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Notre Dame Law Review

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Federal Arbitration Act, class actions, Justice Scalia, libertarian


Antitrust and Trade Regulation | Judges | Law


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.



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