Creeping mandatory arbitration: Is it just?

Stanford Law Review

Volumn 57, Issue 5, 2005, Pages 1631-1675

  Sternlight, Jean R ^a  

^a UNIVERSITY OF NEVADA   (United States)

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EID: 33646059173     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (236)

1. The controversy surrounding mandatory arbitration begins with its name. Critics of the process feel comfortable labeling it "mandatory," "compelled," or even "cram down" arbitration. See, e.g., Carrie Menkel-Meadow, Do the "Haves" Come Out Ahead in Alternative Judicial Systems?: Repeat Players in ADR, 15 OHIO ST. J. ON DISP. RESOL. 19, 39 (1999) (using the term "cram-down arbitration");
2. David S. Schwartz, Enforcing Small Print to Protect Big Business: Employee and Consumer Rights Claims in an Age of Compelled Arbitration, 1997 WIS. L. REV. 33 (using the term "compelled arbitration");
3. Jean R. Sternlight, Panacea or Corporate Tool?: Debunking the Supreme Court's Preference for Binding Arbitration, 74 WASH. U. L.Q. 637, 638 (1996) (using the term "mandatory arbitration"). In contrast, defenders suggest this nomenclature is inappropriate and unfair. Such defenders urge that as consumers always have the option to refuse the services or products connected to binding arbitration, such arbitration is not mandatory at all.
4. See, e.g., Elizabeth Hill, Due Process at Low Cost: An Empirical Study of Employment Arbitration Under the Auspices of the American Arbitration Association, 18 OHIO ST. J. ON DISP. RESOL. 777, 780 (2003) (using the term "promulgated arbitration");
5. Stephen J. Ware, Consumer Arbitration as Exceptional Consumer Law (With a Contractualist Reply to Carrington & Haagen), 29 MCGEORGE L. REV. 195, 201 (1998) [hereinafter Ware, Consumer Arbitration as Exceptional Consumer Law] ("The consumer is free to put the pen down without signing the form. There is no duress in the typical 'adhesion' contract. A consumer who contracts in such circumstances does so voluntarily.");
6. Stephen J. Ware, Contractual Arbitration, Mandatory Arbitration, and State Constitutional Jury-Trial Rights, 38 U.S.F. L. REV. 39, 43 (2003) ("I ask Professor Sterlight . . . to stop calling contractual arbitration - mandatory arbitration."). In this author's view it makes no sense to dwell a great deal on the nomenclature, given the practical reality that consumers have little if any choice but to accept the arbitration provision mandated by the company. Even in those rare instances when a consumer has read and understood the arbitration clause being required by the company, she likely has little choice but to accept the clause. In many instances competitor companies will require the same or a similar clause. Even if a competitor existed that did not mandate arbitration, it likely would not be worth the consumer's time to conduct the extensive research necessary to identify the competitor. Thus, this Article will continue to call the process "mandatory" arbitration.
7. Knepp v. Credit Acceptance Corp. (In re Knepp), 229 B.R. 821, 827 (Bankr. N.D. Ala. 1999).
8. Paul D. Carrington & Paul H. Haagen, Contract and Jurisdiction, 1996 SUP. CT. REV. 331, 401.
9. Schwartz, supra note 1, at 36-37.
10. See, e.g., Reynolds Holding, Private Justice, S.F. CHRON., Oct. 7, 2001, at A1;
11. Caroline E. Mayer, Hidden in Fine Print: "You Can't Sue Us," WASH. POST, May 22, 1999, at A1;
12. Barry Meier, In Fine Print, Customers Lose Ability to Sue, N.Y. TIMES, Mar. 10, 1997, at A1;
13. Jane Spencer, Signing Away Your Right to Sue, WALL ST. J., Oct. 1, 2003, at D1.
14. Patti Waldmeir, How America Is Privatising Justice by the Back Door, FIN. TIMES (London), June 30, 2003, at 12. While Waldmeir offers praise as well as criticism for the phenomenon, she urges Americans to focus on how arbitration "threatens to transform their experience as consumers and employees." Id.
15. See, e.g., Charles B. Craver, The Use of Non-Judicial Procedures to Resolve Employment Discrimination Claims, 11 KAN. J.L. & PUB. POL'Y 141, 158 (2001) ("Fair arbitral procedures can provide a more expeditious and less expensive alternative that may benefit workers more than judicial proceedings.");
16. Samuel Estreicher, Saturns for Rickshaws: The Stakes in the Debate over Predispute Employment Arbitration Agreements, 16 OHIO ST. J. ON DISP. RESOL. 559, 563 (2001) ("In a world without employment arbitration as an available option, we would essentially have a 'cadillac' system for the few and a 'rickshaw' system for the many.");
17. David Sherwyn et al., In Defense of Mandatory Arbitration of Employment Disputes: Saving the Baby, Tossing out the Bath Water, and Constructing a New Sink in the Process, 2 U. PA. J. LAB. & EMP. L. 73 (1999).
18. See Stephen J. Ware, Paying the Price of Process: Judicial Regulation of Consumer Arbitration Agreements, 2001 J. DISP. RESOL. 89 (arguing that mandatory arbitration lowers consumer prices because competition forces businesses to pass their cost savings on to consumers).
19. For a critique of the Ware argument, see Jean R. Sternlight & Elizabeth J. Jensen, Mandatory Arbitration: Using Arbitration to Eliminate Consumer Class Actions: Efficient Business Practice or Unconscionable Abuse?, LAW & CONTEMP. PROBS., Winter/Spring 2004, at 75, 93 (suggesting that Ware's Panglossian argument that companies pass on all savings to their customers is based on oversimplified economic assumptions).
20. See Stephen J. Ware, Arbitration Under Assault; Trial Lawyers Lead the Charge, POL'Y ANALYSIS, Apr. 18, 2002, at 8, available at http://www.cato.org/pubs/pas/pa433.pdf ("What opponents of so-called mandatory arbitration really oppose is freedom of contract.").
21. See, e.g., JEROLD S. AUERBACH, JUSTICE WITHOUT LAW? 32-33, 43-44, 101-14 (1983) (examining arbitration that existed in colonial America);
22. William Catron Jones, Three Centuries of Commercial Arbitration in New York: A Brief Survey, 1956 WASH. U. L.Q. 193, 194 (examining uses of arbitration in New York, beginning with the Dutch West India Company in the 1600s, and concluding that "arbitration has been an important means of deciding disputes since the earliest days of European settlement in New York in the seventeenth century").
23. See, e.g., JACKSON H. RALSTON, INTERNATIONAL ARBITRATION FROM ATHENS TO LOCARNO (1929) (discussing, inter alia, arbitration among the Gods in Greek mythology);
24. Daniel E. Murray, Arbitration in the Anglo-Saxon and Early Norman Periods, 16 ARB. J. 193 (1961).
25. See, e.g., Lisa Bernstein, Opting out of the Legal System: Extralegal Contractual Relations in the Diamond Industry, 21 J. LEGAL STUD. 115 (1992);
26. Soia Mentschikoff, Commercial Arbitration, 61 COLUM. L. REV. 846 (1961).
27. GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION 7-11 (2d ed. 2001). Arbitration agreements are typically more enforceable in foreign countries than are court decrees because over one hundred countries have adopted the New York Convention requiring them to enforce arbitral awards issued by other signatory countries. Id. at 8. In contrast, fewer countries are signatory to conventions requiring them to enforce each others' court decisions. Id.
