The New York Times recently ran a series of articles on arbitration (links below), claiming that arbitration was basically a privatization of the US legal system. I found this concept very interesting as my work looks at capitalist based and privately funded electoral processes as a "privatization of democracy." Obviously, within any society governing by neoliberal principles, the goal is to privatize as much of humanity nd society as possible - deregulate economics, bring everything into the market, create strong private property regimes, etc. But within this logic, neoliberalism is generally thought to be about economics, that is, using political and legal caveats to create the best position for capitalist economic gains and businesses. However, these articles show that this extends to the legal and political spheres of our society in a manner truly detrimental to the essence of those aspects of society. In this case, do we really believe that private market influenced interests are the best adjudicators of conflict? Or more broadly of politics? I would contend that law and politics, when designed by select people and groups with specific interests, create a conflict of interest, and that when those processes are implemented for all of the people there are detrimental affects for much of society.
My point is, that these articles in the New York Times have shown a trend in american business practices that point to an effort to actively circumvent the United States judicial system. Having decisions heard by individual lawyers - usually with professional and monetary ties that could affect their decision making ability - does not beget impartiality. In fact the New York Times articles specifically speak to conflicts of interest, and tendencies of arbitrators to side with corporate and wealthy benefactors who are often are deeply involved in the process financially. In short, the people making the decisions are usually paid (or afforded more work) by people with something to gain by the decision.
As I read these articles I started to develop questions about how this system worked and what it looked like in real life. Miraculously, I then walked into a doctors office and was offered an arbitration agreement to sign with my intake forms. Being the curious anthropologist I am, I started asking some probing questions. It turns out that this fledgling acupuncture practice has to have every one of their patients sign an arbitration agreement as a condition for them receiving malpractice insurance! So it is not as if this small medical practice even has a choice to circumvent the judicial system. They must have malpractice insurance to operate, and the only malpractice insurance they can get forces them and their clients to circumvent the legal system - and the abiltiy to crimianlly prosecute - in favor of an "independent" arbitrator. Just like that, the legal system - and recourse to justice - is taken out of the hands of the general populace and put into a murky private industry fraught with ethical and financial conflicts of interest. If there was a problem, rather than being able to file criminal charges, I would have to go to arbitration. Given up my ability to send possible criminals through the judicial system, to be tried by a process built, adjudicated, and juried by our peers, but rather through one adjudicated by lawyers, corporate financing, and the "contract" I signed while thoroughly sick. What am I going to walk out of the office? Not get treatment? Not engage in the online economy? Not buy a car? Not consume? In short, we sign these agreements under the duress of capitalist life, and then lose our very chance to fight against the ills of that capitalist life in a court of law, and by a jury of our peers. Further privatizing and marketizing our daily lives. Shameful.
http://www.nytimes.com/2015/11/01/business/dealbook/arbitration-everywhere-stacking-the-deck-of-justice.html
http://www.nytimes.com/2015/11/02/business/dealbook/in-arbitration-a-privatization-of-the-justice-system.html
http://www.nytimes.com/2015/11/03/business/dealbook/in-religious-arbitration-scripture-is-the-rule-of-law.html
http://www.nytimes.com/2015/11/08/opinion/sunday/arbitrating-disputes-denying-justice.html
http://www.nytimes.com/2015/11/04/opinion/forcing-consumers-into-arbitration.html
My point is, that these articles in the New York Times have shown a trend in american business practices that point to an effort to actively circumvent the United States judicial system. Having decisions heard by individual lawyers - usually with professional and monetary ties that could affect their decision making ability - does not beget impartiality. In fact the New York Times articles specifically speak to conflicts of interest, and tendencies of arbitrators to side with corporate and wealthy benefactors who are often are deeply involved in the process financially. In short, the people making the decisions are usually paid (or afforded more work) by people with something to gain by the decision.
As I read these articles I started to develop questions about how this system worked and what it looked like in real life. Miraculously, I then walked into a doctors office and was offered an arbitration agreement to sign with my intake forms. Being the curious anthropologist I am, I started asking some probing questions. It turns out that this fledgling acupuncture practice has to have every one of their patients sign an arbitration agreement as a condition for them receiving malpractice insurance! So it is not as if this small medical practice even has a choice to circumvent the judicial system. They must have malpractice insurance to operate, and the only malpractice insurance they can get forces them and their clients to circumvent the legal system - and the abiltiy to crimianlly prosecute - in favor of an "independent" arbitrator. Just like that, the legal system - and recourse to justice - is taken out of the hands of the general populace and put into a murky private industry fraught with ethical and financial conflicts of interest. If there was a problem, rather than being able to file criminal charges, I would have to go to arbitration. Given up my ability to send possible criminals through the judicial system, to be tried by a process built, adjudicated, and juried by our peers, but rather through one adjudicated by lawyers, corporate financing, and the "contract" I signed while thoroughly sick. What am I going to walk out of the office? Not get treatment? Not engage in the online economy? Not buy a car? Not consume? In short, we sign these agreements under the duress of capitalist life, and then lose our very chance to fight against the ills of that capitalist life in a court of law, and by a jury of our peers. Further privatizing and marketizing our daily lives. Shameful.
http://www.nytimes.com/2015/11/01/business/dealbook/arbitration-everywhere-stacking-the-deck-of-justice.html
http://www.nytimes.com/2015/11/02/business/dealbook/in-arbitration-a-privatization-of-the-justice-system.html
http://www.nytimes.com/2015/11/03/business/dealbook/in-religious-arbitration-scripture-is-the-rule-of-law.html
http://www.nytimes.com/2015/11/08/opinion/sunday/arbitrating-disputes-denying-justice.html
http://www.nytimes.com/2015/11/04/opinion/forcing-consumers-into-arbitration.html
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