July 22, 2018 Articles

The Convergence of Agency Action and Administrative Review in Regulating Arbitration

How many of us—even lawyers—peruse, or even carefully study, the "fine print" of important agreements of financial transactions, such as credit card agreements?

Considering the rise of inclusion of arbitration clauses, which some such as the Consumer Financial Protection Bureau (CFPB) argue are "one-sided" in these agreements, we fail in reading such fine print at our financial risk. These clauses arguably favor arbitration over plaintiff-related litigation, such as seeking redress via causes of action pursued as class actions. To this point, a final Rule published in the Federal Register in 2017, and then withdrawn by a congressional review tool also in late 2017, sheds further light on the propriety of such arbitration clauses, more highlighting what I view as interesting administrative law issues and other questions. (If you are able, it may be worth reading the hundreds of pages of the rulemaking and the related reactions to the rulemaking.) This article briefly notes the final rule and the Congressional Review Act leveraged as a response to the final rule, and then notes what I view as the implications of this clash of the regulatory state with, what is unlikely to disappear across differing administrations, the withdrawal of federal regulations by Congress.

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