We like to think that if a company cheats us, steals our wages, or breaks the law, we can take them to court. Unfortunately, there’s a good chance you’ve already signed that right away.
This week, Brendan Ballou returns to the podcast to explain how forced arbitration created what he calls America’s secret justice system—and why this is as much an economic story as a legal one. He joins Paul and Goldy to unpack how corporations use economic power to weaken workers’ and consumers’ legal power, why the myth of the “voluntary contract” falls apart when every option comes with the same fine print, and how making corporate misconduct harder to challenge changes the incentives that shape the entire market.
Brendan Ballou is the founder of the Public Integrity Project, a nonprofit anti-corruption law firm, and the author of When Companies Run the Courts: How Forced Arbitration Became America’s Secret Justice System.
Further reading:
When Companies Run the Courts: How Forced Arbitration Became America’s Secret Justice System
Plunder: Private Equity’s Plan to Pillage America
Social Media:
Instagram: @brendanballou
Substack: @brendanballou
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Goldy:
Hey, Pitchfork listeners. One of the joys of co-hosting this podcast is that I get to ask Nick questions from time to time that put him on the spot. Is that one of your joys, Nick?
Nick Hanauer:
It is absolutely not one of my joys.
Goldy:
But he loves it so much, despite what he just said there, we’re going to give you the opportunity to play Goldy by asking Nick questions yourself.
Nick Hanauer:
That’s right. And we will read every submission. We will not answer every question. But we’ll answer the most interesting and spicy ones because it’s a really fun way to connect with listeners and just find out what’s on people’s minds.
Goldy:
And if you want to put me on the spot, you can feel free to ask me a question too. To submit, just comment on this week’s episode on YouTube or Spotify with the #askpitchfork, and we’ll also put a link in the show notes. Thanks for listening and thanks for making us listen to you.
Nick Hanauer:
The rising inequality and growing political instability that we see today are the direct result of decades of bad economic theory.
Goldy:
The last five decades of trickle down economics haven’t worked, but what’s the alternative?
Nick Hanauer:
Middle out economics is the answer.
Goldy:
Because the middle class is the source of growth, not its consequence.
Nick Hanauer:
That’s right.
Announcer:
This is Pitchfork Economics with Nick Hanauer, a podcast about how to build the economy from the middle out. Welcome to the show.
Goldy:
Paul.
Paul Constant:
Hello. How are you, Goldy?
Goldy:
I’m okay. Before we start this podcast recording, look on your screen, there’s a little box you need to click. I have this user agreement that I want you to … Don’t bother reading it. It’s about 10 pages long.
Paul Constant:
Okay, cool.
Goldy:
Trust me. It’s routine.
Paul Constant:
Cool, cool, cool. Yeah. Scroll, scroll, scroll, scroll, scroll, click. Okay.
Goldy:
That’s just the sanity clause.
Paul Constant:
Okay, so what did I just sign? Do you have ownership rights of my dogs now?
Goldy:
No, they actually have ownership rights over you.
Paul Constant:
That’s true. That’s a very colorful illustration, Goldy, thank you. Of what we’re here to talk about … I don’t usually do this, but I do want to say before we talk about this that we’re talking about a legal issue that might sound boring or complicated or-
Goldy:
A legal issue that might sound boring or complicated?
Paul Constant:
Exactly. For some of our listeners, I don’t like to talk about this in advance because I don’t think there’s any such thing as a subject that is truly inherently boring, but I do understand sometimes you start a podcast and you’re like, “Oh God, this is about legal stuff,” and then you skip ahead to whatever.
Goldy:
I just want to tell you what a hypocrite you are because you often accuse me of talking about things that are inherently boring.
Paul Constant:
Well, you are inherently boring, but the things you talk about don’t have to be if somebody other than you talks about them. So I just want to lay out really clearly and really straightforwardly what we’re talking about. Right now, listeners of this podcast, along with millions, tens of millions of other Americans are in a system in which if they were to take a legal case against a corporation, they would be signed in instead to a secret corporate court. They basically signed away their rights to sue corporations and employers and things like that and agree to the rulings of a court that is not the US legal system.
Goldy:
Right. An arbitrator that is chosen and paid for by the company you’re having a dispute with.
Paul Constant:
Exactly. Right.
