Emptying The Courtrooms . . . 

    The January 27, 2018 edition of The Economist has two short articles critical of arbitration in the US:  "Shut out by the small print" (p. 10) and "Kept out of the courthouse" (p. 61).  The articles are somewhat duplicative — here are a few of the highlights:

• In the early 1990s, 2% of non-unionized employees were bound by mandatory arbitration agreements – now it is more than half.
• Arbitration was originally designed for commercial disputes, and works best when power is balanced between the two sides.
• In employee/employer disputes, and business/consumer disputes, power tends to tip in favor of the employer and the corporation.,
• Employers tend to have better outcomes in arbitration than in court lawsuits.
• Given the political climate, legislative attempts to limit arbitration seem unlikely.
• "The popularity of arbitration is a sign of how very costly and technical the courts have become, says Andrew Pincus, a partner at Mayer Brown, a law firm, who advises companies on such procedures."
• Consent to arbitration is "a fantasy of consent, rather than the real thing," says Katherine Stone at UCLA.
• Arbitrators in employment disputes may be especially reluctant to award punitive damages, out of concern that they will never arbitrate another employment dispute.
• The confidential aspects of arbitration and lack of transparency may silence victims.
• "In the wake of the #MeToo movement, legislators are now taking aim at arbitration in harassment cases."

        HAT TIP to my colleague Mike Hensley who brought the two articles to my attention today.