1. See the following New York Times articles, in the “Beware the Fine Print” series: Jessica Silver-Greenberg and Robert Gebeloff, “Arbitration Everywhere: Stacking the Deck of Justice,” October 31, 2015; Jessica Silver-Greenberg and Michael Corkery, “In Arbitration, a ‘Privatization of the Justice System,’” November 1, 2015; Michael Corkery and Jessica Silver-Greenberg, “In Religious Arbitration, Scripture is the Rule of Law,” November 2, 2015.

2. Alexander J. S. Colvin, The Growing Use of Mandatory Arbitration, Economic Policy Institute, April 6, 2018, https://www.epi.org/publication/the-growing-use-of-mandatory-arbitration-access-to-the-courts-is-now-barred-for-more-than-60-million-american-workers/.

3. The Center for Popular Democracy and the Economic Policy Institute, Unchecked Corporate Power: Forced Arbitration, the Enforcement Crisis, and How Workers Are Fighting Back, May 20, 2019, https://populardemocracy.org/unchecked-corporate-power.

4. Colvin, The Growing Use of Mandatory Arbitration. While this article focuses on employment arbitration, expansions in this realm are part of a much larger phenomenon encompassing a variety of areas of law and policy. For example, individuals also entered into almost three times as many consumer arbitration agreements in 2018 as the total population of the United States. See, for example, Szalai, Imre Stephen, “The Prevalence of Consumer Arbitration Agreements by America's Top Companies,” UC Davis Law Review Online 52 (February 2019): 233–59Google Scholar.

5. Colvin, The Growing Use of Mandatory Arbitration.

6. See, e.g., Kessler, Amalia D., “Arbitration and Americanization: The Paternalism of Progressive Procedural Reform,” Yale Law Journal 124 (2015): 2973–80Google Scholar.

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8. Colvin, Alexander J. S., “An Empirical Study of Employment Arbitration: Case Outcomes and Processes,” Journal of Empirical Legal Studies 8, no. 1 (2011): 5–6, 19CrossRefGoogle Scholar.

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24. Patashnik, Eric M., Reforms at Risk: What Happens After Major Policy Changes Are Enacted (Princeton, NJ: Princeton University Press, 2008), 33Google Scholar.

25. Ibid.

26. See, e.g., Farhang, The Litigation State and Frymer, Black and Blue.

27. Rocco, Philip and Thurston, Chloe, “From Metaphors to Measures: Observable Indicators of Gradual Institutional Change,” Journal of Public Policy 34, no. 1 (2014): 40Google Scholar.

28. Hearings on S. 4213 and 4214 before the Committee on the Judiciary, U.S. Senate, 67th Congress, 4th Sess., January 31, 1923, 203.

29. Stevens, John Austin Jr., Colonial Records of the New York Chamber of Commerce, 1768–1784, (New York: John F. Trow, 1867), 8Google Scholar.

30. For an extensive discussion of the early development of commercial arbitration, see Szalai, Imre, Outsourcing Justice: The Rise of Modern Arbitration Laws in America (Durham, NC: Carolina Academic Press, 2013)Google Scholar.

31. Arbitration Law, 1920 N.Y. Laws 803, codified as amended at N.Y.C.P.L.R. 7501–14.

32. See, e.g., Orren, Karen, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (New York: Cambridge University Press, 1992)Google Scholar; Schreiber, Herbert, “The Majority Preference Provisions in Early State Labor Arbitration Statutes—1880–1900,” American Journal of Legal History 15, no. 3 (July 1971): 186–98CrossRefGoogle Scholar.

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34. See Chamber of Commerce of the State of New York, Monthly Bulletin (1911): 47.

35. Stone, “Employment Arbitration.”

36. See, e.g., Bernheimer, Charles L., “The Advantages of Arbitration Procedure,” Annals of the American Academy of Political and Social Science 124 (March 1926); 98–104CrossRefGoogle Scholar.

