ABSTRACT
This Note responds to the dominant critique of today’s arbitration doctrine – the access-to-justice critique – and articulates a novel intervention from the perspective of political economy. By developing a new periodization of the Supreme Court’s arbitration jurisprudence, the Note categorizes and recounts the normative positions on arbitration law that predominate in the literature. This Note identifies a gap in existing critiques and borrows from critical analyses of antitrust to contend that arbitration law suppresses the coordination rights of the market’s small players – workers, consumers, contractors, and small merchants – to the benefit of large players like corporations. This suppression facilitates the kinds of economic production and corporate organization that characterize gig-economy firms. Evaluating arbitration law through this lens provides a novel application of, and further develops, the insights of law and political economy, ultimately suggesting reform pathways that might retrench mandatory arbitration.
Gustavo Berrizbeitia, The Political Economy of Arbitration Law, 134 Yale Law Journal 266-328 (2024).
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