Page 66 - Impact: Collected Essays on Expanding Access to Justice

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He went on to write of the Florida Medical Association, “[The FMA] should not falsely claim they are providing a benefit to those injured by medical malpractice when they are in fact restricting their rights to secure adequate legal representation . There really is no other purpose of this proposed amendment .”39
3. forcedArbitration
In 2011, the United States Supreme Court held that the Federal Arbitration Act of 1924 (“FAA”) allows corporations to strip people of their basic right to civil jury trial and force them into private, corporate-designed systems to resolve their disputes . The case was AT&T Mobility LLC v. Concepcion .40 The Court ruled that even when an existing state law protects individuals from abusive forced arbitration clauses, the FAA - a law originally enacted simply to help resolve commercial disputes between businesses – trumps these state laws .
This is a problem for several reasons . Our judicial system is designed to neutralize imbalances between parties through procedural and substantive rights, like the right to know and rebut evidence through discovery, cross-examination and argument, civil rules of procedure, and an impartial judge who is guided by the substantive law . Arbitration, on the other hand, does none of these things . Arbitrators are often on contract with the businesses against which a claim is brought . Often the company, not the victim, is allowed to choose the arbitrator . This creates inherent bias and self-interest on the part of the arbitrator—the arbitrator is motivated to rule in a way that will attract future company business . At the same time, arbitration companies have a financial incentive to side with corporate repeat players who generate most of the cases they handle .
Arbitrators are also not required to have any legal training and they need not follow the law . Court rules of evidence and procedure do not apply . There is limited discovery making it much more difficult for individuals to have access to important documents that may help their claim . Arbitration proceedings are secretive . Decisions are still enforceable with the full weight of the law even though they may be legally incorrect . This is especially disturbing because these decisions are binding . And sometimes, victims must split the sizeable costs of arbitration with the defense .41 Finally, “consent” to forced arbitration is hardly voluntary . These clauses are usually outlined in tiny print, buried in documents and paragraphs and written in legalese that is incomprehensible to most people . And because entire industries are inserting arbitration terms into contracts – including class action waivers - there is little choice but to agree to them .
In March 2015, the federal Consumer Financial Protection Bureau (“CFPB”) released a comprehensive study about the use of forced arbitration clauses in consumer financial contracts .42 CFPB found that among the millions of transactions covered by forced arbitration clauses between consumers and financial institutions, consumers filed very few arbitration cases . From
39 Id. at 38.
40 563 u.S. 333, 343–344 (2011).
41 See, e.g., Jessica Silver-Greenberg & Robert Gebeloff, Arbitration Everywhere, Stacking the Deck of Justice, n.y. Times, Oct. 31, 2015; Jessica Silver-Greenberg & Michael Corkery, In Arbitration, a ‘Privatization of the Justice System,’ n.y. Times, Nov. 1, 2015.
42 See generally consumer financial ProTecTion bureau, arbiTraTion sTudy rePorT To congress, PursuanT To dodd–frank wall sTreeT reform and consumer ProTecTion acT § 1028(a) (2015), available at http://files.consumerfinance. gov/f/201503_cfpb_arbitration-study-report-to-congress-2015.pdf.
Impact: Collected Essays on Expanding Access to Justice