37. Ibid., 98–99.

38. Szalai, Outsourcing Justice, 138.

39. See Statement of Alexander Rose, “Bills to Make Valid and Enforceable Written Provisions or Agreements for Arbitration of Disputes Arising out of Contracts, Maritime Transactions, or Commerce among the States or Territories or with Foreign Nations,” Joint Hearings on S. 1005 and H.R. 646 before the Subcommittees of the Committees on the Judiciary, 68th Congress, 1st Sess. 6, 1924, 26–27.

40. Ibid., “Statement of W. W. Nichols,” 36.

41. H.R. Report No. 96, 68th Congress, 1st Sess., 1924.

42. Mr. Sterling, Committee on the Judiciary, “To Make Valid and Enforceable Certain Agreements for Arbitration,” 68th Congress, 1st Sess., Senate, Report No. 536 (May 14, 1924). See Wigner, Preston Douglas, “The United States Supreme Court's Expansive Approach to the Federal Arbitration Act; a Look at the Past, Present, and Future of Section 2,” University of Richmond Law Review 29 (1995): 1499–1554Google Scholar.

43. “Arbitration of Interstate Commercial Disputes,” Joint Hearings before the Subcommittees of the Committees on the Judiciary, 68th Congress, 1st Sess., (January 9, 1924).

44. Ibid., 15 and 13.

45. Ibid., 15.

46. Congressional Record 65 (February 5, 1924), 1960.

47. Graham, Congressional Record 66 (1925), 3003.

48. The law clearly sought to preserve some measure of judicial review of arbitration outcomes. Although its primary intention was to put arbitration on equal ground with other types of contracts, thereby requiring judicial deference, there are grounds in the FAA for courts to vacate an arbitrator's award. Specifically, Sections 10 and 11 of the law define when judges can vacate and/or modify an award. While review of an arbitration award on matters “affecting the merits” of a dispute is not allowed by the FAA, it does give courts the authority to weigh in where a contract or arbitrator's decision involves “corruption,” “fraud,” or “undue means.”

49. “Seamen Condemn Arbitration Bill,” New York Times, January 14, 1923.

50. Comsti, Carmen, “A Metamorphosis: How Forced Arbitration Arrived in the Workplace,” Berkeley Journal of Employment & Labor Law 35, no. 1 and 2 (2014): 12Google Scholar.

51. We might also have expected arbitration's conversion by the private sector due to what Bruno Palier describes as “path-shifting reforms” that originate from what he calls decisions based on ambiguous agreements. See Palier, Bruno, “Ambiguous Agreement, Cumulative Change: French Social Policy in the 1990s,” in Beyond Continuity: Institutional Change in Advanced Political Economies, ed. Streeck, Wolfgang and Thelen, Kathleen (New York: Oxford University Press, 2005), 127–44Google Scholar.

52. Gross, Jill J., “Justice Scalia's Hat Trick and the Supreme Court's Flawed Understanding of Twenty-First Century Arbitration,” Brooklyn Law Review 81, no. 1 (2015): 118Google Scholar.

53. Resnik, Judith, “Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights,” Yale Law Journal 124, no. 8 (2015), 2804–2939Google Scholar.

54. See, e.g., Fink, Leon, “American Labor Justice and the Problem of Trade Union Legitimacy” in Labor Justice Across the Americas, ed. Fink, Leon and Manuel, Juan Palacio (Urbana: University of Illinois Press, 2018), 49–55Google Scholar; Schreiber, “The Majority Preference Provisions,” 186–98.

55. Early statutes made no distinction between commercial and labor arbitration. Both were designed to overcome common-law disabilities in enforcement of agreements.

56. Wright, Carroll D., Industrial Conciliation and Arbitration: Compiled from Material in the Possession of the Massachusetts Bureau of Statistics of Labor, by Direction of the Massachusetts Legislature, Chapter 43 (Boston: Rand, Avery, 1881), 53Google Scholar.

