Justice Scalia and Class Actions: A Loving Critique

I am not sure any other Justice of the Supreme Court in American history has done more to hinder the class action lawsuit than Justice Scalia did. Under the auspices of the Federal Arbitration Act (FAA), the Justice authored two majority opinions giving a green light to corporations that want to opt out of class-wide liability entirely so long as they do so using arbitration contracts. It is very hard to square these opinions with either the text or the history of the FAA. In Part I of this Essay, I review the Justice’s class action opinions; I give special emphasis to his opinions interpreting the FAA and explain why I think it is hard to square those decisions with either text or history.

In Part II, I explain why I think even conservative and libertarian ideology may not be consistent with the Justice’s FAA opinions.