28. IAN R. MACNEIL, AMERICAN ARBITRATION LAW: REFORMATION, NATIONALIZATION, INTERNATIONALIZATION 19 (1992).
29. See, e.g., Tobey v. Bristol, 23 F. Cas. 1313, 1319-23 (D. Mass. 1845) (No. 14,065) (refusing to use equitable powers to enforce predispute agreement to arbitrate). For a good discussion of the "ouster doctrine," see Richard C. Reuben, Public Justice: Toward a State Action Theory of Alternative Dispute Resolution, 85 CAL. L. REV. 577, 598-601 (1997).
30. 9 U.S.C. §§ 1-16, 201-208, 301-307 (2000).
31. As noted earlier, see supra note 1, some would quibble with my use of the word "require" to describe companies' imposition of arbitration.
32. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 414 (1967) (Black, J., dissenting) (citing Hearing on S. 4213 and S. 4214 Before the Subcomm. of the Senate Comm. on the Judiciary, 67th Cong. 9-11 (1923)); see also Schwartz, supra note 1, at 75.
33. See supra note 1.
34. According to Constantine Katsoris, the New York Stock Exchange began to require its investors to arbitrate future disputes in 1872. Constantine N. Katsoris, The Resolution of Securities Disputes, 6 FORDHAM J. CORP. & FIN. L. 307, 310-11 (2001).
35. 346 U.S. 427 (1953).
36. Id. at 435.
37. Id. at 436.
38. Id.
39. See, e.g., Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974) (holding that social policy favoring the use of arbitration in the international commercial context supported requiring the use of arbitration in a § 10(b) securities claim between American and German companies).
40. de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 481 (1989).
41. 460 U.S. 1 (1983).
42. Id. at 24-25 (explaining that because questions of arbitrability "must be addressed with a healthy regard for the federal policy favoring arbitration," "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability"). Interestingly, the Court did not provide an explicit rationale for why arbitration should be favored over litigation, and it can reasonably be inferred that the Court was influenced by a perception, true or not, that courts were swamped with cases. See Sternlight, supra note 1, at 660-66. While the Court had long expressed enthusiasm for arbitration of collective bargaining concerns, its decisions had always emphasized that labor arbitration is justified by entirely different policy concerns than justify commercial arbitration. United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578 (1960) (explaining that whereas in commercial disputes "the choice is between the adjudication of cases or controversies in courts with established procedures or even special statutory safeguards on the one hand and the settlement of them in the more informal arbitration tribunal on the other," in the collective bargaining context "arbitration is the substitute for industrial strife").
43. 500 U.S. 20 (1991).
44. Id. at 35. Gilmer argued that requiring arbitration of employment discrimination claims would be inconsistent with public policy and undermine the role of the EEOC, but the Court rejected both arguments. Id. at 26-29. The Court also found that Gilmer had failed to provide sufficient evidence to support his claims that the particular arbitration procedures called for in his agreement were inadequate. Id. at 30-35.
45. Many had previously interpreted the Court's decision in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), to proscribe courts from forcing employees to arbitrate claims against their employers. In that case, the Court had held that employees whose union contracts contained arbitration clauses could nonetheless bring discrimination claims in court, even if they had already lost on those claims in arbitration. While Gilmer did not reverse Alexander, see Gilmer, 500 U.S. at 33-35, it certainly created a tension with that decision that remains to this day, leaving open the question of whether union members retain a right to sue their employers in court on statutory claims. In Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998), the Court granted certiorari to resolve a split among the circuits on this issue, but ultimately punted on the question, instead ruling only that at minimum a collective bargaining agreement could be interpreted to require an employee to waive litigation of statutory claims only if that waiver was "clear and unmistakable." Id. at 79-80.
46. See, e.g., Wash. Mut. Fin. Group v. Bailey, 364 F.3d 260 (5th Cir. 2004) (upholding arbitration clause imposed on illiterate consumer borrower); McKenzie Check Advance of Miss. v. Hardy, 866 So. 2d 446 (Miss. 2004) (upholding arbitration clause imposed on payday-loan borrowers).
47. See, e.g., Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995) (upholding arbitration clause imposed on consumer purchasing termite extermination services); Carbajal v. H&R Block Tax Servs., Inc., 372 F.3d 903 (7th Cir. 2004) (upholding arbitration clause imposed on person who obtained tax preparation services, and generally stating that unconscionability arguments are improper where arbitration is selected "voluntarily"); Ting v. AT&T, 319 F.3d 1126 (9th Cir. 2003), cert. denied, 540 U.S. 811 (2003) (striking, as unconscionable, arbitration clause imposed on telephone users).
48. See, e.g.., Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir. 1997) (upholding arbitration clause imposed on computer purchasers by including arbitration provision in warranty brochure in computer box); Cavalier Mfg., Inc. v. Clarke, 862 So. 2d 634 (Ala. 2003) (upholding arbitration clause imposed on mobile home purchasers).
49. See Popovich v. McDonald's Corp., 189 F. Supp. 2d 772, 777-78 (N.D. Ill. 2002).
50. See Ellie Winninghoff, In Arbitration, Pitfalls for Consumers, N.Y. TIMES, Oct. 22, 1994, § 1, at 37.
51. See, e.g., Broemmer v. Abortion Servs. of Phoenix, Ltd., 840 P.2d 1013, 1014-15 (Ariz. 1992) (voiding an arbitration clause imposed by an abortionist on a patient); Engalla v. Permanente Med. Group, 938 P.2d 903, 922 (Cal. 1997) (holding that evidence supported claim that arbitration was fraudulently imposed on an HMO customer); Sosa v. Paulos, 924 P.2d 357, 361-62 (Utah 1996) (refusing to void an arbitration clause imposed on a patient in an operating room).
52. See, e.g., Briarcliff Nursing Home, Inc. v. Turcotte, 2004 WL 1418698 (Ala. June 25, 2004) (upholding arbitration clause imposed on nursing home resident despite claims of alleged bias and lack of opportunity to obtain nursing home placement without accepting arbitration); Sanford v. Castleton Health Care Ctr., L.L.C., 813 N.E.2d 411 (Ind. Ct. App. 2004); Howell v. NHC Healthcare-Ford Sanders, Inc., 109 S.W.3d 731 (Tenn. Ct. App. 2003). See generally Nora Lockwood Tooher, Arbitration Agreements in Nursing Home Admissions Becoming Widespread, LAWYERS WEEKLY USA (Sept. 27, 2004), available at http://www.lawyersweeklyusa.com (subscription required).
