The Paradox of Access Justice, And Its Application to Mandatory Arbitration
63 Pages Posted: 6 Jan 2013 Last revised: 6 Jul 2017
Date Written: January 1, 2013
Access justice is one of the most appealing and least contentious regulatory techniques in law’s repertoire. It aspires to give people equal opportunity to utilize certain primary goods, and it does so by assuring openness—that access to these goods is not allocated by markets and is not tilted in favor of wealth or privilege. But access justice often fails to meet its egalitarian aspirations, because groups that are not the intended targets of the intervention deploy access and its benefits dispropor- tionately. Paradoxically, access justice often benefits various elites while paid for directly by taxpayers and indirectly by weaker groups. This Article brings to light this unintended and regressive cross-subsidy created by policies of access to infor- mation, compensation, insurance, accommodations, and more. It then examines in detail a specific contemporary access justice paradox—consumers’ access to courts and the impact of mandatory arbitration agreements that limit such access. This Article demonstrates that access to courts is a franchise of the elite and of little value to weak consumers. Nevertheless, it considers whether contractual waivers of access to courts hurt weak consumers by foreclosing effective access through class-action representatives. This concern has theoretical merit, but it, too, is limited in ways that are often unappreciated.
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