The publication by the New York Times of a highly critical series of front-page articles on arbitration of consumer and employment disputes has stirred the pot among practitioners, academics, and others with a stake in Alternative Dispute Resolution. The reportage was flawed, as some in our community were quick to point out. Data took a back seat to anecdotes; perspectives of individual “victims” were given more ink than perspectives of companies; and the reporters failed to note that the Times itself engages in the very practice that the stories condemn — requiring purchasers of “Times Journeys” to waive both the right to sue and the opportunity to seek collective redress.

The practice of class action waivers in arbitration contracts of adhesion has been the subject of several recent Supreme Court rulings and, while perhaps novel to some Times readers, ought to be familiar to readers of this and other blogs. Nevertheless, two of the many strands emerging from the froo-frah that has accompanied this publication have struck me as worthy of particular note. One strand places the development of consumer arbitration class action waiver in the context of the dysfunctional American judicial dispute resolution system, suggesting that the practice is a response to — and an indicator of — much deeper problems that bedevil civil justice in this country. The other strand prompts a dispassionate assessment of collective redress itself, questioning whether the practice of initiating a civil action on behalf of oneself and “others similarly situated” — whether in court or elsewhere — is in fact an exercise reasonably calculated to serve the goal of social justice.

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