Combating Structural Bias in Dispute System Designs That Use Arbitration: Transparency, the Universal Sanitizer

Amsler, L. Blomgren (2014). Combating Structural Bias in Dispute System Designs that Use Arbitration: Transparency, the Universal Sanitizer, 6 YEARBOOK ON ARBITRATION & MEDIATION 32 (2014).

24 Pages Posted: 13 Aug 2014

See all articles by Lisa Blomgren Amsler (formerly Bingham)

Lisa Blomgren Amsler (formerly Bingham)

Indiana University Bloomington - Paul H. O'Neill School of Public and Environmental Affairs; University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: June 1, 2014

Abstract

Employers and businesses adopt adhesive arbitration clauses as a means to manage the risk of litigation and perceived “runaway” jury awards. Mandatory or adhesive arbitration describes the power of an economically stronger repeat player to impose an adhesive binding arbitration clause on the weaker, usually one-shot, player. In this brave new world, how can we combat structural bias built into dispute system designs (“DSDs”) that include mandatory or adhesive arbitration clauses? This essay will explore transparency and disclosure as means to that end. First, it will discuss institutional analysis and DSD to examine indicia of structural bias. Second, it will rely on other excellent scholarship to review the current state of the law and instead focus on the relative lack of remedies available to employees and consumers from the courts, Congress, or the executive branch. Third, it examines scholarly proposals to address the gap in remedies. Finally, it explores the various ways employees and consumers might engage in self-help to promote transparency as a means to accountability for biased arbitration systems.

Keywords: arbitration, structural bias, transparency

JEL Classification: D74, D82, J52

Suggested Citation

Amsler, Lisa Blomgren, Combating Structural Bias in Dispute System Designs That Use Arbitration: Transparency, the Universal Sanitizer (June 1, 2014). Amsler, L. Blomgren (2014). Combating Structural Bias in Dispute System Designs that Use Arbitration: Transparency, the Universal Sanitizer, 6 YEARBOOK ON ARBITRATION & MEDIATION 32 (2014)., Available at SSRN: https://ssrn.com/abstract=2479014

Lisa Blomgren Amsler (Contact Author)

Indiana University Bloomington - Paul H. O'Neill School of Public and Environmental Affairs ( email )

1315 East Tenth Street
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Bloomington, IN 47405
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812-855-1465 (Phone)
812-855-7802 (Fax)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

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Box 451003
Las Vegas, NV 89154
United States

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