When Forum Determines Rights

Abstract

In this century, the U.S. Supreme Court has issued a series of decisions forcing plaintiffs in all types of cases out of the courthouse and into private arbitration, a form of alternative dispute resolution. These decisions rely on the Court’s view that, so long as plaintiffs can bring their legal claims in any forum—whether judicial or arbitral—plaintiffs retain the ability to enforce their rights. The Court’s rationale that forum is entirely irrelevant to the substance of legal claims is false. In fact, the Court’s new arbitration jurisprudence reinforces structural inequalities, including inequalities based on class, race, and gender. This chapter shows how this jurisprudence has thwarted the very statutory framework that was erected to redress systemic and structural discrimination—the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and the Americans with Disabilities Act of 1991. Forced arbitration imposes two requirements that dramatically limit the reach of these federal civil rights statutes: confidentiality and individuality. These defining characteristics of arbitration benefit well-resourced defendants, and they come at the expense of civil rights plaintiffs and civil rights laws.