European Law and New Health Technologies ESRC End of Award Report, RES-451-26-0764

End of award report for the funded research seminar series of the same name.

Unveiling Fairness for the Consumer:The Law, Economics and Justice of Expanded Arbitration

In recent years, the US Supreme Court has rather controversially extended the ambit of the Federal Arbitration Act to extend arbitration’s reach into, inter alia¸ consumer matters, with the consequence that consumers are often (and unbeknownst to them) denied remedies which would otherwise be available. Such denied remedies include recourse to class action proceedings, effective denial of punitive damages, access to discovery and the ability to resolve the matter in a convenient forum.

The court’s extension of arbitration’s ambit is controversial. Attempts to overturn this extension have been made in Congress, but to no avail. In contrast to American law, European consumer law looks at pre-dispute agreements to arbitrate directed at consumers with extreme suspicion, and does so on the grounds of fairness. In contrast, some argue that pre-dispute agreements in consumer (and employment) matters are consumer welfare enhancing: they decrease the costs of doing business, which is then passed on to the consumer. This Article examines these latter claims from both an economic and normative perspective.

The economic analysis of these arguments shows that their assumptions do not hold. Rather than being productive of consumer surplus, the use of arbitration is likely to have the opposite effect. The industries from which the recent Supreme Court cases originated not only do not exhibit the industrial structure assumed by the proponents of expanded arbitration, but are also industries which exhibit features that facilitate consumer welfare reducing collusion.

The normative analysis addresses the fairness concerns. It is explicitly based upon John Rawls’ notion of “justice as fairness,” which can provide a lens to evaluate social institutions. This Rawlsian analysis considers the use of extended arbitration in consumer matters in the light of the earlier economic results. It suggests that the asymmetries present in the contractual allocation of rights serve as prima facie evidence that such arbitration–induced exclusions are prima facie unjust/unfair. However, as asymmetry is only a prima facie test, a generalized criticism of the arbitration exclusions (of the sort found in Congress and underlying the European regime) is overbroad.

Defensio Prima and the Latin Poets

This chapter, in a prize-winning volume, examines ways in which Milton’s recourse to Latin poetry in Defensio Prima serves a much deeper purpose than that of merely illustrating or lending authority to his argument. Rather, it is argued, the defence engages with a variety of Latin intertexts (Plautus, Terence, Horace, Petronius), which in turn give birth to a range of dramatis personae, with whom Salmasius is ironically and somewhat kaleidoscopically equated. This methodology lends particular force to Milton’s rhetoric of invective whilst hopefully laying to rest the fallacy that his Latin prose writings were writing during a period of ‘poetic inactivity.’ For this is a prose work that is poetically as well as politically aware.

Ballyfermot Leisure and Youth Centre - Building, 2009

Awards:
Award Best Leisure Building - 2009 RIAI Irish Architecture Awards
Special Mention 2009 AAI Awards for Excellence in Architecture

Reviews:
2010/11 RIAI Irish Architecture Review, Dublin Volume 1
2009 AAI New Irish Architecture Cork Volume 24
2009 Architecture Ireland, Dublin Volume 245
2009 A+D Magazine, Brussels Issue No.32
2009 A10 Magazine, Amsterdam Issue 26, March April 2009
2009 PLAN Magazine, Dublin March 2009
2009 PLAN Irish Architecture, Dublin Review 2009
2008 The Irish Times, Dublin November 27th
2008 The Architects Journal, London Volume 228, November 13th