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Arbitration, Transparency, and Privatization
Contextualizing and analyzing recent developments in U.S. arbitration regimes
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Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights
Two developments frame this discussion: the demise of negotiated contracts as the predicate to enforcing arbitration obligations under the Federal Arbitration Act and the reorientation of court-based procedures to assimilate judges’ activities to t…
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Arbitration and Americanization: The Paternalism of Progressive Procedural Reform
This Feature joins recent scholarship suggesting that the Federal Arbitration Act of 1925 (FAA) emerged, at least in part, from a broader Progressive commitment to procedural reform. It departs, however, from the tendency among procedure scholars to co…
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Arbitration’s Counter-Narrative: The Religious Arbitration Paradigm
Arbitration theory and doctrine are dominated by a narrative conceptualizing arbitration via reflection on the qualities of litigation. Litigation, the thought goes, is more procedurally rigorous, but takes longer and costs more; arbitration, on the othe…
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Disappearing Claims and the Erosion of Substantive Law
The Supreme Court’s arbitration jurisprudence from the last five years represents the culmination of a three-decade-long expansion of the use of private arbitration as an alternative to court adjudication in the resolution of disputes of virtually …