The “arbitration revolution” has diminished access to justice for
millions of people, allowing American corporations to secure significant
insulation from collective challenges in both judicial and arbitral forums.
Although currently identified damages are immense, some scholars have
recently described proposals to undo the revolution as wishful thinking
in the current political climate. This Article acknowledges the political
difficulty but seeks to uncover the roots of the problem to re-open a path
for a change.
Offering an analysis of the 2019 United States Supreme Court
decision in Lamps Plus, Inc. v. Varela, this Article demonstrates that the
“revolution” has been driven not by the oft-declared policy of “favoring
arbitration,” but by a premeditated effort to undermine collectivity. This
legal hostility towards collective actions, this Article shows, has been
part of a broader transformation: the rise to dominance of neoliberalism
and the resulting creation of a corporatized political economy. It thus
reconceptualizes the arbitration revolution as a process of separating
collective actors, one that has been inspired by neoliberal theorists,
executed and funded by organized corporate interests, and embraced by
the Supreme Court.
This new framing highlights previously unrecognized harm of the
arbitration revolution: it leaves prospective claimants feeling isolated
from their peers and abandoned by their state, inducing pervasive
feelings of powerlessness. Having identified this affective outcome, this
Article shows how the emotional consequences of the revolution further
operate to suppress resistance and invoke resignation. These behavioral
tendencies are not unintended consequences; instead, they are produced
by a calculated effort to foster neoliberal hegemony and corporate control
by cultivating the passivity of ordinary citizens.
This Article ends with a warning that those who feel powerless and
resigned about the protection of their legal rights may feel similarly
indisposed to engage in other forms of democratic citizenship. By
offering a novel understanding of how the arbitration revolution vitiates collectivity and threatens democracy, this Article aims to reignite efforts
to undo the revolution and reauthorize citizens to act collectively.