Florida Law Review Publishes Article on Due Process in Class Arbitration
The Florida Law Review has just published an article by Carole J. Buckner entitled Due Process in Class Arbitration, 58 Fla. L. Rev. 185 (2006). Here's an excerpt from the Introduction:
The ubiquity of arbitration clauses in consumer and employment agreements and the Supreme Court's plurality opinion in Green Tree Financial Corp. v. Bazzle, which implicitly permitted class arbitration, marked the beginning of a new era in class arbitration. Although it is well-established that procedural due process is not required in non-class arbitration, at least two state supreme court decisions assume that due process is required in class arbitration. The United States Supreme Court has not directly addressed the issue of whether the law requires due process in class arbitration, despite at least two opportunities to do so. After the Supreme Court implicitly authorized class arbitration in Bazzle, two arbitration providers promulgated procedural rules for class arbitration that provide some measure of due process-like protection to participants, presumably because in the litigation context, class action judgments bind absent class members only when due process protections are present, but probably also because of the uncertainty surrounding this newly developing area of the law.
This Article examines three issues concerning due process in class arbitration. First, it examines whether due process is required in class arbitration under the state action doctrine, even though it is not required in non-class arbitration, and concludes that state action may exist under some current models of class arbitration, requiring due process. Second, the Article addresses whether providing due process in class arbitration is appropriate even if it is not required, given other important doctrinal and practical considerations, just as due process-like protections are provided in non-class arbitration through voluntary protocols. Finally, the Article analyzes three existing approaches to providing due process or due process-like protections in class arbitration and concludes that the provision of such protections through a voluntary due process protocol consistent with a pure arbitral paradigm is preferable-both doctrinally and as a practical matter-to the provision of such protections through a hybrid system of class arbitration or through existing provider systems, all of which to varying degrees "judicialize" class arbitration in violation of the Federal Arbitration Act (FAA).