Oregon Law Review : Vol.102, No.1 (2023)

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Naked Class Waivers
(University of Oregon School of Law, 2024-05-20) Fritz-Mauer, Matthew
Mandatory arbitration agreements have become commonplace. These contracts bind tens of millions of workers and consumers. The mandatory arbitration agreements typically do two things: (1) force individuals to privately arbitrate all disputes and (2) require them to waive their right to participate in class action lawsuits. Legal scholars and experts have criticized this phenomenon for worsening the access to justice crisis, stymying corporate accountability, depriving the public of oversight, and preventing millions from vindicating their civil rights. Class action lawsuits are often the only way to pursue small, widespread violations of the law. And, without a group mechanism, the fundamental rights of millions of people are systematically foreclosed from a legal claim. But something worse than mandatory arbitration is coming—and in many places, is already here: “Naked Class Waivers” that force individuals to give up their ability to participate in group lawsuits without any accompanying arbitration agreement. This Article is the first to explore the increasing prevalence of these coercive and one sided agreements.