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More Bloodsucking

posted by Elizabeth Warren

Bob Lawless picked up on the West Virginia former Supreme Court Justice who had his fill of a rigged arbitration system.  The judge's article, "Arbitration and Goodless Bloodsuckers," didn't hold back. 

Now there's another voice in the chorus.  My colleague, Harvard law professor Elizabeth Bartholett, testified under oath in a deposition for a consumer who is suing to avoid on a lawsuit to getting sent to arbitration.  Betsy explains how once she ruled against a credit card company, all her pending cases against that company were sent to someone else, with notes to the consumers that she had a "scheduling conflict."  The rules of the game don't seem hard to figure out:  Keep only the arbitrators who rule only for the credit card companies. 

It would be good to look at the data, to evaluate arbitration cases the way we evaluate court cases to see who wins and who loses and what factors seem to make a difference over time.  But the National Arbitration Forum is fighting hard to keep all its information secret, even when the data are stripped of personally identifying information.

Twenty years ago, many policymakers had high hopes for what arbitration might accomplish.  Katie Porter had already registered her concerns, and we're all looking forward to her study.  But these stories from ex-arbitrators who have actually been inside the system raise the possibility of systemic corruption.   


Paul Bland has written on this over at CL&P blog. There is still a big hurdle to leap under the quasi-judicial immunity that arbitrators have.

Not surprising to see an industry working to bias what is supposed to be an honest and trustworthy system to serve their selfish purpose. Sadly, this "systemic corruption" is only a mirror of the flaccid self regulation of attorneys. What other industry is allowed to pretend to police themselves, and to do so in secret? Large law firms routinely escape punishment for even the most obvious ethical and criminal misconduct. Justice is for sale when big business, such as the legal service industry, holds a monopoly on every aspect of process.

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