The Future of Arbitration

Thursday, March 17 - Friday, March 18, 2011

Over the past several decades, the Federal Arbitration Act (FAA) has been increasingly used by businesses to divert claims from the courts into the arbitral forum that they consider more favorable to them, which in many cases means that, as a practical matter, the claims will never be brought.  In almost every case, the Supreme Court has upheld the position of the person arguing that unwilling parties who signed agreements containing a mandatory pre-dispute arbitration provision can be required to pursue their claims in arbitration. 

Since the enforceability of such agreements is governed by the FAA, Congress can amend the FAA if it believes that those decisions produce undesirable results. The purpose of this conference is to debate the key policy questions surrounding various aspects of arbitration. The program will not be about what the FAA now permits and requires, but what it should permit and require.

Event Materials
AT&T v. Conception - Opinion
Conference Summary


March 17

2-3:30 pm
Panel: Channeling Class Actions into Single Claims Arbitrations

Andrew Pincus, Partner, Mayer Brown
Submission: "Why Consumers, Employees, and Businesses All Benefit From Arbitration In Its Traditional, Individual Form"

Alan Kaplinsky, Partner, Ballard Spahr
Outline: "The Use of Pre-Dispute Arbitration Agreements by Consumer Financial Services Providers"
Submission: "If AT&T Loses Case, So Do Consumers"
Scorecard: "Where Federal and State Appellate Courts and Statutes Stand on Enforcing Class Action Waivers in Pre-Dispute Consumer Arbitration Agreements"

Deepak Gupta, Staff Attorney, Public Citizen Litigation Group
Submission: "Why and How We Should Ban Class-Action Bans"

Joshua Civin, Assistant Counsel of the Economic Justice and Education Practices, NAACP Legal Defense Fund
Submission: "Safeguarding Class Actions as a Key Tool for Civil Rights Enforcement"

3:30-3:45 pm: Break

3:45-5:15 pm
Proper Forum for Class Actions - Court or Arbitration?

Eric Tuchmann, General Counsel and Corporate Secretary, American Arbitration Association
Submission: "The American Arbitration Association's Administration of Class Action Arbitrations"

Brian Wolfman, Visiting Professor of Law and Co-Director, Institute for Public Representation, Georgetown Law
Submission: Outline Statement

Jay Tidmarsh, Professor of Law, Notre Dame Law School
Submission: "Protecting Class Members in Arbitral Class Actions"

March 18

8-8:30 am: Breakfast

8:30-10 am
Panel: Procedural Rules or Limits & Federal vs. State Law

Paul Bland, Senior Attorney, Public Justice
Submission: "Demanding Procedural Fairness in Arbitration"

Nina Pillard, Professor of Law, Georgetown Law
Submission: "What Arbitration Procedures May or Must be Permitted?"

Thomas Stipanowich, Academic Director, Institute for Dispute Resolution, William H. Webster Chair in Dispute Resolution, and Professor of Law, Pepperdine University 
Submission: "Revelation and Reaction: The Struggle to Shape American Arbitration"

Christopher Drahozal, John M. Rounds Professor of Law and Associate Dean for Research & Faculty Development, University of Kansas
Submission: "Arbitration Costs and Access to Justice"

10:15-11:45 am
Panel: The Role of Courts in Supervising Arbitrations

George Bermann, Jean Monnet Professor in EU Law, Walter Gellhorn Professor of Law, and Director of European Legal Studies, Columbia Law School
Submission: "Role of Courts in Supervising Arbitrations"

Nancy Welsh, Professor of Law, Penn State Law
Submission: "Embedded Neutrals and the (Potential) Forfeiture of Deference"

Jean Sternlight, Director of the Saltman Center for Conflict Resolution and Michael and Sonja Saltman Professor of Law, the University of Nevada, Las Vegas
Submission: "The Role of Courts in Interpreting and Enforcing Arbitration Clauses: a Process Viewed Through Two Different Lenses"

Noon-1 pm: Lunch

1:15-2:45 pm
What Should Congress Do Beyond Procedural Reforms?

Kevin Carroll, Securities Industry and Financial Markets Association
Submission and Supplement: "Overview of Pre-Dispute Agreements to Arbitrate (PDAAs) in the Securities Industry"

Elisabeth Stein, American Association for Justice
Submission: Statement

John Roddy, Partner, Roddy Klein & Ryan
Submission: Statement

Stephen Burbank, David Berger Professor for the Administration of Justice, University of Pennsylvania Law School
Submission: Statement


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