Fairness in Numbers: A Comment on AT&T V. Concepcion, Wal-Mart V. Dukes, and Turner V. Rogers

CONTENTS I. THE MISE-EN-SCENE: POSITIVE RIGHTS TO COURTS AND LAWYERS--INDIVIDUALLY AND IN THE AGGREGATE 80 A.Challenging Courts 80 B. Open Courts and the Process Due 82 C. Equal, Public, and Stressed Justice 91 D. Cast to Type: Litigants, Lawyers, and Judges 93 E. The Institutional Context of Complex State and 104 Federal Judiciaries, Costly Process, and the Market of Private Dispute Resolution Providers II. MAKING MEANING OF THE FEDERAL ARBITRATION ACT: FROM WILKO V. SWAN TO AT& T V, CONCEPCION 112 A. Scoping Out the 1925 FAA's Reach 113 B. The Fairness of Bilateralism, Boilerplate, and Class 118 Arbitrations III. THE LOGIC OF AGGREGATION: FROM CONSOLIDATION TO CLASS ACTIONS AND WAL-MART V. DUKES 134 A. Shifting the Presumption Toward Grouping 134 B. Class Wars 145 C. Commonality, Individuality, and Access to Courts 148 IV. THE SUBSTANCE OF PROCEDURAL DUE PROCESS: BALANCING DISPARATE RESOURCES AND ADJUDICATING LEGITIMACY IN TURNER V. ROGERS 154 V. DISAGGREGATED UNFAIRNESS, UNFAIR AGGREGATIONS, POLITICAL WILL, AND FRAGILE COURTS 161 VI. THEORIES OF VALUE FOR COURTS IN DEMOCRACY 168 Can eighteenth-century constitutional commitments that "courts shall be open" for private rights enforcement be coupled with twentieth-century aspirations that democratic orders provide "equal justice under law"? That question sits at the intersection of three cases, ATT Rule 23 and Title VII in Wal-Mart; and the Due Process Clause and child support obligations in Turner. AT&T and Wal-Mart presented related questions about how the form of dispute resolution (individual or aggregate) and the place of dispute resolution (public or private, state or federal) affect the level of public regulation of consumer and employment transactions predicated on boilerplate, rather than negotiated, terms. The issue in Turner was whether state-funded lawyers were required before a person could, at the behest of the child's custodian, be incarcerated for contempt for failure to pay child support. The specific case involved two individuals, but their circumstances illustrated the challenges faced by millions of other lawyer-less litigants in state and federal courts. Each case exemplifies the challenges that new rights, produced by twentieth-century social movements, pose for courts. When claimants such as consumers, employees, and household members presented themselves as entitled to equal treatment, jurists responded by interrogating their own procedural parameters. Relying on the Due Process Clause, courts developed distinct lines of analyses that--depending on the context--imposed criteria on decisionmaking procedures, mandated subsidies to address resource asymmetries between adversaries, shaped processes to reduce intra-litigant disparities, and facilitated access to courts. Requisite to those efforts was a practice that is intertwined with fairness--the public quality of adjudication that endows an audience with the authority to watch, critique, and respond through democratic channels to the legal norms announced. A "fair and public hearing" became a touchstone of what democratic orders required their courts to provide. …