Arbitration agreements have enjoyed privileged status among their contractual peers for nearly four decades now. Ever since the U.S. Supreme Court announced in Moses H. Cone Memorial Hospital v. Mercury Construction Corporation (1983) that the Federal Arbitration Act embodies "a liberal federal policy favoring arbitration agreements," those hoping to avoid the uncertainty and publicity of resolving legal claims in court have opted to divert more and more of their most contentious cases to the more predictable, private world of arbitration.

Indeed, a 2018 study found that more than half of all nonunion, private-sector employers require their employees to arbitrate all employment-related claims as a condition of their employment. And for the most part, the court has been quite accommodating. But that might finally be changing.