Law Professors Symposium

Co-sponsored by the Pound Institute and
The Duke Law School Private Adjudication Center:

The Coming Crisis in Mandatory Arbitration:
New Perspectives and Possibilities

Held Friday-Saturday October 4-5, 2002
Duke Law School, Durham, N.C.

Background

The world of mandatory arbitration is undergoing seismic changes as its impact on everyday life and people’s rights -- become more apparent.

Until recently, the use of mandatory arbitration clauses appeared to provide businesses with a reliable alternative to going to court. The U.S. Supreme Court had embarked on a journey of reading the Federal Arbitration Act (FAA) to apply to all forms of arbitration, without leaving disaffected claimants much leeway to challenge the arbitral requirement. Despite extensive Supreme Court scrutiny over the past decade, courts continue to be deeply involved in considering the appropriate limits of mandatory arbitration. After the Court ruled in Circuit City Stores v. Adams that the FAA mandates enforcement of an employment contract arbitration clauses in a discrimination case, the Ninth Circuit, on remand, found the clause unconscionable under state law and thus unenforceable. The Court itself poked a hole in mandatory arbitration in EEOC v. Waffle House, overruling earlier precedents and holding that an arbitration agreement did not bar the EEOC from pursuing relief on behalf of employee. A federal magistrate judge declared AT&T’s mandatory dispute resolution program "illegal and unconscionable" in Ting v. AT&T.

In addition to the courts, others are also reconsidering fundamental assumptions about the utility of mandatory arbitration:

• Studies suggest that mandatory arbitration is more costly and less efficient than previously advertised.

• The American Arbitration Association has announced it will not handle any health care dispute involving an inpidual, unless she has voluntarily agreed to arbitration.

• California’s State Legislature is considering bills designed to eliminate secrecy, financial conflicts and excessive fees in mandatory arbitration.

• Momentum is building in Congress to pass legislation that would limit the uses of mandatory arbitration or establish methods to ensure quality control.

At the same time, mandatory arbitration remains the preferred means of resolving business disputes:

• As credit card companies change their cardholder agreements to incorporate arbitration agreements;

• As computer manufacturers incorporate mandatory arbitration into the never-read agreements that pop up on screen when starting a new machine for the first time;

• As even the American Bar Association is looking at whether to permit lawyers to insist on arbitration of fee disputes, even while condemning them in the health care arena.

These changes raise many profound questions worthy of serious consideration.

About the Symposium

The Pound Institute and the Duke Law School Private Adjudication Center have invited America’s leading scholars to address some of the most important issues in dispute resolution at The Coming Crisis in Mandatory Arbitration: New Perspectives and Possibilities, a symposium at Duke Law School dedicated to the subject of mandatory arbitration. Over two days this fall, top experts in the field of dispute resolution will present original research on topics such as:

• The nature of secrecy in mandatory arbitration;

• The growing scope of mandatory arbitration;

• The role that federalism concerns should play in the mandatory arbitration debate; and

• The relative performance of arbitrators versus juries when it comes to decision making.

A distinguished panel of law professors, journalists and practitioners will be on hand to offer their insights on the presented papers.

In addition to the groundbreaking papers being presented, in an effort to bridge the academic world with doctrinal developments in the courts, the symposium will feature a mock oral argument of Ting v. AT&T, a mandatory arbitration case working its way through the federal courts. Lawyers involved in the case will present oral arguments to Judge Paul Niemeyer of the Fourth Circuit U.S. Court of Appeals, author of the Waffle House opinion. There will be an opportunity for the audience to question the participants about the strengths and weaknesses of their case and examine the strategies they intend to use in presenting their case for appellate review.

Presenters

The symposium will feature distinguished academics, including some of the foremost experts in the world on dispute resolution, presenting new research on the issue of mandatory arbitration, including:

Lisa B. Bingham, Indiana University School of Public and Environmental Affairs
Mark E. Budnitz, Georgia State University
Christopher R. Drahozal, University of Kansas
Deborah R. Hensler, Stanford University
Thomas Metzloff, Duke University
Richard C. Reuben, University of Missouri-Columbia
David S. Schwartz, University of Wisconsin
Jean R. Sternlight, University of Missouri-Columbia
Katherine Van Wezel Stone, Cornell University
Elizabeth Thornburg, Southern Methodist University
Professor Stephen J. Ware, Samford University

Cost

There was no charge to attend the symposium. There was a nominal fee of $10 to have the papers mailed ahead of time. Papers are available at the above link free of charge.

The Pound Institute

The Pound Institute is a legal think tank dedicated to the cause of promoting access to the civil justice system through its programs, publications, and research grants. The Institute was established in 1956 to build upon the work of Roscoe Pound, Dean of Harvard Law School from 1916 to 1936 and one of the law’s greatest educators. The Roscoe Pound Institute promotes open, ongoing dialogue with the academic and judicial communities, and the public, on issues critical to protecting and ensuring the right to civil justice. At conferences, roundtables, and annual forums, in regular reports and publications, and through grants and educational awards, the Roscoe Pound Institute initiates and guides the debate that brings wide-ranging positive changes to American jurisprudence and strives to guarantee access to justice.

The Private Adjudication Center

The Private Adjudication Center, an affiliate of Duke Law School, provides education, services, and empirical research in dispute management and resolution to clients across the United States. Established in 1983 as a non-profit corporation, the Duke PAC has performed ground-breaking work in the administration of mass tort actions and provides a range of conflict resolution services. For more information, please visit us at www.law.duke.edu/pac/index.html