Goldy:
That seems fair.
Paul Constant:
Yes. It is a secret legal system that is overwhelmingly biased towards the corporations that pay for it. And that is a big damn deal. It’s called forced arbitration, and it is a very important issue. Luckily, we have here a lawyer who knows how to talk about these things in a way that is very understandable. His name is Brendan Ballou. He’s been on the pod before. He is here with a new book called When Companies Run the Courts. It’s an excellent and very accessible guide to forced arbitration. And it’s also ultimately very hopeful about ways that we can undo the system and return legal power to the American people.
Goldy:
And the best thing of all, you don’t need to sign any contracts in order to listen to our interview with Brendan.
Brendan Ballou:
My name is Brendan Ballou. I’m the founder of the Public Integrity Project, which is a nonprofit anti-corruption law firm, and I’m the author of When Companies Run the Courts: Forced Arbitration in America’s Secret Justice System.
Goldy:
Wow, that sounds ominous. I mean, I though we lived in a country with the rule of law where we’re all treated equally and have equal access to the courts and the law, but you’re telling us that’s not true?
Brendan Ballou:
I hate to break it to you. I have some terrible news for you. So yeah, no, I’m happy to explain the basic issue here and the basic problem that that book was trying to deal with, which is the problem of forced arbitration, which is a private justice system that is an alternative to our public courts that is in large part administered by and controlled by America’s companies, often the companies that you are trying to sue, the companies that you’re trying to hold accountable. As you can imagine, when one side controls that court process, it very rarely goes well for consumers and for employees.
Paul Constant:
And you talk about in the book, I love the book by the way, thank you for writing it, you talk about the sort of campaign to make this forced arbitration system happen. And I recall some of this from when I was a teenager. It felt like every media company suddenly really cared about McDonald’s getting sued for the woman who splashed with hot coffee. And it was all the late night jokes were about it and people were calling for reform.
Could you talk a little bit about how this came to be?
Brendan Ballou:
Yeah, absolutely. I think for anybody that was alive in the ’90s they kind of have this ambient awareness of this national hatred for lawyers. There are lawyer jokes all the time. And as you said, Jay Leno was constantly joking about the woman who spilled coffee in her lap at McDonald’s. I’m happy to talk about that. But the short answer is beginning in the 1960s, there was an explosion of rights for consumers, for workers, for women, for minorities, for people that were experiencing environmental harms and discrimination and so forth. And just as soon as those rights emerged, there was a backlash by large companies, companies that frankly didn’t want to deal with getting sued because their cars exploded or because their implants migrated or allegedly caused cancer.
And so they started telling the story of the idea of a litigation explosion, this idea that there is a huge number of frivolous cases that are out there in the United States that are bankrupting businesses and raising prices for people, forcing people to get fired and so forth. We can go into the details if it’s helpful. The data doesn’t really bear that out. It’s not at all clear that a litigation explosion happened or if it did, it was in large part litigation against retirees and veterans. We can get into the details of that.
But I think just as powerful as the supposed numbers were these stories that you alluded to. The story of Stella Liebeck, who was this 80-year-old woman who had McDonald’s coffee spilled on her as she was in the drive-through, it was a national joke and yet for her it was anything but. The coffee had been heated to near boiling temperature. In fact, McDonald’s had a policy of doing that, I think to disguise … I’ve talked with folks about this afterwards. One of the reasons they might have done that is the coffee tasted really bad and it’s harder to notice the taste of coffee if it’s really hot. But they had this policy of heating up the coffee to near boiling levels when it slipped and fell in her lap. She actually got third degree burns in her thighs, vagina and buttocks. She was in recovery for weeks. She was below a hundred pounds at one point and had to recover for multiple years.
She actually just tried to settle for the cost of her medical bills and McDonald’s repeatedly refused. Forcing her to go to trial, at which point she was able to get several million dollars in punitive damages because as I mentioned, it turned out McDonald’s had a policy of doing this and it had hundreds of similar incidents and yet had done nothing. So that was actually a case where the legal system really worked to rectify an individual harm and to create a little bit of a financial incentive to prevent a company from doing this in the future. And yet it became this national joke and a basis for instituting all these reforms that ultimately made it much harder for ordinary people to get justice when big companies hurt them.
