (.04 x 20 months) + (.96 + x months) = 8.1 months. Solving for x we get x= (8.1-0.8)/.96 = 7.6 months on average for pretrial resolutions.
276. (.35 x 15.2 months) + (.65 x 7.6 months) = 10.26. If we were to extrapolate further that arbitration prehearing dispositions occurred at a speed relative to final hearings in proportion to the same relationship of pretrial and dispositions (fifteen months for arbitration hearings compared to twenty months for federal trials, or.75), then the mean time to resolution for arbitration cases drops to 8.95 months: (.35 x 15) + (.65 x 7.6 x.75). To be sure, state court cases may take longer than federal cases. Federal trial dispositions in the period studied by Hill averaged around twenty months. State court average trial dispositions were about twenty-seven months, or thirty-five percent longer. If that proportion holds, then perhaps the average overall litigation time to termination would be closer to 10.9 months.
277. See supra Part I. B.
278. Two further caveats are in order. First, appeals should arguably be broken out of the total disposition time of litigation, since they are an option with the parties rather than an automatic incident of litigation. Second, mandatory arbitration is far more likely than consensual arbitration to generate preor post-arbitration litigation. Since that is a cost of doing business (both in time and money) of mandatory arbitration, time studies should include that data on the arbitration side of the ledger- failing to do so would overstate the relative speed of mandatory arbitration.
279. See supra Part II. B.
280. See Hill, supra note 68, at 822.
281. See Christopher R. Drahozal, Arbitration Costs and Forum Accessibility: Empirical Evidence, 41 U. MICH. J. L. REFORM 813, 833 (2008).
282. See Hill, supra note 68, at 799-803.
283. Estreicher puts it this way:
284. The people who benefit under a litigation-based system are those whose salaries are high enough to warrant the costs and risks of a law suit undertaken by competent counsel; these are the folks who are likely to derive benefit from the considerable upside potential of unpredictable jury awards. Very few claimants, however, are able to obtain a position in this "litigation lottery."
285. Most plaintiff lawyers understandably value this system because it enables them to be highly selective about the cases they take on. Moreover, the sheer costs of defending a litigation and the risks of a jury trial create considerable settlement value irrespective of the substantive merits of the underlying claim. Thus, most cases where claimants obtain competent counsel will settle, and at sufficiently high values to give plaintiff lawyers ample economic rewards without actually having to try many law suits. Thus, the system works well for high-end claimants and most plaintiff lawyers, and not very well for average claimants.
286. A properly designed arbitration system, I submit, can do a better job of delivering accessible justice for average claimants than a litigation-based approach. It stands a better chance of providing Saturns for average claimants, in place of the rickshaws now available to the many so that a few can drive Cadillacs.
287. Estreicher, supra note 8, at 563-64.
288. This pattern of assumption-making reflects a common analytical mistake in comparing legal or social institutions, identified by Neil Komesar as "single institutionalism." KOMESAR, supra note 39, at 6-7; see aslo NEIL K. KOMESAR, LAW'S LIMITS 20 (2001) ("The analysis must be comparative institutional not single institutional."). Komesar explores the pitfalls of single institutional analysis primarily in the context of legal rules that distribute legal decisionmaking authority among courts, the political branches of government, and the market. However, as he persuasively shows, the problem, and the need for rigorous examination of parallel flaws, applies to any comparison of two or more institutions' relative functionality. KOMESAR, supra at 20-25. Simple to describe, but hard to avoid falling into, the trap of single institutional analysis means assuming that a flaw associated with salient characteristics of one institution does not exist in its alternative simply because the latter has different characteristics.
289. A common version of this logical fallacy takes the following form: "Institution 1 has characteristic A, which may cause effect X. Institution 2 has characteristic not-A (or less-A). Therefore, Institution 2 does not have effect X" Obviously, if "effect X" can be produced by causes other than characteristic A, the absence of that characteristic does not necessarily free Institution 2 from the effect. See id. at 20-21 (critiquing law and economics scholars' analysis of the common law nuisance doctrine for falling victim to this logical fallacy).
