"In early 2018, the text of an employment contract surfaced on Twitter. Munger Tolles & Olson, a prominent Los Angeles law firm, required its summer associates to sign a contract that contained a binding arbitration clause. In and of itself, this was notunusual; binding arbitration clauses are ubiquitous in today's employment contracts. They require employees to submit all employment related grievances to a private, binding system of arbitration and to forfeit their access to the legal system. But this contract was unusually explicit in spelling out the true enormity of what it required new associates to give up. In addition to explaining that, by agreeing to arbitrate, "you are giving up your right to a jury trial," it specified that employment-relatedclaims would include, "without limitation," all "federal, state and local statutory, constitutional, and contractual and/or common law claims." The contract went on to highlight a few examples, such as all claims arising under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Equal Pay Act, the Fair Labor Standards Act, and the Americans with Disabilities Act, as well as a variety of similar state laws. Combined with a non-disclosure requirement, the clause all but ensured that any arbitration proceedings would be kept private, no matter how grave the injury or how unsatisfactory the dispute resolution process"--
While the use of arbitration in the private sector has grown dramatically in recent decades, arbitration itself is not new. Yet the practice today looks very different than it did at its origins. How did arbitration shift from providing a low cost, less adversarial, and more efficient way of handling disputes between relative equals to a private, non-reviewable, and compulsory forum for resolving disputes between individuals and corporations that almost always favors the latter? Privatizing Justice examines the broader institutional, political, and legal dynamics that shaped this century-long transformation and explains why the system that emerged has shifted power to corporations, exacerbated inequality, and eroded democracy.
One of the primary goals of the 1970s-era conservative legal movement was to undo New Deal policies that favored labor at the expense of capital. One of the movement's most effective strategies turned out to be advancing bipartisan legislation on arbitration and convincing the courts that settling disputes that way was preferable to litigation. Today, most consumers and employees today are bound by arbitration agreements, in which they are required to submit all future grievances to a private, binding system of arbitration and forfeit access to the legal system. Arbitration as originally conceived well over a century ago, however, stands in stark contrast to the arbitration in practice today. What changed is that Congress, the Supreme Court, and the private sector began to promote its use in the late twentieth century as a means of protecting corporate and other powerful institutional defendants from the costs of litigation and government regulation itself.
How did arbitration shift from providing a low cost, less adversarial, and more efficient way of handling disputes between entities of equal bargaining power to a private, non-reviewable, compulsory forum for resolving disputes between individuals and corporations, often on unilateral terms? By examining the broader institutional, political, and legal dynamics that shaped and enabled these processes of change over the past 150 years, Privatizing Justice examines how this transformation came about. The product of a broad range of actors and institutions interacting with each other--Congress, presidents, the courts, the administrative state, interest groups, and the business community-the system that emerged has not only transformed the American state in profound ways but exacerbated economic inequality and eroded democracy.
