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    Franchising, Arbitration, and the Future of the Class Action

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    Full-text available at SSRN. See link in this record. (18.97Kb)
    Issue Date
    2009
    Author
    Drahozal, Christopher R.
    Wittrock, Quentin R.
    Publisher
    Ohio State University Moritz College of Law
    Type
    Article
    Version
    http://ssrn.com/abstract=1878004
    Metadata
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    Abstract
    In this article, we consider whether arbitration clauses are likely to result in the extinction of the class action. In our view, the answer is no. We reach that conclusion for two main reasons. First, at least some parties that draft standard form contracts prefer class actions to class arbitrations. This preference is illustrated by the growing use of nonseverability provisions, which provide that if the class arbitration waiver is held unenforceable the entire arbitration clause should be stricken. As a result, the recent court decisions invalidating class arbitration waivers will result in the invalidation of arbitration clauses as well, so that the cases will proceed as putative class actions in court. Second, and more fundamentally, arbitration clauses bundle a variety of characteristics - including but not limited to acting as a class action waiver - into a single means of dispute resolution. Not all drafting parties will agree to arbitration, even if they might prefer individual arbitrations to class actions. The empirical evidence is consistent with this view, as the use of pre-dispute arbitration clauses varies widely in consumer, employment, and franchise contracts. So long as not all contracts include arbitration clauses, and we see no evidence suggesting that they will, class actions will not become extinct.
    Description
    Full-text available at SSRN. See link in this record.
    URI
    http://hdl.handle.net/1808/11277
    Collections
    • Distinguished Professors Scholarly Works [918]
    • Law School Scholarly Works [621]
    Citation
    Christopher R. Drahozal & Quentin R. Wittrock, Franchising, Arbitration, and the Future of the Class Action, 3 ENTREPRENEURIAL BUS. L.J. 275 (2009).

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    Contact KU ScholarWorks
    785-864-8983
    KU Libraries
    1425 Jayhawk Blvd
    Lawrence, KS 66045
    785-864-8983

    KU Libraries
    1425 Jayhawk Blvd
    Lawrence, KS 66045
    Image Credits
     

     

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