,,,Searching for Clarity Amid Confustion: An Examination of the Standards for Determining Waiver and Revival of the Right to Arbitrate

A hallmark of the American precedent-based legal system is consistency. From jurisdiction to jurisdiction, state court to federal court, legal doctrines built upon the foundation of historic precedent are generally applied with uniform—or at least recognizably similar—rules and guidelines, leading to predictable results.1 That is, unless the subject is waiver of arbitration rights. Under what circumstances does a party involved in litigation waive the right to enforce a valid arbitration agreement? Why does it—or should it—matter if the plaintiff asserts class-action claims? And what may prompt a court to revive previously waived arbitral rights? Those three questions at the heart of this article are seemingly straightforward. But the answers to them are anything but. In the United States, arbitration is increasingly used to resolve disputes in many diverse areas, including those involving consumer, commercial, anti-trust, securities, foreign investments and employment law.2 This