Elastic Batch and Bellwether Proceedings in Mass Arbitration

Bennett Rogers*

This Note will first succinctly review the history of aggregative litigation, including the decline of traditional Rule 23 class actions, the proliferation of arbitration agreements, and both the legislative and judicial support for this change. Next, it will examine plaintiffs’ response to the rise of arbitration with the creation of mass arbitration networks and explain why some companies started to move away from arbitration. Then it will consider the defense bar’s response to mass arbitration with batch and bellwether proceedings, examine the current bellwether arbitration cases moving through the courts, and introduce the latest arbitral institution making headways with its rules and procedures: New Era ADR. Finally, it will identify the additional needs of batch and bellwether arbitration, advance the elastic bellwether model, and demonstrate the theory’s ability to remedy the current issues plaguing mass arbitrations.

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*J.D. Candidate, Notre Dame Law School, 2025; B.A., University of Notre Dame, 2020.  Thanks to Professors Jay Tidmarsh and Roger Alford for their mentorship; Shelly Friedland and Ashley Keller for their insights; Andrew Young, Jake Rinear, and Andrew Garden for their feedback; and my brilliant colleagues at the Notre Dame Law Review for their edits.  Finally, thank you to my mother, Nantiya Ruan, for inspiring me to be a lawyer.  All opinions and errors are my own.