Constructions of Arbitration’s Informalism: Autonomy, Efficiency, and Justice

Hiro N. Aragaki

In the wake of a recent three-part series by the New York Times, arbitration is now back in the eye of the storm. The leading critique of arbitration, especially in the consumer and employment space, is that it is unjust both in the sense that it does not comport with basic notions of procedural fairness and/or because it cannot be expected to produce outcomes we would consider substantively just. For example, procedure in arbitration is dictated largely by contract rather than by mandatory rules that have been vetted by public bodies entrusted with safeguarding procedural values. Arbitrators are not bound by the rules of evidence. There is no substantive merits review. These and other observations have led a growing chorus of critics to declare that arbitration is “an inferior system of justice, structured without due process, rules of evidence, accountability of judgment and rules of law;” a “deeply unfair end-run around the public courts and our civil justice system;” little more than an instrument of corporate “self-deregulation” that “subvert[s] our system of justice as we have come to know it.”