Paul Constant:
Yeah. And can you talk a little bit about the scope of this system? It’s really sort of mind boggling.
Brendan Ballou:
Yeah. So the scope of forced arbitration is … And I think it’s helpful to just set for your audience what exactly forced arbitration is. So as we were alluding to earlier, forced arbitration is a private alternative to the public court system. So ordinarily you have a dispute, your boss discriminates against you, the company you buy something from doesn’t sell you the product or the product breaks or causes cancer, whatever it happens to be. You can, at least in theory, sue in court. That decision will be decided by a judge who’s paid for by the taxpayers. And if the judge makes a mistake, you can appeal that decision.
None of that is necessarily true in forced arbitration. In forced arbitration, “the judge,” the arbitrator is not paid for it by the taxpayer, paid for by the parties. And unsurprisingly, when they are often paid for by the corporate defendant, they typically rule for that corporate defendant. So you actually have one side typically paying for the cost and paying the judge that’s going to decide your case. And unlike in an ordinary court system, these proceedings almost can never be appealed. So if that judge, again, a judge that has a lot of incentives to rule against you, in fact does rule against you, there is almost nothing that you can do to appeal that decision.
And I think perhaps most concerningly for the rule of law, unlike in a public court system, which happens in public, decisions are written down, they form a precedent on which the law develops and people can be treated on an equal and fair basis, forced arbitration happens overwhelmingly in secret. And so you quite literally don’t have what we would consider the law in arbitration because you don’t have written decisions upon which other people can rely. And so ultimately forced arbitration is a highly biased, highly secretive, and often highly unfair system that people have to live in, and yet it surrounds us.
Goldy:
So I’d like to play devil’s advocate here. And of course by devil, I mean introductory economics textbook author. According to economics, I mean this is a voluntary contract that people go into. They could choose not to agree to this and this is their freedom. How is that not the case that we’re all making this choice to get into these arbitration agreements and giving up our rights to sue in court?
Brendan Ballou:
That’s a great question. And I should say that the federal law that authorized arbitration in general really was not meant to extend to what you might call the take it or leave it contracts that we deal with every day. When you sign up for a bank account or for a new cell phone carrier or when you visit a website and say that you accept the cookies and the terms of service and so forth. These are what lawyers call contracts of adhesion or take it or leave it contracts. And fundamentally, they’re not things that we can negotiate over. When’s the last time that you wanted to sign up for a cell phone agreement and you got that large legal document and said, “Well, I agree with sections one and two, but Verizon, you’re going to have to give me something on section three and four.” That’s not how those agreements work. So at a practical level, where arbitration agreements often are, overwhelmingly are, are in contracts that we have no say over. Now, ultimately, you can decide whether or not to sign up with that company at all.
But think about the companies that we’re talking about. How many cell phone carriers do you get to choose from? How many credit card companies do you get to choose from? I’m willing to bet that it’s probably not that many options. And I’m also willing to bet that most and probably all of those companies have forced arbitration agreements. So in the abstract, yes, this is something that you could contract away or choose a competitor for, but in the reality of how most of these industries work, you don’t have a choice at all.
Goldy:
Right. And we think of this a lot from the perspective of the consumer, because of course as consumers we face these … We don’t read these things. We just click accept all the time. But this also applies to a lot of workers and you can’t get a job without agreeing to one of these contracts.
Brendan Ballou:
Exactly. And it’s not just that oftentimes when you start a job, there is an arbitration agreement. Oftentimes companies will send you an email after you’ve been working there for months or years or decades saying that by continuing to work there, you agree now to an arbitration agreement. And simply by continuing to work at the company, you accept this new system where you can’t go to court if the company allegedly discriminates against you, refuses to pay you, creates unsafe working conditions and so forth.
One of the things that’s really shocking is these agreements bind you whether or not you actually sign them. And oftentimes even if you try to fight them, there was a really interesting case in California state court where one worker was told at a conference meeting that the company was switching over to binding arbitration by continuing to work at the company, everyone was agreeing to arbitrate their disputes. I think she said that she was going to opt out within days of that company making that announcement and then ultimately filed a written version of that within a matter of weeks. I think right around the Christmas holidays and so forth. She was really prompt despite the fact that people were out, that the holidays were going on.
