The cumulative effect of the Supreme Court’s jurisprudence on arbitration has been to produce an unconstitutional system that undermines both the legitimacy of arbitration and the functions of the court.
She’ll get no argument from me on that point.
But I don’t think the current system will last. I believe that the vast majority of judges outside the U.S. Supreme Court bubble agree that pre-dispute arbitration clauses should not be constitutional. U.S. Supreme Court justices are so insulated from the real world that they probably don’t understand how impacts everyday transactions for regular people.
As for consumers who are subject to pre-dispute arbitration clauses, I don’t think I’ve ever met one non-lawyer who who understood that they were signing away their right to file a lawsuit.
Normal people don’t know what arbitration is. The typical response when it’s explained to them is “uh?” When it sinks in, they don’t like it.
Enforcement of pre-dispute arbitration clauses in consumer contracts is the imposition and enforcement of a crooked system. Is that sustainable long term? I don’t think so.
But it’s not going to matter for lawyers in my generation. We are stuck practicing in a world where many viable claims are made non-viable by arbitration clauses. This results in less work for litigation attorneys on both sides of the ‘V.’
One day, Congress or the U.S. Supreme Court will end the current arbitration nonsense. It will be good for business for lawyers. Sadly, I doubt I will still be practicing law when it happens.