53. See, e.g., Elizabeth F. Farrell, Signer Beware: For-Profit Colleges Increasingly Use Arbitration Agreements to Prevent Lawsuits, CHRON. HIGHER EDUC., Apr. 18, 2003, at A33; Bercovitch v. Baldwin Sch., Inc., 191 F.3d 8 (1st Cir. 1999) (upholding arbitration clause imposed by school); Accomazzo v. CEDU Educ. Servs., Inc., 15 P.3d 1153 (Idaho 2000) (holding that a child was not bound to an arbitration clause imposed by an educational service provider because the child was merely a third-party beneficiary to the clause).
54. See Press Release, Trial Lawyers for Public Justice, New Trap Door for Consumers: Card Issuers Use Rubber-Stamp Arbitration to Rush Debts into Default Judgments (Feb. 17, 2005), available at http://www.consumerlaw.org/initiatives/model/content/ArbitrationNAF.pdf (asserting that one arbitration provider, the National Arbitration Forum, handles about fifty thousand arbitrations of debt collection cases each year, and that consumers almost never prevail, even though a number of the consumers were victims of fraudulent misuse of their credit cards).
55. Linda J. Demaine & Deborah R. Hensler, "Volunteering" to Arbitrate Through Predispute Arbitration Clauses: The Average Consumer's Experience, LAW & CONTEMP. PROBS., Winter/Spring 2004, at 55 (focusing on industries that provided what the authors term "important purchases" - transactions that were expensive (e.g., automobile purchases), ongoing (e.g., long distance telephone service), or that had a potentially large impact (e.g., purchase of health care services)).
56. One article estimated that between 8-10% of nonunionized U.S. employers require their employees to resolve disputes through binding arbitration. Katherine V.W. Stone, Employment Arbitration Under the Federal Arbitration Act, in EMPLOYMENT DISPUTE RESOLUTION & WORKER RIGHTS IN THE CHANGING WORKPLACE 27, 27 (Adrienne E. Eaton & Jeffrey H. Keefe eds., 1999);
57. see also Alexander J.S. Colvin, From Supreme Court to Shopfloor: Mandatory Arbitration and the Reconfiguration of Workplace Dispute Resolution, CORNELL J.L. & PUB. POL'Y (forthcoming 2005) (citing surveys from 1998 and 2003 of establishments in the telecommunications industry indicating that between 14-16% of such establishments had adopted mandatory arbitration).
58. According to one recent article, from 1998 to 2003 the number of employees required to arbitrate by American Arbitration Association clauses increased from three to seven million. Employees Signing Away Right to Sue, MIAMI HERALD, Oct. 15, 2003, http://www.miami.com/mld/miamiherald/business/7024386.htm?1c.
59. 9 U.S.C. § 2 (2000).
60. See, e.g., Ting v. AT&T, 319 F.3d 1126 (9th Cir. 2003) (striking, as unconscionable, an arbitration clause imposed on telephone users using an envelope stuffer); Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir. 1997) (upholding an arbitration clause imposed on computer purchasers by including an arbitration provision in a warranty brochure in a computer box).
61. See, e.g., Dell Inc., Dell's Online Policies: U.S. Terms and Conditions of Sale, at http://www1.us.dell.com/content/topics/global.aspx/policy/en/policy?c=us&1= en&s=gen&∼ck=1f&~section=012 (last visited Feb. 19, 2005);
62. ebay Inc., Your User Agreement, at http://pages.ebay.com/help/policies/user-agreement.html?ssPageName=f:f:US (last visited Mar. 19, 2005);
63. Gateway, Inc., Gateway Consumer Service Plans, at http://content.gateway.com/www.gateway.com/about/legal/warranties/ 8510306ConVAS88757B_306.pdf (last visited Feb. 19, 2005).
64. See, e.g., Campbell v. Gen. Dynamics Gov. Sys. Corp., 321 F. Supp. 2d 142 (D. Mass. 2004) (holding e-mail notification insufficient to require employee to resolve future disputes through binding arbitration).
65. Banana Republic, Important Notice Regarding Banana Republic Credit Card Accounts Monogram Credit Card Bank of Georgia 1-2 (June 2004) (on file with author).
66. See infra notes 66-80 and accompanying text for a discussion of how courts have handled such clauses.
67. See, e.g., Circuit City Stores, Inc. v. Adams, 279 F.3d 889, 894 (9th Cir. 2002) (holding invalid an employment clause that imposed a shortened statute of limitations on employees); Stirlen v. Supercuts, Inc., 60 Cal. Rptr. 2d 138 (Ct. App. 1997) (holding shortened time limit unconscionable).
68. The typical arbitration clause leaves the extent of discovery in part to the discretion of the arbitrator, but it is well recognized that less discovery is usually available in arbitration than in litigation. This limit on discovery will often have an adverse impact on claimants, since information is often in the possession of the company. See Schwartz, supra note 1, at 46-47; Sternlight, supra note 1, at 683-84. A few courts have held that they will not enforce arbitration clauses that unduly limit access to essential documents and witnesses. See, e.g., Armendariz v. Found. Health Psychcare Servs., Inc., 6 P.3d 669, 684 (Cal. 2000).
69. See, e.g., Patterson v. ITT Consumer Fin. Corp., 18 Cal. Rptr. 2d 563, 565-66 (Ct. App. 1993) (refusing to enforce an arbitration clause imposed by a financing organization on California consumers that apparently required arbitration to be heard in Minneapolis, observing that procedures that might be fair as applied to business entities are not necessarily fair as applied to consumers); Brower v. Gateway 2000, Inc., 676 N.Y.S.2d 569, 571-75 (App. Div. 1998) (finding unconscionable an arbitration agreement that required consumers to arbitrate claims against a computer vendor in Chicago).
70. For a discussion of unconscionability attacks made on clauses that proscribe class actions, see Sternlight & Jensen, supra note 8.
71. See, e.g., Adams, 279 F.3d 889 (holding an arbitration clause imposed on employees unconscionable in part because it limited the amount of damages and front and back pay); Ex parte Thicklin, 824 So. 2d 723 (Ala. 2002) (holding an arbitration clause unconscionable to the extent it foreclosed consumers' right to recover punitive damages).
72. See, e.g., Harris v. Green Tree Fin. Corp., 183 F.3d 173, 176-77, 182-84 (3d Cir. 1999) (upholding the enforceability of an arbitration clause appearing in small print on the back and near the bottom of a form contract employed as part of a secondary mortgage contract allegedly used as part of a scheme to defraud elderly, unsophisticated low- and middle-income home owners); Patterson v. Tenet Healthcare, Inc., 113 F.3d 832, 834-35 (8th Cir. 1997) (enforcing an arbitration agreement appearing on page thirty-one of an employee handbook).
73. See, e.g., Duffield v. Robertson Stephens & Co., 144 F.3d 1182, 1200-01 (9th Cir. 1998). For two arguments that state action may exist in such circumstances, see Reuben, supra note 15, at 615-19 (arguing that the intertwining of public and private processes in enforcement of contractual arbitration gives rise to state action), and Jean R. Sternlight, Rethinking the Constitutionality of the Supreme Court's Preference for Binding Arbitration: A Fresh Assessment of Jury Trial, Separation of Powers, and Due Process Concerns, 72 TUL. L. REV. 1, 40-47 (1997) (arguing that state action exists at least to the extent courts are relying on a preference for arbitration over litigation to interpret the validity and scope of arbitration agreements).
