Steven C. Bennett is a partner at Jones Day in New York City, and an adjunct professor of law at Hofstra School of Law and New York Law School. The views expressed are solely those of the author and should not be attributed to the author’s firm or its clients, or the publisher of this journal.
This article provides an overview of the history of the proposed Arbitration Fairness Act (AFA), which would substantially change the highly effective Federal Arbitration Act (FAA).1 It also discusses the adverse consequences of such an amendment and proposes some “do no harm” alternatives to the AFA that would help ensure the fairness of arbitration without further burdening the courts.
During the last decade, Congressional policymakers have considered the merits of the AFA on an almost annual basis.2 Although some terms of the AFA have varied,3 the essential goal of AFA proponents is to persuade Congress to modify the FAA to render unenforceable pre-dispute arbitration agreements involving consumers, employees, and others who may have little understanding of the arbitration process, and little effective ability to negotiate.4
In late May of 2011, Senators Al Franken (D. Minn.) and Richard Blumenthal (D. Conn.), and Representative Hank Johnson (D. Ga.) an nounced their intention to reintroduce the AFA in the 2011 Congress. Sen. Franken said that the proposed bill would “rectify” the Supreme Court’s “highly proactive rulings and restore consumer rights.”5