But the court said that by continuing to work there, I think for a period of somewhere around three weeks while she was trying to contest the forced arbitration agreement, she bound herself to it and she was ultimately forced to arbitrate her disputes with the company.
Paul Constant:
What happens when you change the incentives like this when consumers can’t get a fair retribution for something wrong or when employees can’t take their employers to court for an egregious breaking of the rules, violation of the rules?
Brendan Ballou:
Well, I think we have a system a lot like what we all experience every day, which is I think at an intuitive level, a lot of us feel that companies probably treat us worse than they did 30 years, 20 years ago, maybe even 10 years ago, that think about how many times you’ve tried to get somebody on customer service to help you or that you’ve had to talk to a chatbot that had absolutely no answers and you felt helpless to do anything, that helplessness is very real. It’s intentional. It’s that a lot of companies know that there’s very little that you can do legally if they cheat, harm, discriminate against you or anything else.
One of the things that I think is really important to understand about forced arbitration is it doesn’t just force you into a private system. It often makes harms that are anything less than life changing functionally impossible to fix. So what I mean by that is when you sign up for an arbitration agreement, oftentimes it’ll say not only do you agree to arbitrate a dispute if you have a problem with a company, but you agree to do so individually. You can’t join a class action or have something like a class action in arbitration. And class actions matter because it allows people to share a single lawyer or a single law firm for everybody who’s hurt in a certain kind of way, the family members of everybody who dies in a plane crash or everybody who’s cheated by some scammy business online or whatever it happens to be.
The problem that you’ve got is if you have to pursue each case individually, you’re only going to do so for the absolutely most dangerous, most deadly, most expensive harms. If you have to arbitrate each individual case, how much money would have to be at stake? Just think personally, think psychologically, how much money would have to be at stake for you to go through the process of initiating arbitration, going through it, writing motions, arguing it yourself in order to try to get justice? And that number’s probably pretty high.
And so what that means is forced arbitration makes all but the most expensive harms that companies perpetrate really beyond the reach of the law, at least for consumers and employees. So if you feel like companies are scamming you out of a few dozen or a few hundred dollars sort of without consequence, forced arbitration in large part explains why.
Goldy:
Okay, so here we are. I personally I’ve lived through the era of seeing this grow. A lot of us have first experienced it with software, with shrink wrap licenses and the click agreements and all that. And now it’s on literally everything. What’s the solution? How do we get people their legal rights back?
Brendan Ballou:
Well, the Supreme Court has really expanded forced arbitration well beyond whatever the law really intended. It really wasn’t meant to apply, as we were talking about earlier, to click to accept agreements. It wasn’t meant to apply to disputes between employers and employees or between consumers and the companies that they buy from. But the Supreme Court over a series of years has really expanded forced arbitration to include all of these things and to allow forced arbitration to kill class actions like we just said. I think it’s unlikely that the Supreme Court’s going to change direction on this, and I think it’s unlikely that Congress is going to enact comprehensive reform around forced arbitration because Congress really struggles to accomplish much of anything in the 21st century.
So I think if we’re going to make progress, it’s really going to be happening at the state and local level. The Supreme Court will invalidate a lot of state and local legislation around this, but what we can do and what will be very hard to invalidate is legislation that makes forced arbitration more transparent, more equitable, more appealable. In other words, that makes forced arbitration more like an ordinary court system. The more that forced arbitration is made to look like court, ironically, the less likely companies are going to be attracted to it. And so I think we really need local action on this. We actually have written up model legislation on exactly this issue and we really just need the will to act at the local level.
Paul Constant:
You have an example in the book of a situation that was reformed, the actor Eliza Dushku, who was Faith on Buffy the Vampire Slayer, who is what I know her from, where she suffered some really atrocious sexual harassment on set of a TV show that she though she was going to be on for seasons. And when she protested, she was fired and then forced into a forced arbitration situation. But it sounds like there’s been some reform in that area, and I was wondering if you could talk a little bit about that and also if that provides any sort of a roadmap for fighting forced arbitration in other areas.