74. See generally Richard C. Reuben, Constitutional Gravity: A Unitary Theory of Alternative Dispute Resolution and Public Civil Justice, 47 UCLA L. REV. 949, 1046-86 (2000); Sternlight, supra note 56, at 80-98.
75. See Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (stating that due process is flexible, and emphasizing that requirements of due process depend on the context of the dispute).
76. U.S. CONST, amend. VII.
77. For a longer discussion of the Seventh Amendment argument, see Jean R. Sternlight, Mandatory Binding Arbitration and the Demise of the Seventh Amendment Right to a Jury Trial, 16 OHIO ST. J. ON DISP. RESOL. 669 (2001).
78. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 29 (1991) (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985)).
79. Mitsubishi Motors Corp., 473 U.S. at 628.
80. Gilmer, 500 U.S. at 30-33.
81. 531 U.S. 79 (2000).
82. Id. at 92. For an analysis of cases in which plaintiffs attacked arbitration clauses on the ground that the costs of arbitration would be excessive, see Michael H. LeRoy & Peter Feuille, When Is Cost an Unlawful Barrier to Alternative Dispute Resolution? The Ever Green Tree of Mandatory Employment Arbitration, 50 UCLA L. REV. 143 (2002).
83. 9 U.S.C. § 2 (2000); see, e.g., Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265, 281 (1995) (stating that "[s]tates may regulate contracts, including arbitration clauses, under general contract law principles and they may invalidate an arbitration clause 'upon such grounds as exist at law or in equity for the revocation of any contract'" (quoting 9 U.S.C. § 2)).
84. See, e.g., Gibson v. Neighborhood Health Clinics, Inc., 121 F.3d 1126, 1131-32 (7th Cir. 1997).
85. See, e.g., Seifert v. U.S. Home Corp., 750 So. 2d 633, 642-43 (Fla. 1999).
86. See, e.g., Engalla v. Permanente Med. Group, Inc., 938 P.2d 903, 916-22 (Cal. 1997).
87. See, e.g., Ting v. AT&T, 182 F. Supp. 2d 902, 939 (N.D. Cal. 2002), aff'd in relevant part, 319 F.3d 1126 (9th Cir. 2003).
88. For a discussion of the question of whether prohibiting class action remedies renders arbitration clauses unconscionable, see Sternlight & Jensen, supra note 8.
89. See, e.g., Arnold v. United Cos. Lending Corp., 511 S.E.2d 854 (W. Va. 1998).
90. See, e.g., Badie v. Bank of Am., 79 Cal. Rptr. 2d 273 (Ct. App. 1998) (finding that bank customers had not consented to arbitration merely by agreeing that the bank could unilaterally change any "term, condition, service or feature" of the account).
91. See, e.g., Palm Harbor Homes, Inc. v. Crawford, 689 So. 2d 3 (Ala. 1997) (finding that manufacturer waived right to require consumer to arbitrate breach of warranty claim by substantially invoking litigation process).
92. The predominant reason some courts have refused to enforce arbitration clauses is unconscionability. See, e.g., Jeffrey W. Stempel, Arbitration, Unconscionability, and Equilibrium: The Return of Unconscionability Analysis as a Counterweight to Arbitration Formalism, 19 OHIO ST. J. ON DISP. RESOL. 757 (2004).
93. However, if a contract leaves a place for a signature and remains unsigned, it should not be unenforceable. See Crown Pontiac, Inc. v. McCarrell, 695 So. 2d 615 (Ala. 1997).
94. See, e.g., Marsh v. First USA Bank, 103 F. Supp. 2d 909, 916-19 (N.D. Tex. 2000) (holding that consumers bear burden of proving nonreceipt of arbitration clause once company has presented evidence that the clause was mailed); Craig v. Brown & Root, Inc., 100 Cal. Rptr. 2d 818, 820-21 (Ct. App. 2001) (holding employee bound by arbitration clause he claimed he had not received).
95. A recent case to this effect is Washington Mutual Finance Group v. Bailey, 364 F.3d 260 (5th Cir. 2004), in which the court found that a group of illiterate plaintiffs were bound by the arbitration clause they had signed in connection with obtaining loans together with insurance they now say they did not want or need. The illiterate plaintiffs complained that even after they told the bank they "could not read and inquired as to the nature of the documents they were signing," the bank stated only that they were signing "insurance and finance papers." Id. at 265. The Fifth Circuit found this complaint irrelevant, explaining that parties to contracts have a duty to read the contract or have it read to them. Id. at 266.
96. See Am. Gen. Fin. Servs., Inc. v. Griffin, 327 F. Supp. 2d 678, 683 (N.D. Miss. 2004) (holding that blindness is not a valid defense to formation of an arbitration agreement).
97. Compare Alexander v. Anthony Int'l, 341 F.3d 256, 270-73 (3d Cir. 2003) (finding that entire arbitration clause must be voided due to unfair portions), with Gannon v. Circuit City Stores, Inc., 262 F.3d 677, 683 (8th Cir. 2001) (holding that a punitive damages exclusion provision in arbitration agreements should be severed, rather than voiding the entire arbitration clause).
98. For discussion of possible jury trial arguments, see Jean R. Sternlight, The Rise and Spread of Mandatory Arbitration as a Substitute for the Jury Trial, 38 U.S.F. L. REV. 17 (2003).
99. See, e.g., Mitchell v. Am. Fair Credit Ass'n, 122 Cal. Rptr. 2d 193 (Ct. App. 2002) (invalidating arbitration provision under California Credit Services Act of 1984 because, contrary to requirements of the Act, the arbitration provision was not signed by the credit consumer); Garfinkel v. Morristown Obstetrics & Gynecology Assocs., 773 A.2d 665 (N.J. 2001) (holding that employees may waive the right to judicial remedy for violation of the New Jersey Law Against Discrimination in favor of binding arbitration only if the waiver is clear and unequivocal so as to ensure the waiver was knowing and voluntary).
100. See, e.g., Doctor's Assocs. v. Casarotto, 517 U.S. 681, 683 (1996) (holding that the FAA preempted a Montana statute requiring that arbitration clauses in franchise agreements be "typed in underlined capital letters on the first page of the contract"); Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995) (holding that the FAA preempts an Alabama statute proscribing use of predispute arbitration provisions).
101. For a comparison of usage of mandatory binding arbitration in the United States to usage in the rest of the world, see Jean R. Sternlight, Is the U.S. Out on a Limb? Comparing the U.S. Approach to Mandatory Consumer and Employment Arbitration to That of the Rest of the World, 56 U. MIAMI L. REV. 831 (2002). There may be some use of mandatory employment arbitration in Canada.
