Don't Let the Fox Guard the Hen House

An old proverb advises to not let the fox guard the hen house. But on April 26, the U.S. Supreme Court will hear oral arguments for a case that could turn this bit of common wisdom on its head.

The case is Jackson v. Rent-a-Center, and the civil rights implications for workers and consumers are enormous. A ruling against Jackson could mean all challenges to the fairness of forced arbitration clause terms would be decided not by the courts, but by the arbitrators themselves. The fox would be guarding the hen house.

Forced arbitration clauses first started appearing in the fine print of employee and consumer contracts in the early 1990s, and were quickly and widely adopted by corporations to shield themselves from accountability. It is often not until a dispute arises with the corporation that individuals realize that with the document they had to sign in order to receive a service or get hired, they surrendered their rights to the legal system and must instead settle the issue through binding, secret arbitration proceedings.

The clauses are generally enforceable, but under current law, workers and consumers may sometimes (but rarely) go to court and ask a judge to strike down a particularly unfair term by deeming it "unconscionable." Court review is limited, but this at least weeds out the very worse abuses.

But however unfair and anti-consumer the current forced arbitration system is, a ruling against Jackson in this upcoming case could make it immeasurably worse.

Take, for example, an individual who wants to challenge that the arbitrator chosen by the company is unfairly biased toward that company. This ruling could mean the arbitrator would be the decider of their own level of bias. Or, for someone who wants to challenge that the forced arbitration is prohibitively expensive, this ruling could require paying for the arbitration to ask the arbitrator whether the fee is unfair.

The Supreme Court could end up giving corporations free reign and remove courts from the equation entirely simply by writing into the contract that arbitrators are to handle challenges to their own forced arbitration clauses. The conflict of interest that could be created is astounding, as it is obviously in the arbitrator's best interests to rule in favor of their own systems.

Jackson v. Rent-a-Center throws a spotlight on just how close corporations are to being granted totally unchecked authority to force the American public into arbitration under whatever terms most benefit the company's bottom line - at the expense of citizens' access to the legal system.

After all, if companies have free reign to write, enforce, and judge the fairness of forced arbitration terms, citizens will have no other place to turn. The fox will be guarding the hen house.

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