Divided and Conquered: The Neoliberal Roots and Emotional Consequences of the Arbitration Revolution

52 Pages Posted: 22 Oct 2019

Date Written: October 12, 2019

Abstract

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 Supreme Court decision in Lamps Plus Inc. v. Varela, the 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, the 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 re-conceptualizes 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, the Article shows how it operates to suppress resistance and invoke resignation. These behavioral tendencies are not unintended consequences; instead, they are produced by a calculated effort to protect neoliberal hegemony and corporate control by cultivating the passivity of ordinary citizens.

The 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, the Article aims to reignite efforts to undo the revolution and re-authorize citizens to act collectively.

Keywords: Arbitration, Neoliberalism, Emotions, Supreme Court, Powerlessness, Collective Actions, Federalist Society, contra proferentem, Lamps Plus, Koch Brothers, James Buchanan

JEL Classification: K12, K31, K41, N32, P46, P48, Z13, Z18

Suggested Citation

Keren, Hila, Divided and Conquered: The Neoliberal Roots and Emotional Consequences of the Arbitration Revolution (October 12, 2019). Florida Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3468939

Hila Keren (Contact Author)

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States

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