102. See generally John-Paul Alexandrowicz, A Comparative Analysis of the Law Regulating Employment Arbitration Agreements in the United States and Canada, 23 COMP. LAB. L. & POL'Y J. 1007, 1008 (2002) (stating that such clauses are "still relatively uncommon" in Canada but implying that at least some do exist).
103. See infra notes 88-91 and accompanying text.
104. Dispute Resolution Servs., Surveyors' Arbitration Scheme 2003, at http://www.arbitrators.org/DRS/Schemes/chartered_surveyors.htm (last visited Feb. 19, 2004).
105. See Sternlight, supra note 84, at 863.
106. Council Directive 93/13 of 5 April 1993 on Unfair Terms in Consumer Contracts, 1993 O.J. (L 95) 29 [hereinafter Council Directive 93/13]. For further discussion of the European approach to consumer arbitration, see Sternlight, supra note 84, at 844-48.
107. Council Directive 93/13, supra note 88, at Annex (1)(q).
108. Commission Recommendation 98/257 of 30 March 1998 on the Principles Applicable to the Bodies Responsible for Out-of-Court Settlement of Consumer Disputes (Text with EEA Relevance), 1998 O.J. (L 115) 31, 33. The recommendation relies on Article 6 of the European Human Rights Convention, which it characterizes as providing that "access to the courts is a fundamental right that knows no exceptions." Id. at 32. Commission recommendations are commonly referred to as "soft law." Although they are not technically binding on member countries, they do have a strong practical effect.
109. See Sternlight, supra note 84, at 847.
110. See Alan M. White & Cathy Lesser Mansfield, Literacy and Contract, 13 STAN. L. & POL'Y REV. 233 (2002) (analyzing literacy research which demonstrates that a shockingly high percentage of literate adults are incapable of extracting pertinent information from form contracts);
111. see also Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 HARV. L. REV. 1174, 1179 (1983) (stating that empirical studies show that consumers are unlikely to have read adhesion contracts before signing them, and even less likely to have understood what they read).
112. See, e.g., Ting v. AT&T, 182 F. Supp. 2d 902, 911-13 (N.D. Cal. 2002) (showing AT&T spent substantial resources determining how best to implement their binding arbitration provision so that it would not be opposed by consumers), aff'd in part, 319 F.3d 1126 (9th Cir. 2003).
113. See, e.g., Christine Jolls et al., A Behavioral Approach to Law and Economics, in BEHAVIORAL LAW & ECONOMICS 13, 39 (Cass Sunstein ed., 2000).
114. Cognitive psychologists Daniel Kahneman and Amos Tversky developed the widely accepted account of decisionmaking known as "prospect theory." Under this theory, people are often risk-seeking with respect to moderate- to high- probability losses, and risk-averse with respect to low-probability losses. See, e.g., Daniel Kahneman & Amos Tversky, Judgment Under Uncertainty: Heuristics and Biases, in JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES 3 (Daniel Kahneman et al. eds., 1982).
115. See Jon D. Hanson & Douglas A. Kysar, Taking Behavioralism Seriously: The Problem of Market Manipulation, 74 N.Y.U. L. REV. 630, 747 (1999) ("Manufacturers, to survive, must behave 'as if' they are attempting to manipulate consumer risk perceptions.") (emphasis added).
116. See, e.g., Schwartz, supra note 1, at 110; Sternlight, supra note 1, at 652.
117. See, e.g., Sosa v. Paulos, 924 P.2d 357 (Utah 1996) (requiring claim brought by patient against orthopedic surgeon to be heard by board-certified orthopedic surgeon).
118. See, e.g., Menkel-Meadow, supra note 1, at 35-37.
119. The "repeat player" concept was first introduced by Marc Galanter, in the context of litigation. See Marc Galanter, Why the "Haves" Come out Ahead: Speculations on the Limits of Legal Change, 9 LAW & SOC'Y REV. 95 (1974) (discussing multiple advantages of "repeat players" over "one shotters" in our legal system).
120. See Lisa B. Bingham, On Repeat Players, Adhesive Contracts, and the Use of Statistics in Judicial Review of Employment Arbitration Awards, 29 MCGEORGE L. REV. 223, 239 (1998) ("The repeat player effect is a cause for concern because in dispute resolution, sometimes the perception of fairness is as important as the reality. There is undeniably a repeat player effect in employment arbitration . . . ."); cf. Hill, supra note 1, at 814 (recognizing existence of repeat player effect but denying that it is due to "repeat arbitrators").
121. See Lisa B. Bingham, Control over Dispute-System Design and Mandatory Commercial Arbitration, LAW & CONTEMP. PROBS., Winter/Spring 2004, at 221 (explaining that by controlling dispute-system design, one party can impose transaction costs on the other, thereby dramatically altering the available settlement range or making it no longer cost-effective for the opposing party to bring a claim);
122. see also Marc Galanter, The Quality of Settlements, 1988 J. DISP. RESOL. 55, 70-72 (pointing out that when one party imposes high transaction costs on the other, it may encourage a settlement that would not otherwise have been desirable).
123. An extreme was the clause formerly used by Gateway Computers. By imposing the arbitration rules of the International Chamber of Commerce, this clause required consumers to pay thousands of dollars to resolve even a simple claim. See Jean R. Sternlight, Gateway Widens Doorway to Imposing Unfair Binding Arbitration on Consumers, FLA. B.J., Nov. 1997, at 8, 12. This clause was eventually struck down as unconscionable in Brower v. Gateway 2000, Inc., 676 N.Y.S.2d 569, 571-75 (App. Div. 1998).
124. See, e.g., Patterson v. ITT Consumer Fin. Corp., 18 Cal. Rptr. 2d 563, 565-67 (Ct. App. 1993) (refusing to enforce arbitration clause, imposed by financing organization on California consumers, that apparently required arbitration to be heard in Minneapolis).
125. See supra note 51.
126. For further discussion of the class action issue, see Jean R. Sternlight, As Mandatory Binding Arbitration Meets the Class Action, Will the Class Action Survive?, 42 WM. & MARY L. REV. 1 (2000); Sternlight & Jensen, supra note 8.
127. Demaine & Hensler, supra note 41, at 58-65.
128. See Sternlight & Jensen, supra note 8, at 85-88.
129. See, e.g., Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 617-18 (1997); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 161 (1974). See generally Sternlight, supra note 106, at 28-30.
130. See Sternlight & Jensen, supra note 8, at 88-90.
131. Id.
132. See, e.g., Ingle v. Circuit City Stores, Inc., 328 F.3d 1165, 1175 (9th Cir. 2003) (holding a provision in Circuit City's arbitration clause unconscionable because it shortened the applicable statute of limitations to one year); see also Christopher R. Drahozal, Federal Arbitration Act Preemption, 79 IND. L.J. 393, 411 (2002) 28noting that a growing number of courts have found arbitration clauses unconscionable due to substantive remedial restrictions, such as shortening the applicable statute of limitations).
133. For a general discussion of such clauses, see David S. Schwartz, Understanding Remedy-Stripping Arbitration Clauses: Validity, Arbitrability, and Preclusion Principles, 38 U.S.F. L. REV. 49 (2003).