57. Ibid., 12.

58. Ibid., 108.

59. Ibid., 319.

60. Ely, Richard T., “Arbitration,” The North American Review 143 (October 1886): 327Google Scholar.

61. Ibid.

62. For an extended discussion, see Barrett, Jerome T., with Barrett, Joseph P., A History of Alternative Dispute Resolution: The Story of a Political, Cultural, and Social Movement (San Francisco: Wiley, 2004)Google Scholar.

63. Senate Committee on Education and Labor, “Relations between Labor and Capital,” vols. 1–4, testimony (various dates, 1883), 1:22.

64. Ibid., 22–23.

65. Ibid., 23.

66. Ibid., 85.

67. T. V. Powderly, “The Organization of Labor,” The North American Review 135 (August 1882): 118–26.

68. Ibid., 123.

69. Senate Committee on Education and Labor, “Relations Between Labor and Capital,” testimony (September 22, 1883), 2:805.

70. Ibid., 811.

71. Congressional Record (March 31, 1886), 2959–81.

72. “Investigation of Labor Troubles in Missouri, Arkansas, Kansas, Texas, and Illinois,” House Committee on Existing Labor Troubles, Congressional Record (April 10, 1886), XI. Ibid., 17.

73. Congressional Record (March 31, 1886), 2979.

74. Ibid., 2959.

75. Ibid., 2960. Terence Powderly, the head of the Knights of Labor, preferred a private binding arbitration between the union and the railroad, with three members each from the union and the railroad, and the six then agreeing to pick a seventh member, believing the proposed congressional legislation to be an insufficient solution to the specific conflict. “Investigation of Labor Troubles in Missouri, Arkansas, Kansas, Texas, and Illinois,” 17.

76. Ibid., 2962–63.

77. Ibid., April 23, 1886, p. 3761.

78. Ibid., 3761.

79. Congressional Record (April 18, 1888), 3099–3109.

80. Quoted in Fink, “American Labor Justice”, 49–55, 53.

81. Ibid., 50.

82. U.S. Strike Commission, “Report on the Chicago Strike of June-July 1894,” 53rd Congress, 3rd Session, Senate, Ex. Doc., 7 (December 10,1894), xxviii.

83. “Address of Samuel Gompers,” Advocate of the Peace 59 (April 1897): 88.

84. Tomlins, Christopher, The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880–1960 (New York: Cambridge University Press, 1985), 85Google Scholar.

85. See generally Staszak, No Day in Court.

86. See Stone, Katherine W. V., “The Steelworkers Trilogy and the Evolution of Labor Arbitration” in Labor Law Stories, ed. Cooper, Laura and Fisk, Catherine (Saint Paul, MN: Foundation Press, 2005), 149–90Google Scholar.

87. Ibid., 9. See also Atleson, James, Labor and the Wartime State: The Continuing Impact of Labor Relations During World War II (Champaign, IL: University of Illinois Press, 1998), 97–103Google Scholar; Nolan, Dennis R. and Abrams, Roger I., “American Labor Arbitration: The Maturing Years,” University of Florida Law Review 35 (1983): 557, 564–69)Google Scholar.

88. Statement of William H. Davis, Chairman Special Committee on the Government and Labor of the Twentieth Century Fund to the Senate Committee on Education and Labor, National Labor Relations Board, pt. 3 (March 21, 1935), 717.

89. Ibid., 330 and 328.

90. Labor Disputes Act, House Committee on Labor (March 13, 1935), 234–35.

91. 29 U.S.C. § 185(a) (2002).

92. see Stone, Katherine V. W., “The Post-War Paradigm in American Labor Law,” Yale Law Journal 90 (1981): 1509Google Scholar.

93. Textile Workers v. Lincoln Mills, 353 U.S. 547 (1957).

94. Ibid., Brief for Petitioner, 8.

95. Steelworkers v. American Manufacturing Co., 363 U.S. 564 (1960); Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960). See too, Schiller, Reuel, Forging Rivals: Race, Class, Law, and the Collapse of Postwar Liberalism (New York: Cambridge University Press, 2015), 140–43CrossRefGoogle Scholar; Stone, “The Steelworkers Trilogy,” 149–90; Tomlins, The State and the Unions, 321–22.

