Is Arbitration Under Attack? Exploring The Recent Judicial Skepticism of the Class Arbitration Waiver and Innovative Solutions to the Unsettled Legal Landscape

Ramona L. Lampley, Wake Forest University

Abstract

This article explores the hotly debated field of enforcing arbitration clauses with binding class-action waivers. While the enforcement of arbitration clauses generally, and those with class-action waivers specifically, has undergone much debate in the past three years in both the academic and judicial fora; this article casts a new look on the analysis. Instead of advocating simply for or against the enforcement of the class-action waiver, this article analyzes the dialogue between the consumer products industry and the consuming public, via the court system. This dialogue has resulted in a “new wave” of consumer products arbitration agreements: agreements that are both optional and incentivizing.