134. See, e.g., Stirlen v. Supercuts, Inc., 60 Cal. Rptr. 2d 138, 142-43 (Ct. App. 1997) (quoting employment arbitration provision that, inter alia, precluded employee from recovering injunctive relief).
135. Ware, Consumer Arbitration as Exceptional Consumer Law, supra note 1, at 200 (noting that adhesion contracts are typical).
136. Id. at 209-13.
137. Ware does recognize the existence of government regulation, explaining that regulation renders certain rights "inalienable." Id. at 206-09.
138. See generally Sternlight, supra note 60; Sternlight, supra note 81.
139. Estreicher, supra note 7.
140. See id.; Lewis L. Maltby, Private Justice: Employment Arbitration and Civil Rights, 30 COLUM. HUM. RTS. L. REV. 29, 57 (1998).
141. It seems well recognized that the average recovery in arbitration is lower than the average recovery in litigation. See, e.g., Estreicher, supra note 7, at 565 (admitting that median compensation in employment cases is likely lower in arbitration than in litigation); Lewis L. Maltby, Employment Arbitration and Workplace Justice, 38 U.S.F. L. REV. 105, 114-15 (2003).
142. The disparity in non-civil rights employment cases may be smaller or nonexistent. See Theodore Eisenberg & Elizabeth Hill, Arbitration and Litigation of Employment Claims: An Empirical Comparison, 58 DISP. RESOL. J. 44 (2003/2004).
143. Also, note that one article in this Symposium takes a contrary position, urging that "there is no evidence that plaintiffs fare significantly better in litigation" than in arbitration. David Sherwyn et al., Assessing the Case for Employment Arbitration: A New Path for Empirical Research, 57 STAN. L. REV. 1557, 1578 (2005).
144. See Caroline E. Mayer, Win Some, Lose Rarely?: Arbitration Forum's Rulings Called One-Sided, WASH. POST, Mar. 1, 2000, at E1.
145. Id.
146. See, e.g., Sherwyn et al., supra note 7, at 119 ("Courts will only enforce arbitration policies that provide a fair process for the adjudication of employees' statutory rights.").
147. See, e.g., Doctor's Assocs. v. Casarotto, 517 U.S. 681, 687 (1996) (recognizing that states have the power to void arbitration clauses on common law grounds); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 33 (1991) ("Of course, courts should remain attuned to well-supported claims that the agreement to arbitrate resulted from the sort of fraud or overwhelming economic power that would provide grounds 'for the revocation of any contract.'" (quoting Mitsubishi Motors Corp. v. Soler Chrysler Plymouth, 473 U.S. 614, 627 (1985)).
148. See, e.g., Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 91 (2000) (refusing to void an arbitration clause based on mere "speculation" that arbitration would be excessively costly); Gilmer, 500 U.S. at 30 (noting that generalized attacks on arbitration are out of step with Court's strong endorsement of arbitration). But see Randolph, 531 U.S. at 92-96 (Ginsburg, J., dissenting) (urging that a company defending a clause should have the burden of proof to defend its fairness).
149. See F. Paul Bland, Jr., Is That Arbitration Clause Unconscionable? PROVE IT!, CONSUMER ADVOC. (Nat'l Ass'n of Consumer Advocates, Washington, D.C.), July-Aug. 2002, at 1 ("Fighting a mandatory arbitration clause is not for the lazy, the meek, or those exclusively inclined to broad abstractions. The key to success for a consumer advocate who wishes to avoid having her client forced into a particularly unfair arbitration system is both simple and difficult; one should put a powerful factual record before the court.").
150. Id.
151. David Schwartz has explained the differences between pre- and postdispute agreements to arbitrate in depth. See Schwartz, supra note 1, at 104-05, 110-21.
152. Estreicher, supra note 7, at 567.
153. Id. at 567-68.
154. While I have often heard defense-side lawyers argue that it is plaintiffs' lawyers, as opposed to plaintiffs, who oppose arbitration, this also does not make sense. Particularly to the extent that plaintiffs' counsel are working on a contingent fee basis, they should be very interested in a process that will resolve a matter quickly, so long as the result will not be egregiously unfair.
155. For an example of a plaintiffs'-side employment lawyer's defense of mediation, see Robert B. Fitzpatrick, Non-Binding Mediation of Employment Disputes: An ADR Method That Is Consistent with the American Promise of Fairness, ALI-ABA CLE COURSE OF STUDY, Feb. 25, 1998, at 1301.
156. I make this suggestion somewhat tongue in cheek. Politically, such a proposal would never be enacted in our current Congress. Constitutionally, companies could claim that such an imposition violated their jury trial rights. Yet, from a policy standpoint, I think the idea is quite defensible. If society has decided that arbitration can be a better dispute-resolution forum than litigation, and if plaintiffs are eager to resolve disputes in that forum, why should defendants be permitted to insist on litigation as a means of preventing plaintiffs' disputes from ever being resolved?
157. For a description of several programs or "schemes" for consumer arbitration sponsored by the British Chartered Institute of Arbitrators, see Chartered Inst. of Arbitrators, Welcome to the Chartered Institute of Arbitrators, at http://www.arbitrators.org (last visited Feb. 19, 2005).
158. Mayer, supra note 122 (discussing policy implemented in early 1998).
159. GEN. ACCOUNTING OFFICE, SECURITIES ARBITRATION: ACTIONS NEEDED TO ADDRESS PROBLEM OF UNPAID AWARDS 23 (2000) (reporting that investors prevailed 51% of the time between 1992 and 1996) [hereinafter 2000 GAO REPORT]; GEN. ACCOUNTING OFFICE, SECURITIES ARBITRATION: HOW INVESTORS FARE 7 (1992) (stating that approximately 60% of investors prevail); Public Customer Award Survey, SEC. ARB. COMMENTATOR, May 1996, at 1, 3 (stating that investors prevail 54% of the time). See generally Richard A. Voytas, Jr., Empirical Evidence of Worsening Conditions for the Investor in Securities Arbitration, SEC. ARB. COMMENTATOR, June 2002, at 1, 5 (showing decline in investors' rate of success from 1992 to 2000).
160. Several recent studies show that investors who prevail win approximately twenty-five percent of the amount they sought. See, e.g., Voytas, supra note 137, at 5. However, it is also true that investors may be claiming more than the amount to which they are really entitled.
161. See 2000 GAO REPORT, supra note 137, for an extensive discussion of this problem.
162. See Voytas, supra note 137, at 7 (showing represented investors did substantially better than nonrepresented investors).
163. See id. at 6 (showing that brokers who are repeat players did significantly better than non-repeat player brokers both in defending themselves against investor claims and also in bringing counterclaims against investors).
164. See Lisa B. Bingham, Self-Determination in Dispute System Design and Employment Arbitration, 56 U. MIAMI L. REV. 873, 893-97 (2002).
