In the Shadow of Litigation: Arbitration and Medical Malpractice Reform

Abstract

Abstract Alongside the dramatic growth in the use of mandatory, binding arbitration in the United States, proposals to use arbitration in lieu of medical malpractice litigation have proliferated as a mechanism for providing a more efficient and less costly way to resolve disputes. However, these proposals have largely been divorced from an understanding of the history, politics, and law of arbitration, which comes with a significant cost. Although liberals developed arbitration with the goal of ensuring access to justice for those who struggled to find it in traditional courts, conservatives (both in Congress and in the private sector) began to promote it in the latter part of the 20th century as a way to keep what they considered “lesser” cases out of court and to better protect corporate and other powerful institutional defendants from litigation. This article examines this transition toward the use of private, mandatory, and binding arbitration through three periods of institutional change: partisan conversion, judicialization, and privatization. It argues that it is essential to situate malpractice reform proposals in the history, politics, and law of arbitration in practice, where partisan efforts have privatized arbitration with significant effects for equality under the law.