96. Stone, Katherine V. W., “Procedure, Substance, and Power: Collective Litigation and Arbitration under the Labor Law,” UCLA Law Review Discourse 61, no. 164 (2013): 36–38Google Scholar.

97. Warrior & Gulf, 580.

98. “Report of the Special Committee on Administrative Law,” Annual Report of the ABA 63 (1938): 331Google Scholar.

99. See, e.g., Abel, Richard L., The Politics of Informal Justice (New York: Academic Press, 1982)Google Scholar; Cover, Robert M., “The Origins of Judicial Activism in the Protection of Minorities,” Yale Law Journal 91, no. 7 (1982): 1287–1316CrossRefGoogle Scholar; Fiss, Owen, “Against Settlement,” Yale Law Journal 93 (1984): 1073–90CrossRefGoogle Scholar; Merry, Sally Engle, “Disputing without Culture: Review Essay of Dispute Resolution,” Harvard Law Review 100 (1987): 2057–73CrossRefGoogle Scholar; Nader, Laura, “Disputing without the Force of Law,” Yale Law Journal 88 (1979): 998–1021CrossRefGoogle Scholar.

100. Frymer, Black and Blue.

101. Gould, William B., “Labor Arbitration of Grievances Involving Racial Discrimination,” University of Pennsylvania Law Review 118 (1969): 40–68CrossRefGoogle Scholar.

102. See, e.g., Chen, Anthony S., The Fifth Freedom: Jobs, Politics, and Civil Rights in the United States, 1941–1972 (Princeton, NJ: Princeton University Press, 2009)Google Scholar; Frymer, Paul, “Acting When Elected Officials Won't: Federal Courts and Civil Rights Enforcement in U.S. Labor Unions, 1935–1985,” American Political Science Review 97, no. 3 (2003): 483–99CrossRefGoogle Scholar; Lee, Sophia Z., The Workplace Constitution from the New Deal to the New Right (New York: Cambridge University Press, 2014)CrossRefGoogle Scholar; Schiller, Forging Rivals; Skrentny, John D., The Minority Rights Revolution (Cambridge, MA: Harvard University Press 2002)Google Scholar.

103. See Skrentny, The Minority Rights Revolution.

104. Employment rights statutes continued to proliferate in the years after the CRA. The Pregnancy Discrimination Act (1978) and the Family Medical Leave Act (1993) provide rights against sex discrimination when it comes to pregnancy and childbirth as well as set forth requirements governing leave for pregnancy and related conditions, respectively. The Black Lung Benefits Act of 1973 prohibits discrimination against miners who suffer from the disease; the Vietnam Era Readjustment Act of 1974 requires affirmative action for disabled Vietnam veterans by federal contractors; the Bankruptcy Act of 1978 prohibits employment discrimination on the basis of bankruptcy or bad debts; the Immigration Reform and Control Act of 1986 prohibits employers with more than three employees from discriminating against anyone (except unauthorized immigrants) on the basis of national origin or citizenship; and the Genetic Information Nondiscrimination Act of 2008 bars employers from using individuals’ genetic information when making hiring, firing, job placement, or promotion decisions.

105. See, e.g., Farhang, The Litigation State; Frymer, Black and Blue; Lieberman, Robert C., “Ideas, Institutions, and Political Order: Explaining Institutional Change, American Political Science Review 96, no. 4 (2002): 697–712CrossRefGoogle Scholar.

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107. Houseman, Alan W., “Legal Services and Equal Justice for the Poor: Some Thoughts on Our Future,” NLADA Briefcase 35, no. 2 (1978): 44–49, 56–64Google Scholar.

108. See Edelman, Lauren, Working Law: Courts, Corporations, and Symbolic Civil Rights (Chicago: University of Chicago Press, 2016)Google Scholar; Edelman, Lauren, “Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law,” American Journal of Sociology 97, no. 6 (May 1992): 1531–76CrossRefGoogle Scholar; Edelman, Lauren B., Erlanger, Howard S., and Lande, John, “Internal Dispute Resolution: The Transformation of Civil Rights in the Workplace,” Law and Society Review 27, no. 3 (1993): 497–534CrossRefGoogle Scholar.