Brendan Ballou:
Yeah. And Dushku’s story was pretty upsetting. She was experiencing persistent sexual harassment allegedly by one of her co-stars. She was ultimately able to get a settlement, but had to keep secret. She had a non-disclosure agreement and was only able to come forward because her previous employer seemingly violated its terms on the agreement and started speaking up publicly, so she decided she could too.That action, coupled with a lot of news from the Me Too era, pushed Congress to take action to exempt claims of sexual harassment and sexual assault from forced arbitration, which is really great. That is life changing for so many people. I’ve seen so many cases where people were forced to arbitrate really extraordinary cases of alleged rape, alleged wrongful birth in arbitration because they weren’t allowed to go into the court system. So this really does change people’s lives. But it is one part of a huge mosaic of things that people want to challenge companies on.
Unfortunately, I don’t think there’s really ambition in Congress to enact comprehensive reform. Perhaps there’ll be an attempt to sort of do for other forms of discrimination what they were able to accomplish with sexual harassment and sexual assault, perhaps around age discrimination, racial discrimination and so forth. But it’s hard to imagine Congress taking on less popular constituencies or taking on harms that just ordinary consumers face. So again, I think that’s a really great step forward, but I think it’s one part of a larger puzzle that’s going to really be led by state and local politicians that are going to be able to limit forced arbitration here.
Paul Constant:
Okay. So we have on this podcast something called the magic wand question, which is generally what you would do if you had the power to wave away broad swaths of legislation or do anything you want. But I want to narrow it down a little bit here for the purposes of this conversation. If you could rewrite the rules tomorrow with no political constraints, what rights would you make it so that workers and consumers could never be allowed to sign away?
Brendan Ballou:
So I think your question is a really good one about sort of what’s a specific thing that we can empower workers and employees on. And I should say, arbitration by itself is not an unmitigated bad. In fact, arbitration can make a lot of sense for people who want to avoid the formality and time and cost of typical court proceedings, but it really needs to be freely chosen. And that’s why my critique is not of arbitration, but of forced arbitration, what might more technically be called pre-dispute arbitration.
So I would be totally fine, and I think most people would be totally fine with if you have a dispute with your employer, if you have a dispute with the company that you bought something with and one side proposes, “Hey, court’s going to take us years to solve this. We could get this done in six months if we do this in arbitration.” Mutually agreeing to that is totally fine.
What we really need to prevent is what’s called mandatory pre-dispute arbitration. So having the arbitration clause in that cell phone contract you sign, in that credit card contract you sign, in that employment agreement you sign, or that email that you get from your employer saying that by continuing to work there, you agree to arbitrate your disputes. If we can stop pre-dispute arbitration, I think our court system is going to be vastly more fair and I think companies are going to start treating us a lot better.
Goldy:
Final question. Oh, I get to ask it this time. Why do you do this work?
Brendan Ballou:
That’s a very generous question of you to ask. I think for me, I’m a practicing lawyer, so I’m not an economist. I come at this as somebody that deals with this stuff every day. I think people in America feel very strongly that the legal system is stacked against them, that powerful individuals, powerful companies have huge systematic advantages that regular folks do not. As a practicing lawyer, I want to explain to them that in fact, they’re right, that the system really is biased towards the very powerful, but try to explain it in a way that’s specific enough that people understand the specific mechanics by which our legal system gets biased towards one side. And if we can explain it really specifically how we got to our present moment, we can hopefully be more productive in figuring out how we get back. And so by talking about the specific seemingly technical issue of forced arbitration, hopefully we can empower people to take specific action on this because if we can fix this, our entire legal system is going to become a lot more fair.
Goldy:
So Paul, I’m sure some of our regular listeners might be wondering what the hell does this have to do with economics? And the short answer is everything. One of the things that’s missing from Orthodox economics, and we talk about this a lot, I know Nick talks about this a lot, it’s a big issue here, is that economics as it’s taught, as it’s understood, just theorizes away power. There is no power in the economy because it’s a free market and we all enter into these voluntary contracts and we all have perfect information and if you don’t want to agree to forced arbitration at this employer, you just go and get a job with another employer. Or if you don’t like the contract at AT&T, you go and you can choose your preferred forced arbitration contract from Verizon or T-Mobile because it’s choices, it’s the market and everything.