290. See, e.g., RICHARD A. BALES, COMPULSORY ARBITRATION 152-60 (1997) ;
291. Eisenberg and Hill, supra note 8, at 63;
292. Estreicher, supra note 8, at 563-68;
293. Hill, supra note 68, at 782-84;
294. Maltby, supra note 22, at 57-62;
295. Sherwyn et al., supra note 8, at 1578-81;
296. Theodore J. St, Antoine, Mandatory Arbitration: Why It's Better Than It Looks, 41 U. MICH. J. L. REFORM 783, 790-93 (2008). It is also frequently asserted in more qualified terms by scholars who summarize existing research without careful scrutiny of its methodological flaws. See, e.g., Drahozal, supra note 207, at 833-35;
297. Weidemaier, supra note 109, at 847-58.
298. But see supra Part III. D.2 (questioning the assumption that arbitration is less costly than litigation).
299. As Hill asserts, "[lower-pay] employees most likely cannot gain access to the court system;" therefore, "private employment arbitration may be the only adjudicative forum which they can access as a practical matter." Hill, supra note 68, at 794; see also Eisenberg and Hill, supra note 8, at 53 ("Lower-pay employees seem to be unable to attract the legal representation necessary for meaningful access to court.");
300. Estreicher, supra note 8, at 563 (arguing that "[v]ery few claimants" are able to access the litigation system).
301. See, e.g., Hill, supra note 68, at 781; Sherwyn et al., supra note 8, at 1560.
302. See Howard, supra note 125, at 44 (reporting that case intake decisions by contingency fee lawyers are based on the amount of damages).
303. Cf. 42 U. S. C. § 1981a (c) (2006) (allowing recovery of emotional distress and punitive damages in certain employment discrimination cases).
304. See Nancy Levitt, Megacases, Diversity, and the Elusive Goal of Workplace Reform, 49 B. C. L. Rev. 367, 369-70 and 369 n. 20 (2008).
305. Thus, for example, Eisenberg and Hill shift subtly from data to the effect that plaintiffs' employment lawyers generally refuse claims with less than $60, 000 in "provable damages" to the assertion that lawyers will generally refuse cases brought by plaintiff's earning less than $60, 000 per year. Eisenberg and Hill, supra note 8, at 47 (citing Howard, supra note 125, at 45).
306. See supra Part I. B.
307. See Jean R. Sternlight, As Mandatory Binding Arbitration Meets the Class Action, Will the Class Action Survive?, 42 WM. and MARY L. REV. 1, 28-31 (2000) ;
308. Jean R. Sternlight and Elizabeth J. Jensen, Using Arbitration to Eliminate Consumer Class Actions: Efficient Business Practice or Unconscionable Abuse?, LAW and CONTEMP. PROBS., Winter/Spring 2004, at 75, 85-92; see also Amchem Prods., Inc. v. Windsor, 521 U. S. 591, 617 (1997) (" 'The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.'" (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997))).
309. Professor Eisenberg's recent study of consumer arbitration agreements provides a persuasive demonstration that companies using consumer arbitration clauses "do not view consumer arbitration as offering a superior combination of cost savings, expeditious decision-making, consistency, and justice. Rather, they view consumer arbitration as a way to save money by avoiding aggregate dispute resolution. " Theodore Eisenberg et al., Arbitration's Summer Soldiers: An Empirical Study of Arbitration Clauses in Consumer and Nonconsumer Contracts, 41 U. MICH. J. L. REFORM 871, 894-95 (2008);
310. see also Mandatory Binding Arbitration Agreements, supra note 5, at 3 (statement of Rep. Chris Cannon, Member, House Comm. on the Judiciary) (stating that mandatory arbitration clauses are used "because companies increasingly believe they need to protect themselves from abusive class action suits"). Alan S. Kaplinsky, a leading mandatory arbitration spokesman and attorney representing financial services institutions, has claimed that "[arbitration is a powerful deterrent to class-action lawsuits against lenders.... Stripped of the threat of a class action, plaintiffs' lawyers have much less incentive to sue." Paul Wenske, Some Cardholders Are Signing Away Their Right to Sue, KAN. CITY STAR, Apr., 30, 2000, http://kcsweb.kcstar.com/projects/carddebt/2side.htm. Many in the mandatory arbitration defense bar assert that class action bans written into arbitration agreements are enforceable, or that by its very nature, an arbitration agreement permits only individualized dispute resolution. See, e.g., Reply Brief of Petitioner at 24-25, Green Tree Financial Corp. v. Bazzle, 539 U. S. 444 (2003) (No. 02-634).
311. See Green Tree Financial Corp. v. Bazzle, 539 U. S. 444 (2003) (describing the legality of arbitral class actions);
312. Schwartz, If You Love Arbitration, supra note 1, at 413-14 (discussing the state of the law on arbitral class actions) ;
313. Maureen A. Weston, Universes Colliding: The Constitutional Implications of Arbitral Class Actions, 47 WM. and MARY L. REV. 1711, 1732-42 (2006) (same).
