Amalia D. Kessler: Stuck in Arbitration

Amalia D. Kessler, a professor of law and legal history at Stanford University, is working on a book on the 19th-century origins of American adversarial legal culture.

YOU buy a cellphone, computer or car. You sign up for a credit card or open a retirement account. You apply for a job.

In all these circumstances, you’re told that you must agree to dozens of terms and conditions, set forth in technical verbiage and tiny print. Eager to complete your purchase — or desperate to be hired — you ultimately sign without reading.

If you’re lucky, nothing goes wrong. But a growing number of consumers and job seekers discover, when something does go wrong, that they have unknowingly agreed to waive their right to file a lawsuit. Instead, they must submit to arbitration....

It wasn’t always this way.

Until the early 20th century, American courts often refused to enforce agreements to arbitrate, insisting that parties ought to have their day in court. This began to change with the 1925 enactment of the Federal Arbitration Act, which established that agreements to arbitrate were enforceable like any other contract.

While the arbitration act was initially envisioned as applying primarily to disputes between commercial equals, since the 1980s, the United States Supreme Court has interpreted it in ways that have facilitated corporate America’s efforts to force consumers and employees into arbitration. This trend has accelerated in the last few years....