165. Eisenberg & Hill, supra note 121, at 44-55; see also Estreicher et al., supra note 121 (summarizing prior empirical studies on employment arbitration and concluding that while arbitration is clearly faster than litigation, more research needs to be done regarding plaintiffs' relative rates of success and damages awards in litigation and arbitration). In this author's view, the Estreicher et al. article oversimplifies the limited information that can be taken from existing studies on employment arbitration by failing adequately to distinguish between nonstatutory claims of highly paid employees and statutory discrimination claims often brought by lower-pay employees. The fact that arbitration may prove to be a fair venue for the former claims says little or nothing about the adequacy of arbitration for the latter set of claims.
166. CAL. CIV. PROC. CODE § 1281.96 (West Supp. 2005).
167. The AAA data is available at Am. Arbitration Ass'n, CA Provider Organization Report, at http://www.adr.org/sp.asp?id=22442 (last visited Mar. 19, 2005).
168. The JAMS data is available at JAMS, Consumer Arbitration - JAMS Disclosures for California Consumer Arbitrations, at http://www.jamsadr.com/arbitration/consumer_arbitration_data.asp (last visited Mar. 19, 2005).
169. The Kaiser data is available at Office of the Independent Administrator, Disclosures by the Office of the Independent Administrator, at http://www.oia-kaiserarb.com/oia/Disclosures.htm (last visited Mar. 19, 2005).
170. The Alternative Resolution Centers data is available at Alternative Resolution Ctrs., Consumer Arbitration Reporting, at http://www.arc4adr.com/car.html (last visited Mar. 19, 2005).
171. Another provider, the National Arbitration Forum (NAF), is being sued by consumer groups for its failure to provide information required by California law in Corbett v. National Arbitration Forum, No. 04-431430 (Cal. Super. Ct. filed May 17, 2004). Press Release, Trial Lawyers for Public Justice, TLPJ Charges National Arbitration Forum with Violating CA Disclosure Law (May 17, 2004), available at http://www.tlpj.org/pr/naf_051704.htm. However, NAF has made some data available on its website.
172. See Nat'l Arbitration Forum, Consumer ADR Proceedings in California, at http://www.arbitration-forum.com/focus/consumers/ca_consumer.asp (last visited Apr. 4, 2005).
173. See, e.g., William M. Landes & Richard A. Posner, Adjudication as Private Good, 8 J. LEGAL STUD. 235, 235-40, 261 (1979) (arguing, from a law and economics perspective, that adjudication is a public good in that it not only resolves disputes but also creates rules of law needed to promote social compliance therewith, and that the public good of precedent is likely to be underproduced in the private dispute resolution market);
174. Geraldine Szott Moohr, Arbitration and the Goals of Employment Discrimination Law, 56 WASH. & LEE L. REV. 395, 426-27 (1999) (emphasizing that, in contrast to arbitration, civil litigation not only resolves disputes but also "generates specific and general deterrence, educates the public, creates precedent, develops uniform law, and forms public values");
175. Clyde W. Summers, Mandatory Arbitration: Privatizing Public Rights, Compelling the Unwilling to Arbitrate, 6 U. PA. J. LAB. & EMP. L. 685, 703-11 (2004) (critiquing mandatory arbitration in part because it erodes public knowledge and precedent);
176. see also Deborah R. Hensler, Suppose It's Not True: Challenging Mediation Ideology, 2002 J. DISP. RESOL. 81, 98 (suggesting that by deemphasizing courts' role in resolving disputes through litigation, "we run the risk of finding ourselves without an institution that has the political legitimacy to make fact- and law-based decisions when we need them");
177. Richard C. Reuben, Democracy and Dispute Resolution: The Problem of Arbitration, LAW & CONTEMP. PROBS., Winter/Spring 2004, at 279 (arguing that
178. See Sternlight, supra note 106.
179. Economists explain that a public good exhibits two closely related characteristics: (1) consumption is nonrivalrous, meaning that consumption of the good by one person does not reduce the amount available for any other consumer; and (2) it is nonexcludable, meaning that once the good has been provided to some consumers, it is very difficult/prohibitively expensive to exclude other (nonpaying) consumers from consuming it. The presence of a public good causes market failure, in that the market will undersupply the good. Classic examples include national defense and research on a technology for which patent protection is not perfect. See ROBERT S. PINDYCK & DANIEL L. RUNINFELD, MICROECONOMICS 609, 665-71 (6th ed. 2005).
180. David Luban, Settlements and the Erosion of the Public Realm, 83 GEO. L.J. 2619, 2622 (1995) (suggesting that settlements, as well as arbitration, will underproduce public goods, including not only rules and precedents but also publication of facts and fostering of faith in the judicial system).
181. Id. at 2625.
182. Id.
183. Owen M. Fiss, Against Settlement, 93 YALE L.J. 1073, 1089 (1984) (emphasizing that "[c]ivil litigation is an institutional arrangement for using state power to bring a recalcitrant reality closer to our chosen ideals");
184. Owen M. Fiss, The Forms of Justice, 93 HARV. L. REV. 1, 29-44 (1979) (emphasizing the importance of judges' role in engaging in public factfinding and imposing regulatory obligations).
185. See Judith Resnik, Failing Faith: Adjudicatory Procedure in Decline, 53 U. CHI. L. REV. 494 (1986) (examining emerging hostility toward adjudication and urging preservation of the accomplishments of the Federal Rules of Civil Procedure);
186. Judith Resnik, For Owen M. Fiss: Some Reflections on the Triumph and the Death of Adjudication, 58 U. MIAMI L. REV. 173, 200 (2003) (arguing that the last century has seen the triumph of adjudication but also its demise, through growth of ADR and administrative process, and that "[a]djudication's supporters need to return to their claims for adjudication and ask how adjudication can be refashioned to deliver its promises more broadly").
187. Luban, supra note 149, at 2620.
188. Id. at 2662.
189. Id. at 2648-62.
190. Carrie Menkel-Meadow, Whose Dispute Is It Anyway?: A Philosophical and Democratic Defense of Settlement (In Some Cases), 83 GEO. L.J. 2663, 2669-70 (1995).
191. Id. at 2671.
192. Id. at 2672-75.
193. Moohr, supra note 146, at 399.
194. Id. at 426-39.
195. Reuben, supra note 146.
196. Id. at 295-97.
197. Id. at 298-303.
198. It is not impossible to envision an arbitration that would be open to the public. Indeed, some arbitrations involving public agencies have been public. However, the vast majority of arbitrations are handled privately, and such privacy is vaunted as one of the major advantages of arbitration over litigation. See, e.g., Warren E. Burger, Using Arbitration to Achieve Justice, ARB. J., Dec. 1985, at 3, 6 (citing privacy as one of the significant advantages of arbitration).
199. Similarly, some few arbitrations do lead to decisions that are publicly available to a greater or lesser degree. Some labor arbitration decisions are published and even made available through online databases. Also, securities arbitration decisions are filed with public agencies and sometimes available online as well. However, the securities arbitration decisions usually contain too little analysis to be useful as precedent, and the labor arbitration decisions are simply an exception to the norm of private unpublished arbitration decisions.