109. See, e.g., for the Under Secretary, October 10, 1972, Arbitration: Records of the Assistant Secretary of Labor for Policy, Evaluation, and Research, Michael H. Moskow, 1972–74, A1 17, RG 174 General Records of the Department of Labor, National Archives, College Park, MD; Arbitration: Current Issues, Office of Policy Development, ASPER, July 10, 1972, Records of the Assistant Secretary of Labor for Policy, Evaluation, and Research, Michael H. Moskow, 1972–74, A1 17, RG 174 General Records of the Department of Labor, National Archives, College Park, MD.

110. Correspondence from Michael H. Moskow to Harry C. Herman, October 17, 1972, Arbitration: Records of the Assistant Secretary of Labor for Policy, Evaluation, and Research, Michael H. Moskow, 1972–74, A1 17, RG 174 General Records of the Department of Labor, National Archives, College Park, MD; Arbitration: Current Issues, Office of Policy Development, ASPER, July 10, 1972, Records of the Assistant Secretary of Labor for Policy, Evaluation, and Research, Michael H. Moskow, 1972–74, A1 17, RG 174 General Records of the Department of Labor, National Archives, College Park, MD.

111. Correspondence from Michael H. Moskow to Harry C. Herman, October 17, 1972, 7–8.

112. Ibid., 9.

113. Ibid., 8.

114. Ibid., 13.

115. “State of the Judiciary and Access to Justice Act,” Hearings before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice, House of Representatives, 95th Congress, 1st Sess., June 20, 1977, p. 12.

116. Ibid., 47.

117. Ibid., 251.

118. “Court-Annexed Arbitration Act of 1978,” Committee on the Judiciary, U.S. Senate, Report No. 95-1103 to Accompany S. 2253, 95th Congress, 2nd Sess., August 10, 1978.

119. “Access to Justice,” Hearings before the Judiciary Committee, U.S. Senate, 96th Congress, 1st Sess., February 13 and 27, 1979, p. 1.

120. Ibid., 38.

121. Staszak, No Day in Court, 64–66.

122. Ford Foundation Grants, Bay Area Lawyers for the Arts, 1980–81, https://dimes.rockarch.org/xtf/view?docId=ead/FA732A/FA732A.xml;chunk.id=d17d1a88d2c3147f266da83c3aaa54e8;brand=default;query=bay%20area%20lawyers%20for%20the%20arts&doc.view=contents.

123. “Access to Justice” (1979), 9.

124. P.L. 101-648 and 552, respectively.

125. P.L. 101-650.

126. “The Civil Justice Reform Act and Judicial Improvements Act of 1990,” Hearings before the Committee on the Judiciary, U.S. Senate, 101st Congress, 2nd Sess. (March 6, 1990), 3.

127. Gilmer v. Interstate/Johnson Corp., 500 U.S. 20 (1991).

128. See Farhang, The Litigation State, pp. 173–78. He discusses the Reagan Administration and EEOC treatment of Title VII.

129. See Wards Cove Packing Co. v. Antonio, 490 U.S. 642 (1989); Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Martin v. Wilks, 490 U.S. 755 (1989); Lorance v. AT&T Technologies, Inc., 490 U.S. 900 (1989); and Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754 (1989).

130. Wards Cove Packing Co.

131. House Report 101-644, Part 2 on H.R. 4000, The Civil Rights Act of 1990, July 31, 1990, p. 72, citing Testimony of Professor Jeremy Rabkin, Hearings on H.R. 4000, pp. 409–10.

132. Ibid., 170.

133. Ibid., 195 (comments of Larry Daves, civil rights lawyer).

134. “Civil Rights Acts,” House Reports 102-40, Part 2, 102nd Congress, 1st Sess., May 7, 1991, p. 41.

