A Litigator’s Reflections From The Arbitrator’s Chair

Law360 (July 26, 2019, 2:40 PM EDT) -- The U.S. Supreme Court handed down two decisions in 2019 that have drawn renewed attention to arbitration. In Henry Schein Inc. v. Archer and White Sales Inc., a unanimous court held that parties can contract to have the issue of arbitrability decided by the arbitrator, not the court.[1] In Lamps Plus Inc. v. Varela, a less-than-unanimous court held that an ambiguous arbitration agreement in an individual contract was an agreement to “traditional individualized arbitration,” and did not supply the clear consent needed to compel classwide arbitration.[2]

These decisions remind us of the fundamental difference between arbitration and litigation. To be sure,...

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