Article Title

Contracting (Out) Rights


union, gilmer, non-waivability, gardner-denver, barrentine, mcdonald


There is no question that litigation is expensive, but we remain puzzled as to why the solution to this problem should be arbitration. All the reasons arbitration is cheaper than litigation cut against the rights-holder or against the enforcement of laws. Commentators who argue that arbitration may be the only or best option for some rights-holders implicitly accept a deeply cynical conception of who is entitled to enjoy full remedies for a deprivation of rights. If the problem is a lack of counsel, that lack requires attention, as giving up on courts for certain segments of society is not a responsible solution. Mandatory arbitration provisions also block access to courts even for those who might be in the position to pursue litigation. In this way, enforcement of arbitration provisions implies resigning ourselves to the idea that judicial enforcement of the rule of law is just too expensive for society as a whole to afford. We think this sacrifice is too great.



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