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Ok, so that’s the problem. Where’s the fix? Well, it’s pretty simple. Congress can pass a law saying that forced arbitration doesn’t apply to civil rights, antitrust, employment, or consumer rights cases, unless both parties choose after the dispute occurs. You might not think that’s possible, but such a law actually passed the House of Representatives 2022, pushed by Representative Hank Johnson and Senator Richard Blumenthal. It didn’t, however, get through the Senate.
And there’s a greater possibility of this happening than you might think. Starting in the mid-2010s, there was increasing interest in corporate dominance of the courts. The New York Times did a series in 2015, calling arbitration a “far-reaching power play orchestrated by American corporations.” Under the final years of Obama and into the Biden administration, various government agencies acted.
The USDA sought to limit arbitration clauses from hitting poultry farmers, the CFPB tried to ban arbitration agreements in financial products, the DOT tried to stop airlines from using them against passengers, and so on and so forth. Many of these were undone by the Trump administration,...