Ethical Problems in Class Arbitration

This article examines two significant conflicts of interest that arise in class arbitration in six parts. Part II provides background on the recent evolution of class arbitration, explaining how the Supreme Court had decided several cases involving class arbitration but has not explicitly ruled that class actions are either permitted or forbidden. Part III discusses the conflicts of interest that could arise at the beginning of class arbitration. Part IV discusses conflicts of interest that arise at the end of class arbitration.

Part V of this article argues that if and when Congress amends the Federal Arbitration Act to statutorily permit class arbitration in light of Concepcion, a fully developed statute should be enacted to permit limited judicial supervision of the process of selecting class arbitrators and the process of issuing a class award or approving a class settlement. Part VI concludes.