135. Ibid., 71–78.

136. Ibid.

137. Seth Faison Jr., “Rash of Suits Seen after Rights Act,” New York Times, November 30, 1991, A1.

138. U.S. General Accounting Office, “Alternative Dispute Resolution: Employers’ Experiences with ADR in the Workplace” (August 1997), 9, https://www.gao.gov/assets/230/224517.pdf.

139. Ibid.; Peter T. Kilborn, “Age Bias Case Could Limit Right of Workers to Sue,” New York Times, March 25, 1991, A1; Barbara Presley Noble, “New Questions about Arbitration,” New York Times, June 14, 1992, 112; Steven A. Holmes, “Some Employees Lose Right to Sue for Bias at Work,” New York Times, March 18, 1994, A1.

140. See U.S. General Accounting Office, “Employment Discrimination: Most Private-Sector Employers Use Alternative Dispute Resolution,” GAO/HEHS-95-150 (July 5, 1995), https://www.gao.gov/assets/230/221397.pdf; Colvin, A. J. S., Adoption and Use of Dispute Resolution Procedures in the Nonunion Workplace (Ithaca, NY: Cornell University ILR School, 2004)CrossRefGoogle Scholar; David Lewin, “Employee Voice and Mutual Gains,” LERA 60th Annual Proceedings (2008): 61–83.

141. U.S. General Accounting Office, “Employment Discrimination.”

142. Colvin, “An Empirical Study of Employment Arbitration.”

143. Alexander Colvin and Kelly Pike, “The Impact of Case and Arbitrator Characteristics on Employment Arbitration Outcomes” (paper presented at the annual meeting of the National Academy of Arbitrators, Minneapolis, MN, June 2012), https://digitalcommons.ilr.cornell.edu/conference/22/.

144. On the “repeat player” effect, see Galanter, Marc, “Do the ‘Haves’ Come Out Ahead? Speculations on the Limits of Legal Change,” Law and Society Review 9 (1974): 95–160CrossRefGoogle Scholar.

145. There are several studies illustrating the empirical validity of the repeat player effect in arbitration. The most recent include Chandrasekher and Horton, “Arbitration Nation”; Horton, David and Chandrasekher, Andrea Cann, “After the Revolution: An Empirical Study of Consumer Arbitration,” Georgetown Law Journal 104 (2015): 57Google Scholar; Colvin, The Growing Use of Mandatory Arbitration; Colvin, Alexander and Gough, Marc D., “Individual Employment Rights Arbitration in the United States: Actors and Outcomes,” Industrial and Labor Relations Review 68, no. 5 (2015): 1019–42CrossRefGoogle Scholar.

146. Estlund, Cynthia L., “The Black Hole of Mandatory Arbitration,” North Carolina Law Review 96 (2018): 679Google Scholar.

147. Notably, all of these executive orders were reversed by President Trump in the early months of his administration.

148. U.S. Commission on the Future of Worker-Management Relations, The Dunlop Commission of the Future of Worker-Management Relations, Final Report (December 1, 1994), 49, https://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1004&context=key_workplace.

149. Ibid., 50.

150. Ibid., 54.

151. Ibid., 53–58.

152. Ibid., 52.

153. Office of General Counsel Guidance on Civil Justice Reform, Executive Order No. 12988, EEOC (February 7, 1996), https://www.eeoc.gov/eeoc/litigation/manual/3-1-a_eo_civil_justice_guidance.cfm. Bush's previous order was Executive Order 12778.

154. U.S. General Accounting Office, “Employment Discrimination”; Ibid., 4.

155. “Comments of the Women's Legal Defense Fund in Response to EEOC Request for Comments on the Use of Alternative Dispute Resolution,” Women's Legal Defense Fund, September 20, 1993, Records of Commissioner Paul Miller 1993–2005, A1 31, RG 403 Equal Employment Opportunity Commission, National Archives, College Park, MD.

156. “Statement of the Women's Legal Defense Fund on Alternative Dispute Resolution,” Women's Legal Defense Fund, February 9, 1995, Records of Commissioner Paul Miller 1993–2005, A1 31, RG 403 Equal Employment Opportunity Commission, National Archives, College Park, MD.

