Default Rules and the Arbitration Fairness Debate

by Deepak Gupta

Jeff Sovern and Paul Bland have contributed thoughtful posts on a proposal being pitched as a "compromise" in the debate over arbitration fairness.  It goes something like this: Instead of passing a law like the Arbitration Fairness Act that would make arbitration voluntary, let's just allow consumers to "opt out" of mandatory arbitration clauses, presumably by means of fine-print notices that nobody will actually read, let alone respond to. Professor Sovern rightly describes this as illusory consumer protection and, as Paul Bland notes, it's a technique that many corporations are already employing to try to defeat unconscionability arguments.

The proposal strikes me as a great illustration of the importance of default rules in choice architecture, a subject explored in the literature of law and behavioral economics and discussed in Cass Sunstein and Richard Thaler's recent book, Nudge.  Their argument revolves around a pretty simple empirical premise: “[I]f, for a given choice, there is a default option—an option that will obtain if the chooser does nothing—then we can expect a large number of people to end up with that option, whether or not it is good for them.”  Corporations take advantage of this insight all the time in consumer transactions. Thaler and Sunstein give the example of offers for magazine subscriptions that consumers continue to receive unless they take affirmative steps to cancel them; Sunstein says he himself has been paying for subscriptions for years because he hasn't gotten around to canceling them. Another example is employer retirement plans; research shows that participation is greatly increased by making it the default instead of requiring employees to opt in.

So I wonder whether proponents of the "compromise" proposal on arbitration fairness would continue to support it if the opt-out mechanism stayed the same, but the default rule were switched: Instead of opting out of mandatory arbitration, consumers would have to read a notice and affirmatively opt in.  I suspect enthusiasm for the proposal would vanish--demonstrating that a truly voluntary system is not the true objective.

Comments

[Norbert Lesong]

NAF was planning to "arbitrate" a case based SOLELY on the word of scot lowery, without ANY supporting documentation as a default. It was only when i disputed their right to even hold an arbitration since there was no issue between myself and lowery that they allowed lowery a "stay" to collect information. That was over 9 months ago. Without ANY information at all to make an arbitration decision, how they could make a DEFAULT judgement without any findings of any facts is beyond bizzarre. The entire concept of arbitration is that both sides present information and the arbitrator makes a decision on the merits. NAF are criminal conspirators, nothing more, and should be prosecuted under RICO.

[Neil]

I was one (of the hopefully many) who emailed members of the ABA leadership in opposition to ABA taking a position on AFA. In my email, I suggested, inter alia, that:

"If arbitration is so great, then let consumers opt into it. Don't start with a default that says consumer lack the right to go to court.

The ABA should stand for the ideal that people have an undeniable right to access to justice - a right that is not automatically waived by default. Access to justice is what the AFA provides. And in many cases, it is lower cost justice than could ever be offered by arbitration. See, e.g., http://www.csmonitor.com/2007/0716/p13s01-wmgn.html discussing how arbitrator fees frequently exceed the costs of a dispute.

5. If the ABA wants to take a position on the issue of arbitration, perhaps it should so so by opining on the fundamental unfairness offered by organizations such as the National Arbitration Forum. Even Businessweek, hardly a leftist consumer publication, reports (at http://www.businessweek.com/magazine/content/08_24/b4088072611398.htm?chan=search) that:
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Some current and former NAF arbitrators say they make decisions in haste—sometimes in just a few minutes—based on scant information and rarely with debtor participation. Consumers who have been through the process complain that NAF spews baffling paperwork and fails to provide the hearings that it promises. Corporations seldom lose. In California, the one state where arbitration results are made public, creditors win 99.8% of the time in NAF cases that are decided by arbitrators on the merits, according to a lawsuit filed by the San Francisco city attorney against NAF.

"NAF is nothing more than an arm of the collection industry hiding behind a veneer of impartiality," says Richard Neely, a former justice of the West Virginia supreme court who as part of his private practice arbitrated several cases for NAF in 2004 and 2005.
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I am truly surprised that there is even a need for me to write such a letter to the ABA, given the extent of support for AFA by many members of the legal community, given the fact that AFA contributes to access to justice, and given the empirically demonstrated unfairness of many arbitration practices.