Questionable Constitutionality: Supreme Court's Amex Ruling

Law360, New York (July 8, 2013, 2:40 PM EDT) -- From the perspective of the substantive law of arbitrability and antitrust law, Justice Elena Kagan’s dissent in American Express Co. v. Italian Colors Restaurant[1] pithily summarizes the error and detrimental impact of the majority decision enforcing an adhesion arbitration clause that, as a practical matter, operates as an exculpation clause because any individual arbitration would be economically irrational to pursue: “The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.”[2]

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