Some recent scholarship contends that arbitration is failing in its attempts to compete with litigation. When arbitration does succeed in attracting customers, such as businesses including arbitration clauses in their consumer contracts, commentators assert that it does so illegitimately, such...

This short piece emphasizes what makes consumer and employment arbitration in the securities industry different from consumer and employment arbitration generally. Securities law imposes non-contractual duties to arbitrate on both broker-dealers and securities employees. I believe these laws are...

One way to end the public subsidy for cases that do not deserve it is for courts to charge the parties to such a case a fee high enough to reimburse the court for its costs of adjudicating the case. Several thoughtful commentators have proposed such “user fees.” This Article assesses those...

In the United States, arbitrators’ decisions are legally binding. Courts generally confirm and enforce, rather than vacate, arbitration awards. Suppose, however, that the arbitration award is very different from the judgment a court would have rendered had the dispute been litigated, rather...

At the level of constitutional law, Williams-Yulee is a First Amendment case about judicial campaign fundraising. The First Amendment issues raised by judicial campaigns and money in politics are vital, and they are not the only issues implicated by Williams-Yulee. Williams-Yulee also implicates...

“Private ordering” is an important concept and commonly-used phrase in legal scholarship. At least three “ordering” activities often performed by governments can be privatized: lawmaking, adjudication, and enforcement of adjudicators' decisions. Distinguishing among these activities and...

This Article shows that while a significant amount of commercial arbitration occurred at each stage of U.S. history, labor arbitration was extremely rare until the 20th century, and remained uncommon until the New Deal of the 1930s. In the late 19th and early 20th centuries—amidst vast...