Law & Economics Working Papers
Mandatory arbitration clauses in consumer contracts are widely regarded as problematic becasue they limit consumer's access to judicial forums, to fair procedures, and potentially to any kind of remedy. But rather than looking at consumers as a group, I examine which sub groups of consumers are affected by this limitation more than others. I argue that in most circumstances, access to courts benefits the elite, not the weak. It is a species of open-access policy that has an unintended regressive effect. Paradoxically, rules rather than protect, weaker consumers, as they mandate a regressive reallocation. I also consider the role of class actions, and whether weak consumers are potentially the indirect beneficiaries of class action litigation. This argument has theoretical merit, but it, too, is limited in ways that are often unappreciated.
Omri Ben-Shahar, "Mandatory Arbitration and Distributive Equity: An Essay on Access to Justice" (Coase-Sandor Institute for Law & Economics Working Paper No. 628, 2013).