The John M. Olin Center
Paper Abstract
824. Einer Elhauge, How Italian Colors Guts Private Antitrust Enforcement by Replacing It With Ineffective Forms Of Arbitration, 04/2015; forthcoming in Fordham International Law Journal.
Abstract: The recent US Supreme Court decision in American Express v. Italian Colors Restaurant threatens to gut private antitrust enforcement in the United States by replacing it with ineffective forms of arbitration. The Court's logic that the right to pursue a claim does not include a right to prove it is incoherent. The notion that voluntary consent means arbitration provisions must benefit buyers ignores the fact that buyers have collective action problems that are what justify antitrust law in the first place.