Legal Historians in the Op-ed Pages: Amalia Kessler on Arbitration

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Legal historian Amalia Kessler (Stanford University) has contributed an op-ed piece to the New York Times today on arbitration and its discontents. Here's a taste:

The standard historical account [of arbitration in the U.S.] begins with the Federal Arbitration Act, but the practice of extrajudicial dispute resolution has a much longer history. Mid-19th century Americans across several territories and states — including Florida, California and New York — engaged in a nearly forgotten debate concerning “conciliation courts.”

Widely adopted throughout Europe and its colonies during the late 18th and early 19th centuries, these were institutions composed of respected community leaders seeking to persuade disputants to accept an equitable compromise in secret, lawyer-free proceedings and without regard to the formal rule of law.

Despite the efforts of American proponents of these courts, proposals to establish them went nowhere. In the view of their opponents (including businessmen and lawyers), such courts were incompatible with the American commitment to freedom. 

The important exception was the Freedman's Bureau courts: "[E]stablished in the Reconstruction South to provide justice to the recently freed slaves," these "were modeled on European conciliation courts."

Kessler urges readers to remember this history, and this exception, as they evaluate arbitration today. "[A]s deployed by corporations against many thousands of individual consumers and employees, [arbitration] bears a troubling likeness to the 19th-century concept of conciliation as a practice suited only for a subservient underclass."

Read the full piece here.