Remediation and Deterrence: The Real Requirements of the Vindication Doctrine

The vindication of statutory rights doctrine, first set forth by the Supreme Court almost three decades ago, has been applied by many courts in deciding whether to invalidate class action waivers located in arbitration clauses. Recently, courts have focused primarily on whether class action waivers violate the doctrine by requiring that named plaintiffs pay prohibitively high costs to arbitrate their claims. The jurisprudence surrounding the vindication doctrine indicates, however, that attention must also be paid to whether full remediation and deterrence can be achieved in the face of a class action waiver.

The key question is whether all putative class members will have their claims vindicated through individual arbitration as opposed to a class action lawsuit. This Essay argues that, in certain situations, federal statutory claims must be pursued as class actions to achieve full vindication through remediation and deterrence. This Essay will highlight the claims that fall into this category and explain which case characteristics render a class action indispensable for the achievement of both goals.