This is obviously problematic in cases where there is a significant power discrepancy (employee-employer, producer-consumer etc), or where arbitrators are paid by a single party. Despite this, US suspreme court has held that they are still valid [2]

[1] https://en.wikipedia.org/wiki/Federal_Arbitration_Act [2] https://en.wikipedia.org/wiki/Epic_Systems_Corp._v._Lewis

When I think of the word "contract" I don't picture two companies with a meeting of the minds, on equal footing, settling something. Instead I associate the word with a hammer that a powerful company uses to smash a relatively powerless individual--because that's the only kind of contract 99% of us will ever be party to.

The problem is the disparity between the parties involved when it's a company and an individual.

Forced arbitration also bans class action lawsuits, which weakens individuals even further.

I think those conditions would effectively exclude it from consumer contracts while permitting it when both parties understand and want it.

That’s really the crux of it, isn’t it? In general it is entirely common in a contract situation for one party to care so much about a particular provision that it would rather not contract at all than contract without that provision. Generally the better the best alternative to a negotiatied agreement (BANTA) for a party the more likely it is to be willing to walk away over a particular provision.

I think the root of the perceived unfairness here is that people think a take it or leave it attitude is not fair. In a Dunbar size world, maybe it isn’t. But you can’t run a company with 100k individually negotiatied employment contracts.

I think the root of the perceived unfairness is that forced arbitration concerns using a power disparity to force renunciation by default of fundamental political rights (access to the court system) to the benefit of the powerful party.

The take it or leave it attitude is fine, but only when the parties are on fairly equal footing.

Instead the crux then seems to be "fundamental political rights". I guess I don't see it that way. When you go into court to sue the government, or even in tort against a private party, sure. But in a contractual relationship the right and reason to go to court flows directly from the contract. The fundamental right here is the parties' ability to form an enforceable agreement under terms they agree to. (I should note as a matter of rhetorical fairness that the New Deal Court discarded the notion of "liberty of contract", but as a political philosophy matter I still think it is crystallizes an important notion of freedom.)

I didn't specific it earlier, but I think restrictions on binding arbitration would also extend to contractural prohibitions on class action lawsuits, since the two typically go hand in hand.

It doesn't eliminate the power disparity, but eliminates new mechanisms that are used to increase it as well as protecting the mechanisms that have traditionally been used to protect against it.

> The fundamental right here is the parties' ability to form an enforceable agreement under terms they agree to.

I disagree, there are other rights that are at least as important that must be balanced against that.

Also "terms they agree to" is a slippery concept, and it's arguable it doesn't apply to 99% of the contracts "agreed to" today (think click-throughs and other walls of tiny text, which are typically neither actively negotiated, read, nor fully understood by one party as an essential matter of practicality).

So, like, if you couldn’t have over 2 + 4*log_2(your number of employees) cases where people you either currently employ, or used to employ and are still bound by that clause of their employment contract, are subject to forced arbitration.

(Or some other function. Sqrt might be better than log)

This would still provide some of (hopefully most of) the benefit of having the arbitration, while preventing it from being common or typical amongst the employees, as the proportion of employees would have to be asymptotically zero as number of employees increases.

That may have the unintended side effect of employers including _even more_ onerous impositions which they anticipate will be negotiated away, making the negotiation "active" as far as the parties are concerned but with the same outcome.

If it were entirely optional, what employee _would_ opt in to forced arbitration?

Thinking more about it, I would imagine employers would offer small incentives in exchange for the forced arbitration clause (like more paid time off, etc) but at least in that case it would be a trade-off made by the employee.

For me this is the biggest key issue, because it's an attempt to nullify the higher-level mechanism which ought to be preventing abuse.

We're getting there: https://www.fisherphillips.com/resources-alerts-kentucky-bec...

States still hold a lot of chips when it comes to rulemaking over what is and isn't allowed w/rt employment types and agreements. It's a bit murky though, when it comes to Federal power weighing in on employment contracts at the state level (outside of things you've come to expect like protected classes/EEOC, workplace safety, and accomodations/accessibility for workers with physical impairments).

Forced arbitration is a very good thing for the employers. It's not a good thing for the employees, who are effectively signing away a huge swath of rights.

But as I say elsewhere, this doesn't necessarily apply to employer/employee contracts where one side might not even have read the full contract, much less have been able to negotiate its clauses.

If the courts are also fair then there's no threat involved. Plus, what to do if the arbiter isn't fair?

In practice, this isn't how life works, but that's the theoretical reason. The real reason is that pro-corporate politicians hold power and corporations want arbitration agreements to be legal, largely because courts are more expensive, bad PR, and are less likely to work out in their favor.

The US government was "of the people, by the people, and for the people." Now it is of/by/for big corporations.

Forced arbitration is a whole-scale privatization of the justice system. Americans are actively being deprived of their right to justice, see: https://www.nytimes.com/2015/11/02/business/dealbook/in-arbi...

You are agreeing. As an adult, the choice to agree or not agree to conditions of a private transaction seem to be a fundamental liberty. If people didn’t agree and it affected recruitment, then companies would respond accordingly. Also, without arbitration, conceivably that could result in a lower offered salary to offset the risk of litigation. Given that the vast majority of employees never care about suing, the higher salary is a better outcome most of the time. Banning forced arbitration is necessarily going to increase employee costs to a company, which means less money to pay people much in the same way higher health costs affect salaries as well. I don’t agree with forced arbitration, but making it illegal disrupts the freedom of employees and employers to engage in agreements how they see fit. Without arbitration, you get a lower salary, all else being equal, which is essentially a form of insurance against the possibility that you might sue. Some people might be ok with that, but that choice should be between the employee and the employer; it isn’t government’s place to get involved.

1. There's already plenty of stuff you're not allowed to sign away, no matter how much more "free" being able to do so might make you. I certainly bristle daily at how un-free I am not being able to sign myself into slavery.

2. OK fine. So we ban corporations from entering into forced arbitration contracts with individuals. You still can. With your neighbor or whoever. You can try with a corporation, but will find that they aren't permitted to. Since we collectively via the power of government conjure corporations from the aether, eff 'em.

Even if you willingly accept the forced arbitration clause you still may not get justice because the company doesn't want to pay for it!

A fundamental liberty that eventually leads to all corporations offering you the same choice. Accept it, or go bankrupt and homeless. Or were you able to negotiate terms with you bank, ISP, smartphone vendor, or Microsoft if you're on windows?

Laws restricting which contracts are legal, are just a form of collective bargaining of the voters. Or if you prefer, laws specifying which contracts will be enforced by the State. You're free to try and enforce the rest on your own, like a true libertarian.

Lets say you are a stanch Democrat, a Republican candidate runs with Republican policies plus a plan to end forced arbitration. Do you vote for him? For most voters the answer appears to be no.

Small government conservatives vote for large government projects that benefit their donors and friends, on the other side a lot of talk about the minimum wage and socialized healthcare but none if it ever materializes when they have a majority. Then the next election comes and you vote for the same people who failed you the first time, because the other people are trying to kill toddlers and force schoolchildren to become transgender or are all secretly racists out to build death camps for gay people or some other insane claim fed to you by a corporate news network or comedy show that happens to be owned by someone who benefits from the status quo. Don't worry though, keep drinking Pepsi, you are part of the resistance TM brought to you by Viacom.

Why doesn't anything ever get fixed? We keep putting the people who failed back in charge. Nobody in Congress today should have a seat in the next election until something actually changes.