Private Law Theory

Over the past thirty years, mandatory arbitration clauses have proliferated in employment contracts, preventing more than sixty million American workers from vindicating their civil rights in a courtroom and forcing them to pursue legal claims in private, confidential forums. Nearly twenty-five million workers are also subject to waivers of class or collective actions, rendering many claims, especially low-value wage-and-hour claims, economically irrational. Proponents portray arbitration as merely a shift in forum that promotes more efficient dispute resolution. But the claim-suppressive effects of forced arbitration have eliminated up to ninety-eight percent of all employment claims and virtually insulated employers from liability altogether …

The Enforcement Opportunity: From Mass Arbitration to Mass Organizing 136 Harvard Law Review 1652 (2023).