Historical Perspective for the Privatization of Dispute Resolution

     Last night we posted on Kilgore v. KeyBank, a March 7, 2012 Ninth Circuit opinion concerning the enforcement of an arbitration clause. Kilgore is part of the post-Concepcion trend (more like a juggernaut) to apply the Federal Arbitration Act and the Supremacy Clause so as to preempt state court efforts, grounded in public policy considerations, that would otherwise avoid enforcing arbitration clauses.  This morning we read Prof. Amalia Kessler’s op-ed contribution to the March 6, 2012, NYT on-line edition, “Stuck in Arbitration.”  Prof. Kessler’s contribution offers historical perspective to the use of private dispute resolution in the United States.  Her contribution is also a pitch for proposed legislation, the Arbitration Fairness Act.  Prof. Kessler is a professor of law and legal history at Stanford, working on a book about the origins of American adversarial legal culture.