Document Type

Article

Publication Title

Notre Dame Law Review

Publication Date

2017

Page Number

1977

Keywords

Federal Arbitration Act, class actions, Justice Scalia, libertarian

Disciplines

Antitrust and Trade Regulation | Judges | Law

Abstract

I have been asked to write an essay on Justice Scalia's class action jurisprudence and although I suspect many readers will find this surprising because the Justice is so often linked to constitutional law, I actually think that his class action jurisprudence may be where his opinions leave some of the biggest marks. To be as blunt about it as the Justice himself would have been: for better or for worse, I am not sure any otherJustice of the Supreme Court in American history has done more to hinder the class action lawsuit than Justice Scalia did.' The Justice did his damage not so much in his opinions interpreting the Federal Rules of Civil Procedure-there, his opinions gave both sides of the class action divide something to like-but in his opinions interpreting the Federal Arbitration Act (FAA). Under the auspices of the FAA, the Justice authored two majority opinions giving a green light to corporations that want to opt out of class-wide liability entirely so long as they do so using arbitration contracts. 2 I am one of the Justice's biggest fans. But his FAA opinions are not my favorites of his opinions. As many commentators have noted, it is very hard to square these opinions with either the text or the history of the FAA.

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.