But of course there is power in the economy and there’s a lot of power in the economy. And what we’ve seen over the past half century is large corporations concentrating power in many different ways. Sometimes it’s market power and sometimes like this, they’re using legal power. They’re actually changing our legal system from one in which we all have the same right to go to court and sue for damages or to protect our rights to one which if you want to participate in the economy you pretty much have to sign all these rights away. And the only people who have power are the corporations, are the employers, are the people selling you the potentially shoddy goods or not providing the services you though you contracted for. And all this does is make the natural power imbalance in a market economy even more imbalanced. And that is not just bad for workers and consumers, it’s bad for the economy. It actually, I hate to use this word, it introduces inefficiencies.
Paul Constant:
Well, by inefficiencies, this is also trampling people’s rights and stealing money from people and yes-
Goldy:
Right. Which is anti-market because for the market to work best, there has to be a certain amount of trust that people will be treated fairly. And the more that corporations get away with disempowering you, with taking away your legal rights, and that’s what they’re doing, they’re taking away your legal rights, the more power they have to screw you over either in the workplace or in the market. So to think that this is a legal issue and not a market issue, it’s not an economic issue is just wrong. They’re using their economic power to increase their economic power.
Paul Constant:
Yeah. And so this is one of those issues where I feel like our listeners have a little more power to change the system than they might otherwise have, because as Brendan said, this is not an issue that’s going to be won at the Supreme Court.
Goldy:
No, not this court.
Paul Constant:
Exactly.
Goldy:
Maybe with the 15 justices of the next court.
Paul Constant:
Why Goldy, that’s so optimistic of you. Yeah, not with this Supreme Court, not with this Congress for sure. It is the kind of thing that can be won at the state and local level, I think. And it’s something that is an issue that you could bring to your local legislators and local candidates for office and get more bang for your buck by promoting this issue locally. It wouldn’t have to take very many states to do away with forced arbitration for the issue to suddenly change drastically, right?
Goldy:
Right. And we’ve seen this with other types of contract issues. For example, states have been pretty forceful and successful in recent years where they choose to be in getting rid of non-compete agreements-
Paul Constant:
Exactly.
Goldy:
… in most cases. It used to be that fast food restaurants could make you sign a non-compete agreement that essentially prevented you from working at other fast food restaurants because you wouldn’t want to … It’d be bad for that company to lose the trade secrets on how to make a burger or a sandwich, right?
Paul Constant:
Right. Yeah.
Goldy:
Yeah.
Paul Constant:
Sandwich artist, it’s an arcane art form.
Goldy:
Yeah. And really, you owe it to your employer for every skill you’ve learned slapping cold cuts on a piece of stale bread.
Paul Constant:
Exactly. We’ve done a few episodes on non-competes in the past and we’ve made great progress. Like you said, that was … Man, you are in a great mood today, Goldy. We can fight city hall and-
Goldy:
We can fight city hall, Paul. We just can’t fight the Supreme Court or Congress or the White House.
Paul Constant:
Right.
Goldy:
I don’t know.
Paul Constant:
We’re just going to …
Goldy:
Rather than the Supreme Court, I’d like to see this all settled in the International Criminal Court at The Hague.
Paul Constant:
Okay. All right. Okay. Glad to have you back, Goldy.
Goldy:
Yeah.
Paul Constant:
But I think this is an issue that I am excited that we have this issue that can be dealt with. A state level that people can get excited about and that you can see genuine change. And so thank you for joining me in that brief foray into optimism, Goldy. I’m glad you’re back under your rain cloud.
Goldy:
And if you want to learn more about this topic, we encourage you to read Brendan’s book, When Companies Run the Courts: How Forced Arbitration Became America’s Secret Justice System. Of course, we will provide a link in the show notes. And Paul, where might people buy a book like this?
Paul Constant:
Well, they can buy them at bookshop.org if they’d like, or they should also give their local independent bookstores their business if possible.
Freddy:
Pitchfork Economics is produced by Civic Ventures. If you like the show, make sure to follow, rate, and review us wherever you get your podcasts. Find us on other platforms like Twitter, Facebook, Instagram, and Threads @pitchforkeconomics. Nick’s on Twitter and Facebook as well, @nickhanauer. For more content from us, you can subscribe to our weekly newsletter, The Pitch, over on Substack. And for links to everything we just mentioned, plus transcripts and more, visit our website, pitchforkeconomics.com. As always, from our team at Civic Ventures, thanks for listening. See you next week.