314. The high attrition rates of disputes just prior to the litigation filing stage support this view. See, e.g., Miller and Sarat, supra note 105, at 537 tbl.2. The oft-repeated assertions about the limited access to litigation in employment cases, see, e.g., Eisenberg and Hill, supra note 8, at 47; Hill, supra note 68, at 782-83, may well be true, but rest on a sketchy empirical basis that may exaggerate the problem somewhat. The usual source for this claim is Howard's survey of 321 plaintiff's' employment lawyers in California, in which, on average, the responding lawyers each accepted "only" five percent of the potential plaintiff's seeking representation. See Howard, supra note 125, at 43-44. Arbitration supporters like to present that five percent figure as if it actually meant that only five percent of potential claimants get lawyers. See, e.g., Hill, supra note 68, at 783 (plaintiff's' employment lawyers "accepted only 5% of the employment discrimination cases offered them by prospective plaintiff's");
315. Maltby, supra note 22, at 58 (citing the Howard survey for the proposition that "ninety-five percent of those who seek help from the private bar with an employment matter do not obtain counsel"). The five percent figure has thus become a real urban myth. Howard's survey found that each individual attorney accepted an average of five percent of the potential clients screened. Howard, supra note 125, at 43-44. But each lawyer's individual five percent acceptance rate adds up to an overall five percent acceptance rate only if we assume that every potential client either gives up or hires a lawyer after contacting only one lawyer. That is not how things work: persistent claimants will often contact several lawyers before having their case accepted or giving up. If each potential client speaks to an average of three lawyers, then the five percent caseacceptance rate would yield an overall fifteen-percent success rate in getting a lawyer. If each potential client speaks to an average of five lawyers, the five percent case acceptance rate would yield a twenty-five percent rate of client representation. Assume purely for the sake of illustration that there were 400, 000 employees seeking legal representation for potential employment claims, and that each employee speaks with an average of four lawyers before either finding representation or giving up. Assume further that there are 4000 lawyers who represent employee-plaintiff's. The National Employment Lawyers Association, for example, claims 3000 attorney members. See National Employment Lawyers Association (NELA), http://www.nela.org/NELA/index.cfm (last visited February 19, 2009). Assume that each attorney takes an average of twenty cases per year, and the average case-acceptance rate across the attorneys is five percent. Each attorney would thus interview 400 potential clients to find twenty cases. This represents 1.6 million client interviews, which matches the number of interviews generated by 400, 000 potential clients each speaking with four lawyers. The 4000 lawyers end up taking 80, 000 cases among them. In this illustration, then, the five percent case-acceptance rate per lawyer generates an overall representation rate of twenty percent.
316. The point is that a survey of lawyers' case-acceptance rate is not a sensible way to determine the percentage of claimants who get lawyers. A better methodology is to sample a pool of claimants and ask how many of them used lawyers. Miller and Sarat did just this: they found that lawyers were used in 13.3% of discrimination disputes and twenty-three percent of overall grievances. See Miller and Sarat, supra note 105, at 537 tbl. 2.
317. See Eisenberg and Hill, supra note 8, at 44 (reporting 2159 AAA filings);
318. Hill, supra note 68, at 780 (reporting 6 million employees covered by AAA arbitration clauses by 2002).
319. The arbitration filing rate is probably lower than this, since the 2159 AAA arbitrations are likely to have included cases in which parties arbitrated pursuant to a generic clause that did not specify AAA arbitration. That means that the AAA arbitrations are drawn from a pool of more than the 6 million employees covered by AAA predispute agreements.