157. 534 U.S. 279 (2002).

158. McLeod v. General Mills, 140 F.Supp.3d (D. Minn. 2015), in P. David Lopez, U.S. Equal Employment Opportunity Commission, Office of General Counsel Fiscal Year 2016 Annual Report (Washington, DC: EEOC), https://www.eeoc.gov/eeoc/litigation/reports/upload/16annrpt.pdf.

159. U.S. Equal Employment Opportunity Commission, Policy Statement on Mandatory Binding Arbitration of Employment Discrimination Disputes as a Condition of Employment (2 EEOC Compliance Manual, BNA no. 915.002, July 10, 1997), pp. at 281–87, https://www.eeoc.gov/policy/docs/mandarb.html.

160. Ibid.

161. “Race-Race Initiative Policy-Civil Rights Enforcement [2],” in Elena Kagan's Domestic Policy Council Files, box 41, folder 12, Clinton Presidential Records: White House Staff and Office Files, 2009-1006-F.

162. “Can Federal Government Enter into Binding Arbitration,” in Civil Justice Reform EO [2], Office of the Counsel to the President, 2009-1006-F, Clinton Presidential Records: White House Staff and Office Files.

163. Claire Gonzales to Sylvia M. Mathews/WHO/EOP, Thomas L. Freedman/ODP/EOP, “EEOC Funding Talking Point,” January 29, 1998, and “Memorandum from Tom Freedman, Mary L. Smith to Elena Kagan, Re: EEOC Proposed Rule for Federal Agencies,” January 6, 1998 in Civil Justice Reform EO [2], Office of the Counsel to the President, 2009-1006-F, Clinton Presidential Records: White House Staff and Office Files.

164. “New Civil Rights Enforcement Initiative,” January 19, 1998, Civil Justice Reform EO [2], Office of the Counsel to the President, 2009-1006-F, Clinton Presidential Records: White House Staff and Office Files.

165. Memorandum: To Marvin Krislov from Alan M. Freeman, Re: Administration Proposals to Modify HR 2721: The Federal Employee Fairness Act of 1993, Domestic Policy Council Files, box 10, Clinton Presidential Records: White House Staff and Office Files, Clinton Presidential Records.

166. See, e.g., Equal Employment Advisory Council to John Morall, Office of Information and Regulatory Affairs, Office of Management and Budget, May 28, 2002, https://georgewbush-whitehouse.archives.gov/omb/inforeg/comments/comment2.pdf.

167. Ibid.

168. U.S. Equal Employment Opportunity Commission, Office of General Council Fiscal Year 2003 Annual Report, https://www.eeoc.gov/eeoc/litigation/reports/03annrpt/.

169. “Recission of Mandatory Binding Arbitration of Employment Discrimination Disputes as a Condition of Employment,” U.S. Equal Employment Opportunity Commission, December 16, 2019, https://www.eeoc.gov/wysk/recission-mandatory-binding-arbitration-employment-discrimination-disputes-condition

170. Comsti, “A Metamorphosis,” 19.

171. See Zack, Arnold M., “Agreements to Arbitrate and the Waiver of Rights under Employment Law,” in Employment Dispute Resolution and Worker Rights in the Changing Workplace, ed. Eaton, Adrienne E. and Keefe, Jeffrey H. (Ithaca, NY: Cornell University Press, 1999), 67–94Google Scholar.

172. For an extended discussion of the treatment of corporations by courts, see Adler, Jonathan H., ed., Business and the Roberts Court (New York: Oxford University Press, 2016)CrossRefGoogle Scholar; Winkler, Adam, We the Corporations: How American Business Won Their Civil Rights (New York: Liveright, 2018)Google Scholar.

173. It is important to note that the Court has also altered relevant aspects of contract law in order to accomplish these ends. These changes are more relevant to the law of commercial and consumer arbitration, but some—like doctrines governing “contracts of adhesion,” for example—apply to contracts of employment as well.

