Much attention is now being paid to the expanded use of forced arbitration clauses in employment and consumer contracts, the attendant harms to consumers and employees, and the possibility of federal intervention. Recent media attention has highlighted the harms that arbitration inflicts on Americans every single day. And a flurry of federal activity (both congressional and regulatory) has sought to chip away at many of these harms.
Perhaps because of a concern that their efforts would be preempted by federal law, however, states have not yet fully examined the tools available to them to minimize forced arbitration’s harms and to protect consumers and employees from some of the harmful effects of forced arbitration that are not shielded by federal law as it currently stands.