320. The figure is based on several estimates and extrapolations. In 2001, there were approximately 143 million people in the U. S. workforce (employed and unemployed). BUREAU OF LABOR STATISTICS, U. S. DEP'T OF LABOR, COMPARATIVE CIVILIAN LABOR FORCE STATISTICS, 10 COUNTRIES, 1960-2004, at 10 tbl.2 (2005), available at http://www.bls.gov/fls/ flslforc.pdf. I estimate 260, 000 employment cases, as follows. There were 23, 075 statutory employment cases (discrimination and Fair Labor Standards Act) filed in the federal district courts that year, representing 9.2% of all 251, 000 federal civil filings. See ADMIN. OFFICE OF THE U. S. COURTS, STATISTICAL TABLES FOR THE FEDERAL JUDICIARY 2001, at 29-30 tbl. C-2 (2001) (reporting 23, 075 statutory employment damages claims-21, 062 employment "civil rights" claims and 2013 Fair Labor Standard Act cases). The number of state court employment cases is difficult to determine, since reliable nationwide data on state court business remains a work in progress. Brian J. Ostrom et al., Examining Trial Trends in State Courts: 1976-2002, 1 J. EMPIRICAL LEGAL STUD. 755, 755 (2004). There were 7, 171, 842 civil case filings in state courts of general jurisdiction in 1999. See id. at 757 tbl.l. For this estimate, I assume that a comparable number of cases were filed in 2001. That year, contract trials represented nearly one-third of all state court trials in the seventy-five largest counties, and employment trials with individual employee plaintiff's accounted for about 10.5% (388 of 3676) of the contract trials. THOMAS H. COHEN, U. S. DEP'T OF JUSTICE, CONTRACT TRIALS AND VERDICTS IN LARGE COUNTIES, 2001, at 3 tbl.2 (2005), available at http://www.ojp. usdoj.gov/bjs/pub/pdf/ctvlc01.pdf. If these trial percentages held up for case filings and for state courts overall, then we can extrapolate that about 3.3% of the 7.17 million state court civil cases were employment disputes, or approximately 236, 600 cases. Note that this figure is probably understated, because the many employment disputes filed in state courts of limited jurisdiction (such as small claims courts) and administrative tribunals are not captured in filing statistics for state courts of general jurisdiction. See, e.g., Ostrom, supra, at 757 tbl.l (reporting state court statistics only for courts of general jurisdiction). But they are relevant in determining filing rates in forums displaced by predispute arbitration clauses.
321. Among other things, we would need data on the filing rate for arbitrations outside AAA, and data about pro se representation and plaintiff demographics, to make meaningful comparisons. We would also need to consider the possibility that employers with arbitration clauses resolve a higher proportion of their disputes inhouse. A study by Alexander Colvin, for example, suggests that employers using mandatory arbitration adopt multistep internal dispute resolution procedures at a much higher rate than employers who do not use mandatory arbitration. See Alexander J. S. Colvin, Adoption and Use of Dispute Resolution Procedures in the Nonunion Workplace, in 13 ADVANCES IN INDUSTRIAL AND LABOR RELATIONS 69, 70-93 (David Lewin and Bruce E. Kaufman eds., 2004).
322. See supra note 167 and accompanying text.
323. Only 19.5% of the arbitration awards (42 of 215) reported by Eisenberg and Hill involved employment discrimination claims. Eisenberg and Hill, supra note 8, at 48 tbl.l.
324. See, e.g., Foley v. Interactive Data Corp., 765 P.2d 373, 398 (Cal. 1987) ("[T]he employment relationship is fundamentally contractual, and several factors combine to persuade us that in the absence of legislative direction to the contrary contractual remedies should remain the sole available relief....");
325. MARK A. ROTHSTEIN ET AL., EMPLOYMENT LAW 815-19 (3d ed. 2004) (stating that wage loss provides the measure of contract damages in employment cases).
326. See, e.g., Hensley v. Eckerhart, 461 U. S. 424, 429 (1983) (finding that the purpose of the civil rights attorneys' fees statute is to ensure effective access to the judicial process) ;
327. Matt A. Mayer, The Use of Mediation in Employment Discrimination Cases, 1999 J. DISP. RESOL. 153, 157 (finding that the availability of punitive damages under the Civil Rights Act of 1991 is to encourage wronged individuals and plaintiff's' attorneys to file suit).
328. See Eisenberg and Hill, supra note 8, at 48 (presenting a table showing 173 "non-civil rights" and 42 "civil rights" employment disputes).
329. Statutory employment claims made up 52.4% of the state court 1996 employment trials in the Eisenberg and Hill sample. See id. at 48 tbl.2 (calculating 145 "non-civil rights" and 160 "civil rights" employment trials in 1996). In 2001, employment discrimination cases made up forty-three percent of the state court employment trials in large counties. See COHEN, supra note 226, at 3 tbl.2 (reporting 165 employment discrimination cases, constituting 42.5% of the 388 employment related cases brought by employees). The discrepancy may be that civil rights employment claims may also include statutory wage and hour claims, in addition to discrimination claims. Nonstatutory employment cases in federal court are not broken out of the data and are therefore difficult to estimate. In 2007, the number of statutory employment damages cases filed in federal court (employment discrimination and Fair Labor Standards Act cases) was roughly 20, 000. Other employment cases would appear to represent some fraction of "Other Contract Actions" (roughly 14, 000 cases). See ADMIN. OFFICE OF THE U. S. COURTS, STATISTICAL TABLES FOR THE FEDERAL JUDICIARY, 2007, at tbl. C-2 (2007).
