The New York Times is running a series of articles about the fact that the giant corporations in this country have successfully opted out of the civil justice system by making consent to arbitration a part of every contract. I recently bought a hard drive, and saw some fine print to the effect that merely by buying the hard drive I was agreeing to arbitrate any claims I might have against the maker. I don’t know if that dodge will stand up, but the provisions in credit card contracts have been proof against all attack. Arbitration requirements constitute a “never go to jail” card for giant corporations, because it is usually too expensive to go after them for the amount of money involved in a typical claim (class actions, of course, strictly forbidden) and a waste of time to do so because the arbitrators are in the pockets of the corporations.
The Times should be commended for publishing this series. Who knows, Congress might even do something about it, though the likelihood is that if the present Congress does anything, it will make it easier for the corporations to demand arbitration. It is also possible that the Consumer Financial Protection Bureau could step in, at least with regard to credit card contracts, but it’s almost a given that the Roberts court would set any such action aside.
There are a number of things that go on in the public sphere about which everyone knows the truth, but around which grow, at least in certain quarters, an unspoken agreement to pretend to believe a false but convenient narrative. The recent Benghazi hearings are a good though trivial example. Everyone knew that the hearings were a politically motivated hatchet job, but until forced to do so, the media happily pretended that it was a serious investigation. The movement to arbitration is supported by a similar unspoken agreement between giant corporations and hard right judges. The corporations will insist that the arbitration system is far better for consumers. Everyone knows they are lying, including the judges who hear these cases, but the judges of the Scalia ilk (and they are all that matter these days) will repeat the lie to justify stripping Americans of their rights to legal recourse in an imperfect, but not totally rigged judicial system.
But, while it’s great that the Times published this article, it’s not news. The destruction of the American system of justice has been common knowledge in the legal profession and has been, I know, the subject of multiple left wing blog posts over the years. It’s great that the Times is on the case, but the fact is that the article has uncovered something that was hiding in plain sight for years.
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