174. For a larger discussion of the conservative turn of law in the workplace, see Lee, The Workplace Constitution.

175. See, e.g., Resnik, “Diffusing Disputes.”

176. 9 U.S.C. § 2 (2012).

177. Gross, “Justice Scalia's Hat Trick,” 123.

178. See EEOC v. Waffle House, Inc., 534 U.S. 279 (2002), Thomas dissenting.

179. 460 U.S. 1 (1983).

180. 465 U.S. 1 (1984).

181. 473 U.S. 614 (1985).

182. Ibid., 628.

183. See, e.g., Bales, Richard A., Compulsory Arbitration: The Grand Experiment in Employment (Ithaca, NY: Cornell University Press 1997)CrossRefGoogle Scholar.

184. Ibid., 628.

185. 415 U.S. 36 (1974).

186. 450 U.S. 728 (1981).

187. Ibid., 950.

188. The Court also addressed this in another case in 1981 (McDonald v. City of West Branch, 466 U.S. 728), holding that a labor arbitrator's decision could not restrict an employee from litigating a wrongful discharge claim.

189. Green, Michael Z., “Retaliatory Employment Arbitration,” Berkeley Journal of Employment & Labor Law 35, no. 1–2 (1994): 206–207Google Scholar.

190. 556 U.S. 247 (2009).

191. Brief for the United States as Amicus Curiae Supporting Respondents, No. 07-581, 9.

192. Comsti, “A Metamorphosis,” 13.

193. 561 U.S. 63 (2010).

194. 569 U.S. 564 (2013).

195. Horton and Chandrasekher, “After the Revolution,” 67–68.

196. Brief of the Chamber of Commerce of the United States of America as Amicus Curiae Supporting Petitioner.

197. Horton and Chandrasekher, “After the Revolution,” 70–71.

198. 563 U.S. 533 (2011).

199. 565 U.S. 95 (2012).

200. 570 U.S. 228 (2013).

201. Concepcion, 9.

202. 15 U.S.C. § 1679c— Disclosures.

203. Italian Colors, 1.

204. Gross, “Justice Scalia's Hat Trick,” 132.

205. 586 U.S. (2019).

206. Henry Schein, Inc. v. Archer and White Sales, Inc., 586 U.S. (2019).

207. 586 U.S. (2019).

208. Ian Millhiser, “DoorDash's Anti-Worker Tactics Just Backfired Spectacularly,” Vox, February 12, 2020, https://www.vox.com/2020/2/12/21133486/doordash-workers-10-million-forced-arbitration-class-action-supreme-court-backfired.

209. Terrell Abernathy, et al., v. DoorDash Inc., United States District Court, Northern District of California, No. C 19-07545 WHA.

210. Ibid., 7.

211. Ibid., 8.

212. Democrats in Congress have proposed some version of an “Arbitration Fairness Act” in almost every session since 2001, to no avail.

213. For example, New York has enacted one bill and has two more currently in committee, all of which prohibit mandatory arbitration provisions in contracts relating to allegations of sexual harassment. South Carolina is currently considering the “Ending Forced Arbitration of Sexual Harassment Act of 2018,” that provides “no predispute arbitration agreement is valid or enforceable if it requires arbitration of a sex discrimination dispute.”

214. For example, see Rachel Deutsch, Rey Fuentes, and Tia Koonse, “California's Hero Labor Law: The Private Attorneys General Act Fights Wage Theft and Recovers Millions for Lawbreaking Corporations,” Center for Popular Democracy, February 2020, https://populardemocracy.org/sites/default/files/PAGA%20Report_WEB.pdf.

215. Sejal Singh and Andre Manuel, “Harvard Law Students Are Taking on Forced Arbitration,” The Nation, April 15, 2019.

216. S. 610, 116th Congress, 1st Sess., introduced February 28, 2019. Democrats in the House have also introduced a bill that would end forced arbitration of sexual harassment claims (H.E. 1443) and one that would end forced arbitration for victims of data breaches (H.R. 327).

217. Winkler discusses this agenda at length in We the Corporations.