330. See Hill, supra note 68, at 818 n. 125. Eisenberg and Hill used the same data as Hill's original study. See supra note 143.
331. See Colvin, supra note 21, at 432.
332. Clermont and Schwab, supra note 115, at 434 tbl.l (reporting that 16.99% of plaintiff's in employment discrimination cases proceeded pro se). Several key pieces of data are missing from this litigation pro se rate for present purposes. We do not know the pro se rate for employment cases overall; chances are it is lower than seventeen percent. We also need similar data from state court.
333. Taking the figures above, see supra notes 224-26 and accompanying text, as an illustration, and assuming the seventeen percent pro se rate in federal court litigation applies in state court as well, the comparative pro se filing rates would be ninety cases per million employees under mandatory arbitration (twenty-five percent of 360) compared to 309 cases per million employees filed in court (seventeen percent of 1818). In other words, pro se claimants would be more than three times more likely to file in court than in arbitration under these assumptions.
334. Colvin, supra note 21, at 433. Hill found a higher pro se win rate, but worked with a very small sample-thirteen out of forty cases. See Hill, supra note 68, at 820.
335. Curiously, some mandatory arbitration supporters who decry plaintiff's' attorneys for taking so few cases also decry the filing of meridess cases. See, e.g., Estreicher, supra note 8, at 563; Sherwyn, supra note 9, at 17-20; Sherwyn et al., supra note 8, at 1580. Yet they somehow fail to credit the possibility that at least some cases rejected by greedy plaintiff's' attorneys are those same meritless ones.
336. See supra Part II. B.
337. See supra Part II. A.
338. See supra note 44 and accompanying text.
339. See supra Part II. A.2.
340. For examples of consumer arbitration clauses exempting small claims matters from mandatory arbitration, see Dale v. Comcast Corp., 498 F.3d 1216, 1221 (11th Cir. 2007);
341. Jenkins v. First American Cash Advance of Georgia, LLC, 400 F.3d 868, 872 (11th Cir. 2005);
342. Iberia Credit Bureau, Inc. v. Cingular Wireless, 379 F.3d 159, 175 n. 19 (5th Cir. 2004);
343. and Smith v. Steinkamp, 318 F.3d 775, 776 (7th Cir. 2003). The AAA Consumer Due Process Protocol provides that a fair consumer arbitration agreement should have such a carve-out for small claims. AM. ARBITRATION ASS'N, CONSUMER DUE PROCESS PROTOCOL principle 5 (1998), available at http://www.adr.org/sp. aspPid =22019.
344. See, e.g., Estreicher, supra note 8, at 567 (stating that where plaintiff's have not obtained counsel, employers will prefer to keep the case in a litigation system where the case will languish or be dismissed);
345. Sherwyn et al., supra note 8, at 1580 (claiming that mandatory arbitration prevents employers from defeating meritorious claims by "delaying or 'big firming' the employee into a withdrawal or substandard settlement").
346. See Maltby, supra note 166, at 319-21.
347. See supra note 86 and accompanying text.
348. See supra note 31 and accompanying text.
349. Sherwyn claims to have empirically supported his "takes two" hypothesis with an attitudinal survey of 288 Chicago employment defense and plaintiff's' lawyers. See Sherwyn, supra note 9, at 38-50. The survey showed a tendency of both plaintiff's' and defense lawyers to believe that arbitrators were likely to be predisposed against them. See id. at 46 tbl.2. The study is not constructed well enough to tell us anything valid about post-dispute arbitration preferences. Suffice it to say that Sherwyn should have limited his defense lawyer sample to those who recommend predispute arbitration clauses to their employer clients. By surveying a general sample of defense lawyers, Sherwyn necessarily winds up with a majority who would eschew both preand postdispute arbitration agreements.
350. Nor does the low incidence of post-dispute arbitration agreements necessarily support the "takes two" hypothesis. That six percent statistic, see Maltby, supra note 166, at 319-21, may merely reflect the near-universal rejection of arbitration by plaintiff's' lawyers combined with the majority view of defense lawyers. It is not inconsistent with the possibility that defendants who use predispute arbitration agreements tend to prefer arbitration post-dispute in most cases as well.
