The Vindication Of Rights Doctrine: Still A Key To The Courtroom Or Arbitration’s Latest Casuality?
John L. Schwab
Posted Thursday, July 25, 2019

For decades, federal courts have had discretion under the vindication of rights doctrine to strike down one-sided arbitration agreements that prevent plaintiffs from effectively vindicating their rights in arbitration. Whether the vindication of rights doctrine still serves as an exception to the FAA, however, was recently called into question in the Supreme Court’s decision in American Express Co. v. Italian Colors Restaurant (“Amex”). In Amex, the Court held that lower courts cannot use the vindication of rights doctrine to strike down arbitration clauses containing class-action waivers. However, Amex also created confusion about whether, and under what circumstances, courts can invalidate other objectionable arbitral features outside of the class-action setting. This Note argues Amex is limited to class-action waiver challenges, and that federal courts can and should continue to invalidate one-sided arbitration agreements under the vindication of rights doctrine.