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Abstract

Forced arbitration has long been controversial. In the 1980s, the Supreme Court expanded the Federal Arbitration Act (FAA), sparking debate about whether private dispute resolution was an elegant alternative to litigation or a rigged system that favors repeat-playing corporations. Recently, these issues have resurfaced, as the Court has decided a rash of cases mandating that lower courts enforce cby lass arbitration waivers in almost all circumstances. Critics argue that abolishing the class action insulates companies from wrongdoing, but businesses have predicted that pro se plaintiffs will flood the arbitral forum with their own low-value claims. The Obama administration responded to the Court’s FAA jurisprudence by regulating arbitration clauses in the employment, financial services, and health care fields. However, after the balance of power shifted in 2017, Republicans have repealed many of these rules.

Despite this policy-making frenzy, we know little about what happens inside the confidential world of arbitration. This Article sharpens our understanding of this pervasive and polarizing institution by reporting the results of an empirical study of 40,775 cases filed in four major arbitration providers between 2010 and 2016. It highlights three main points. First, a wave of reforms has made arbitration surprisingly affordable for consumers, employees, and medical patients. Indeed, in leading arbitration providers such as the American Arbitration Association, the Judicial Arbitration and Mediation Services, and the Kaiser Office of the Independent Administrator, a majority of plaintiffs pay no arbitration fees. Second, enterprising plaintiffs’ lawyers—not pro se litigants—have taken advantage of arbitration’s open doors. In fact, some attorneys have filed class action-style cases, bringing dozens or even hundreds of related arbitrations against the same company. Third, although arbitration does indeed favor repeat-playing businesses, that is just half of the repeat-player story. Repeat-playing plaintiffs’ law firms also fare well. In fact, in a variety of settings, no variable affects win rates as dramatically as whether a plaintiff hires attorneys with arbitration experience.

The Article then uses these findings to propose reform. For decades, state lawmakers have tried to protect substantive rights by exempting claims from arbitration. Yet because the FAA prohibits state law from discriminating against arbitration, these efforts have failed. Accordingly, this Article urges policy-makers to reverse course and create incentives for plaintiffs’ lawyers to arbitrate. Specifically, jurisdictions should create an “arbitration multiplier”: a bounty for winning a case in arbitration. By encouraging skilled plaintiffs’ lawyers to capitalize on arbitration’s accessibility, this approach would counteract the corporate repeat-player advantage. In addition, because the multiplier would actually encourage arbitration, it would not be preempted.

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Link to publisher version (DOI)

10.15779/Z384F1MJ54