351. See supra Part II. A.
352. See Sternlight, supra note 12, at 85-87.
353. This is the current state of the law governing arbitration of employment discrimination claims by union members under collective bargaining agreements. Compare McDonald v. City of West Branch, 466 U. S. 284, 288-92 (1984) (holding that a § 1983 claim is not precluded by prior grievance arbitration), Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U. S. 728, 734-46 (1981) (holding the same for an FLSA claim), and Alexander v. Gardner-Denver Co., 415 U. S. 36, 51 (1974) (holding the same for a Title VII claim), with Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 34-35 (1991) (limiting McDonald, Barrentine, and Alexander to union grievance arbitration rather than private mandatory arbitration). See generally Schwartz, supra note 17, at 63 (discussing the "exception to the general rule that arbitration awards have full preclusive effect" created by Alexander and its progeny).
354. Michael Green's proposal to induce employers to agree to arbitrate post dispute by eliminating punitive damages in voluntary arbitrations makes no sense from a claimant's point of view: it simply gives defendants more tort reform than they would get with mandatory predispute arbitration. See Green, supra note 17, at 467-70; Michael Z. Green, Measures to Encourage and Reward Post-Dispute Agreements to Arbitrate Employment Discrimination Claims, 8 NEV. L. REV. 58, 77-80 (2007).
355. H. R. 1020, 111th Cong. (2009).
356. See supra note 6.
357. See, e.g., Leader and Burger, supra note 17, at 117-21 (endorsing the Due Process Protocol and proposing further safeguards);
358. Rutledge, supra note 8, at 563-68 (arguing that the Due Process Protocol satisfies many fairness objections made by mandatory arbitration critics);
359. Theodore St. Antoine, Labor and Employment Law in Two Transitional Decades, 42 BRANDEIS L. J. 495, 525-26 (2004) (stating that with the AAA Due Process Protocol, "[arbitration procedures should be even more favorable for employees");
360. see also Richard A. Bales, Beyond the Protocol: The Future of Due Process in Workplace Dispute Resolution, 11 EMP. RTS. and EMP. POL'Y J. 301 (2007) (summarizing developments).
361. Cf. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U. S. 408, 416 (2003) ("[P]unitive damages... are aimed at deterrence....").
362. See KENNETH M. WOLFF, UNDERSTANDING WORKERS' COMPENSATION 11 (1995).
363. See id. (noting that workers' compensation is provided to work-accident victims regardless of fault).
364. Professor Eisenberg did not weigh in on mandatory arbitration prior to undertaking an empirical study. His long demonstrated, genuine interest in understanding how the litigation system really works, and seeing through popular misconceptions, shows him to be an exception to this statement.
365. See, e.g., Ben-Shahar, supra note 8, at 778-79; Rutledge, supra note 8, at 550-52, 590; Sherwyn et al., supra note 8, at 1560.
366. See supra notes 6 and 254.
367. Actually, I am just being polite: it is not at all hard to see why. Those advancing the pro-plaintiff argument for mandatory arbitration merely pretend to express concern for plaintiff's' interests in order to promote a tort reform agenda. They do not actually believe in the empirical studies showing arbitration to be fair. If Michael Delikat, Chair of the Global Employment Law Practice at Orrick, really believed that plaintiff's did as well in arbitration, why would he advise his clients to go to the trouble of adopting it? See supra note 29 and accompanying text; see also Delikat Bio, supra note 125 (describing Delikat's practice including representative clients). Because of pure process cost savings (arbitration nirvana) ?
368. See Schwartz, Enforcing Small Print, supra note 1, 55-56 and n. 63.
369. See Andrew M. Siegel, The Court Against the Courts: Hostility to Litigation as an Organizing Theme in the Rehnquist Court's Jurisprudence, 84 TEX. L. REV. 1097, 1139-45 (2006) (suggesting that hostility to litigation may provide an explanation for the Rehnquist Court's pro-arbitration jurisprudence).
370. See Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 131-32 (2001) (Stevens, J., dissenting) (stating that a number of Supreme Court decisions had "pushed the pendulum far beyond a neutral attitude [of arbitration] and endorsed a policy that strongly favors private arbitration").
371. See Kenneth F. Durham, Binding Arbitration and Specific Performance Under the FAA: Will This Marriage of Convenience Survive?, 3 J. AM. ARB. 187, 246 (2004) ("The courts appear to have a vested interest in seeing that arbitration continues because it eliminates numerous cases from their overcrowded dockets.").
372. See, e.g., Sternlight and Jensen, supra note 220, at 103.