by Jeff Sovern
Former Ninth Circuit Judge and Secretary of Education Shirley M. Hufstedler and Former Eighth Circuit Judge, FBI Director, and CIA Director William H. Webster have co-authored a piece in the National Law Journal, Arbitration Under Siege, criticizing the proposed Arbitration Fairness Act, and calling instead for codification of fairness standards. The authors write: "Astonishingly, such legislation [referring to the AFA] would effectively abolish arbitration as a viable alternative for such disputes." What astonishes me about the essay is that it never mentions pre-dispute arbitration clauses, or distinguishes them from agreements to arbitrate after the dispute has arisen. Nor does it justify the statement that the legislation would "effectively abolish arbitration as a viable alternative for such disputes." It also doesn't bother to mention class actions or how predispute arbitration clauses eliminate class actions or how class actions are the only effective way to vindicate some consumer claims. But other than that, it's a great piece. (HT: Norm Silber of Hofstra)
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