Divided and Conquered: The Neoliberal Roots and Emotional Consequences of the Arbitration Revolution

Authors

Hila Keren, Southwestern Law School

Abstract

The “arbitration revolution” has diminished access to justice for millions of people, allowing American corporations to secure significant insulation from collective challenges in both judicial and arbitral forums. Although currently identified damages are immense, some scholars have recently described proposals to undo the revolution as wishful thinking in the current political climate. This Article acknowledges the political difficulty but seeks to uncover the roots of the problem to re-open a path for a change.

Offering an analysis of the 2019 United States Supreme Court decision in Lamps Plus, Inc. v. Varela, this Article demonstrates that the “revolution” has been driven not by the oft-declared policy of “favoring arbitration,” but by a premeditated effort to undermine collectivity. This legal hostility towards collective actions, this Article shows, has been part of a broader transformation: the rise to dominance of neoliberalism and the resulting creation of a corporatized political economy. It thus reconceptualizes the arbitration revolution as a process of separating collective actors, one that has been inspired by neoliberal theorists, executed and funded by organized corporate interests, and embraced by the Supreme Court.

This new framing highlights previously unrecognized harm of the arbitration revolution: it leaves prospective claimants feeling isolated from their peers and abandoned by their state, inducing pervasive feelings of powerlessness. Having identified this affective outcome, this Article shows how the emotional consequences of the revolution further operate to suppress resistance and invoke resignation. These behavioral tendencies are not unintended consequences; instead, they are produced by a calculated effort to foster neoliberal hegemony and corporate control by cultivating the passivity of ordinary citizens.

This Article ends with a warning that those who feel powerless and resigned about the protection of their legal rights may feel similarly indisposed to engage in other forms of democratic citizenship. By offering a novel understanding of how the arbitration revolution vitiates collectivity and threatens democracy, this Article aims to reignite efforts to undo the revolution and reauthorize citizens to act collectively.

Recommended Citation

Hila Keren, Divided and Conquered: The Neoliberal Roots and Emotional Consequences of the Arbitration Revolution, 72 Fla. L. Rev. 575 (2020).
Available at: https://scholarship.law.ufl.edu/flr/vol72/iss3/3