Symposium: For decades, court has built “an edifice of its own creation” in arbitration cases — it’s time to tear it down and rebuild

Deepak Gupta is the founding principal of Gupta Wessler PLLC. He was counsel of record on an amicus brief for the American Association for Justice supporting the employees in Epic Systems Corp. v. Lewis. The Court has abandoned all pretense of ascertaining congressional intent with respect to the Federal Arbitration Act, building instead, case by case, an edifice of its own creation. No, those words don’t come from Justice Ruth Bader Ginsburg’s dissent this week in Epic Systems v. Lewis — though they’d fit right in. They were written more than two decades ago, by Justice Sandra Day O’Connor. Since then, the edifice O’Connor described has grown exponentially, casting its shadow over all Americans’ ability to band together to enforce the laws designed to protect them. In AT&T Mobility v. Concepcion and American Express v. Italian Colors, the Supreme Court gave companies a green light to use arbitration clauses to cut off collective…

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