The hardest won rights are often the easiest to lose, and in the thickets of fine print surrounding every labor contract or credit card bill, all it takes is one careless signature to get roped into a deal with the devil—before you know it, you’ve already compromised your right to a fair trial or to speak out against an abusive boss.
Despite American society’s reputation for litigiousness, there are as many things to sue over as there are ways to escape a lawsuit. In February, a coalition of lawmakers led by Senators Patrick Leahy and Al Franken introduced legislation to strengthen worker and consumer protections against binding arbitration—the obscure legal mechanism through which countless people have accidentally compromised their rights, by ensuring that a prospective future dispute with a company gets tracked into a separate legal system rigged with corporate impunity.
The explosion of forced arbitration agreements has enabled contract law to do what democracy often makes difficult: getting people to effectively sign away, through a voluntary agreement, certain legal protections that they may not even know they had—until they need them.
According to an analysis by Economic Policy Institute (EPI), the civil court has effectively become privatized since the 1980s. “By delegating dispute resolution to arbitration,” the report states, “the Court now permits corporations to write the rules that will govern their relationships with their workers and customers.”
Within this pre-scripted alternative court system, the final verdict in typical civil legal disputes—whether they involve a boss refusing to promote female employees, or getting defrauded by a predatory student loan provider, or being unfairly denied overtime pay at work—can be easily manipulated in an opaque extrajudicial arena.
Workers may find the laws that are supposed to protect them from discrimination and exploitation may no longer apply, and they can only bring a grievance against their boss to a private “third party” arbitrator instead of a neutral judge.
Or you could just be prevented from seeking any legal recourse altogether, because it’s no longer financially feasible. When a binding arbitration agreement bars a worker or consumer from filing a class-action suit in cases involving large numbers of claimants, individuals may find it prohibitively costly to undergo litigation on their own.