Not unlike our current political landscape, the arbitration field is now split by ideology. For two generations now, dating back to the U.S. Supreme Court’s 1967 decision in Prima Paint, which carved out the way for modern arbitration law, the virtues of arbitration as a means of “alternative” dispute resolution have been extolled. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967). No messy discovery fights, no appeals, experienced arbitrators—essentially a “one and one” means of resolving disputes.

So it was said and so it largely remains for business-to-business disputes. But a funny thing happened on the way to arbitration’s popularity: it became a means of swallowing up consumers’ ability to bring any lawsuits. In a one-two punch that has been wholly upheld by three U.S. Supreme Court opinions in a row, commercial interests have succeeded in (1) inserting arbitration clauses into their commercial contracts, and then (2) prohibiting class actions from being arbitrated. The only suit a consumer can bring is over her specific grievance. Since, as Justice Breyer aptly put it in a dissent to one of these cases, “only a lunatic or fanatic sues for $30,” the result is the effective elimination of consumer lawsuits. AT&T Mobility v. Concepcion, 131 S. Ct. 1740, 1761 (2011) (quoting Carnegie v. Household Int’l, 376 F.3d 656, 661 (7th Cir. 2004)).

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