200. See Sternlight, supra note 60; Sternlight, supra note 56; Sternlight, supra note 81.
201. See Sternlight, supra note 106.
202. See Jean R. Sternlight, In Search of the Best Procedure for Enforcing Employment Discrimination Laws: A Comparative Analysis, 78 TUL. L. REV. 1401 (2004).
203. See, e.g., JOHN RAWLS, A THEORY OF JUSTICE (1971) (setting out a theory of political justice based on a "veil of ignorance");
204. JOHN RAWLS, POLITICAL LIBERALISM (1993) (critiquing own prior views);
205. JOHN RAWLS, JUSTICE AS FAIRNESS: A RESTATEMENT (Erin Kelly ed., 2001) (reformulating earlier book based on later insights).
206. See Sternlight, supra note 169.
207. Jean R. Sternlight, ADR Is Here: Preliminary Reflections on Where It Fits in a System of Justice, 3 NEV. L.J. 289 (2003).
208. Much of the key work in this area has been done by Laurens Walker, John Thibaut, E. Allan Lind, Tom R. Tyler, and their students or former students. See, e.g., E. ALLAN LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE (1988);
209. E. Allan Lind et al., Individual and Corporate Dispute Resolution: Using Procedural Fairness as a Decision Heuristic, 38 ADMIN. SCI. Q. 224, 247 (1993);
210. Tom R. Tyler, Psychological Models of the Justice Motive: Antecedents of Distributive and Procedural Justice, 67 J. PERSONALITY & SOC. PSYCHOL. 850 (1994);
211. Tom R. Tyler & E. Allan Lind, Procedural Justice, in HANDBOOK OF JUSTICE RESEARCH IN LAW 65 (Joseph Sanders & V. Lee Hamilton eds., 2001);
212. Laurens Walker et al., Reactions of Participants and Observers to Modes of Adjudication, 4 J. APP. SOC. PSYCHOL. 295 (1974).
213. See Nancy A. Welsh, Making Deals in Court-Connected Mediation: What's Justice Got to Do With It?, 79 WASH. U. L.Q. 787, 860 (2001) [hereinafter Welsh, Making Deals] (arguing that court-connected third-party processes "should and must be judged against the standard of procedural justice");
214. see also Nancy A. Welsh, Disputants' Decision Control in Court-Connected Mediation: A Hollow Promise Without Procedural Justice, 2002 J. DISP. RESOL. 179, 180 [hereinafter Welsh, Hollow Promise];
215. Nancy A. Welsh, The Thinning Vision of Self-Determination in Court-Connected Mediation: The Inevitable Price of Institutionalization?, 6 HARV. NEGOT. L. REV. 1, 78-92 (2001) [hereinafter Welsh, Thinning Vision] (suggesting steps that should be taken to ensure that mediation enhances rather than diminishes self-determination, a component asserted by procedural justice studies to be imperative to the perception of a fair process).
216. Welsh, Making Deals, supra note 174, at 820; see also Hensler, supra note 146, at 84-95 (drawing on procedural justice literature to suggest that the move to use mandatory court-connected mediation has been based on a false theory that litigants prefer nonadversarial methods of dispute resolution, when in actuality litigants prefer to have their disputes resolved on the basis of fact and law by a neutral third party).
217. Sternlight, supra note 172, at 300.
218. For example, James Wall and Ronda Callister have described the Ho'oponopono process, which they call "an integral and ancient part of Polynesian culture," and which later migrated to Hawaii. James A. Wall, Jr. & Ronda Roberts Callister, Ho'oponopono: Some Lessons from Hawaiian Mediation, 11 NEGOTIATION J. 45, 46 (1995).
219. This process, used to resolve all manner of interpersonal and what would elsewhere be criminal matters, typically consists of twelve steps ultimately geared to untangle the disputants and make things right between them. Id. at 47-52. Similarly, in describing the Navajo system of justice, Robert Yazzie explains that concepts of justice are closely related to concepts of healing and that when Navajo describe law, they say "life comes from it." Robert Yazzie, "Life Comes From It": Navajo Justice Concepts, 1994 N.M. L. REV. 175, 177-87 (explaining that the Navajo system of justice can best be described as "horizontal," in contrast to the Western "vertical" system of justice; where the vertical system relies on hierarchy and power to resolve disputes, the horizontal is instead best symbolized by the circle, in which no authority has to determine what is true, and the goal is healing and restoration rather than determining right and wrong). Through a process of talking, and community, the Navajo seek to work things out as a community. Id. at 180-87.
220. See, e.g., Richard L. Abel, Introduction to 2 THE POLITICS OF INFORMAL JUSTICE (Richard L. Abel ed., 1982) (arguing that the characteristics of informal justice in precapitalist societies demonstrate why comparable institutions cannot be created under Western capitalism, in that the precapitalist society features a social structure in which relationships are multiplex and continuous, in which residential mobility is limited, and in which reputation is highly prized and easily lost).
221. See, e.g., Laura Nader, Controlling Processes in the Practice of Law: Hierarchy and Pacification in the Movement to Re-Form Dispute Ideology, 9 OHIO ST. J. ON DISP. RESOL. 1 (1993).
222. Sternlight, supra note 172, at 302.
223. See supra Part III.A.
224. Sternlight, supra note 169, at 1482-89.
225. Id. at 1490-99.
226. Id. at 1495-98.
227. Welsh, Making Deals, supra note 174, at 792; see also Welsh, Hollow Promise, supra note 174; Welsh, Thinning Vision, supra note 174. But see Hensler, supra note 146, at 94 (arguing that litigation is better than mediation in meeting procedural justice concerns).
228. Indeed, Welsh recognizes that many court-connected mediation programs do not meet these concerns.
229. Yazzie, supra note 177.
230. Id. at 180-87.
231. Lisa Bingham raises this concern from a somewhat different perspective when she discusses the macrodesign issues relevant to developing dispute resolution processes. A process that is by nature noncoercive, such as mediation, becomes more coercive if imposed involuntarily. Bingham, supra note 102. The phenomenon of "reactive devaluation" offers a sort of analogy. Psychologist Lee Ross and others have observed that people tend to devalue proposals that are authored by an adversary. Lee Ross, Reactive Devaluation in Negotiation and Conflict Resolution, in BARRIERS TO CONFLICT RESOLUTION 26 (Kenneth J. Arrow et al. eds., 1995).
232. Here, it is natural that disputants would think less of a procedural process that is mandated by an adversary. Cf. Stephan Landsman, ADR and the Cost of Compulsion, 57 STAN. L. REV. 1593, 1623 (2005) (critiquing the mandatory imposition of ADR processes, and observing that forced ADR "is deeply disturbing to many litigants").
233. See Sternlight, supra note 106.
234. Menkel-Meadow, supra note 157, at 2684.
235. That is, Congress might send all disputes to a process that looks like what we call administrative law or what some other countries call "arbitration."
236. Of course, the repeat player phenomenon, discussed supra notes 100-01 and accompanying text, might still give certain disputants an edge in picking their decisionmakers.