The rise of arbitration, meaning the use of a third-party arbitrator to settle disputes outside of court, is being co-opted by corporations to circumvent our constitutional right to a fair trial. Worse yet, it’s gaining popularity. In theory, arbitration does not undercut the right to a fair trial, as both parties involved must agree to it. The problem is that corporations, rather than seeking the consent of the opposing party at the time of the dispute, instead place arbitration clauses within their employee and consumer contracts.
What exactly do these arbitration clauses do? Well, aside from the worrying injustice of circumventing public courts, these clauses prevent class-action lawsuits — in which a group of people can be represented in a single lawsuit —by specifying that those who sign the contract are agreeing to individual arbitration. Try to imagine the frightening situation of a single person having to fight against all the legal resources a corporation has available. Now put that person in an arbitration where the arbitrator is someone chosen by the corporation that the person is trying to sue. Apparently, the destruction of class-action lawsuits isn’t enough. Corporations feel the need to really stick it to the justice system by having the arbitrators be corporate lawyers who often see said corporations as clients.
According to The New York Times, such a depressing incident happened to Deborah L. Pierce, an emergency-room doctor, when she brought a sex-discrimination claim against a medical group. Her case was considered solid. However, this case was put under the scrutiny of a corporate lawyer who she saw having coffee with the head of the medical group. Although Pierce suspected malpractice after the arbitrator ruled against her while using passages taken from the medical group’s lawyers, she was unable to appeal due to the nature of arbitration.
At this point, many would point out that if somebody signs a contract, then that is a legitimate form of consent. After all, that’s what contracts are for. The problem with that is twofold. The first issue comes with the fact that you need corporations more than corporations need you. Corporations need employees and consumers, of course, but they don’t need specific ones, outside of a very few amount of cases. And if we’re being honest, nobody actually reads the entirety of their contracts. According to Voice of San Diego, this problem caused Jon Perz, who bought a car from Mossy Toyota in San Diego, to find out about the arbitration clause only after he tried to sue the seller.
The second, more pressing issue is that these arbitration clauses are common enough that they are essentially impossible to avoid if you’re part of modern society. For instance, AT&T, T-mobile, Verizon and Sprint all have arbitration clauses, according to the Public Citizen organization. When the four largest providers of a service that everybody uses all have arbitration clauses, it becomes fairly difficult to avoid such clauses. Other corporations that use arbitration clauses include, but are not limited to: TV service providers such as Comcast and DirectTV, banks such as Chase and Wells Fargo, student loan providers such as Citibank and Discover, consumer electronics companies such as Sony and Dell and entertainment providers such as Netflix. If you know a person who doesn’t use any of these services, you’ve met a hermit.
This isn’t the first time our constitutional rights have been threatened, and fortunately for us, we have a system in place that will do its best to protect its people. A system of justice, of rational equity —and that system is called the Supreme Court. This is a system that has shot down countless past threats to the liberties we hold dear today. So when it came time to confront this sick subversion of citizens’ legal rights, the Supreme Court stated arbitration clauses are absolutely fine.
If you’re hoping that this is an old, outdated Supreme Court decision, then, boy, do I have bad news for you. Find Law, an online legal business, reported that the decision of AT&T Mobility LLC v. Concepcion was ruled way back in 2011, and not only did it claim that arbitration was good to go, it also stated that arbitration superceded state laws and court rulings.
Arbitration shows how corporations mock the complete lack of power individuals have against them, seeing as how it’s almost impossible to avoid arbitration. It’s even backed up by a Supreme Court ruling that goes so far as to say that state laws don’t matter. What can we do to prevent this quickening decay of our constitutional rights? Absolutely nothing effective. Until the Supreme Court overrules their previous decision, all we can do is complain while we watch our legal rights being torn apart.
