Once upon a time there used to be a clear distinction in the United States between the private sector and the public sector. The public sector included government all levels and the employees who worked in the public sector. The private sector included businesses and corporations that were privately owned.
Similarly, there was a clear distinction between public goods and private goods. Public goods are those services and entitlements supported by taxpayers and include public schools, the military, public safety, roads and public transportation, parks, conservation, Social Security and Medicare, to name just a few. It was also assumed that, because they served the public interest, those services and goods they would were be considered separate and apart from the market economy even if, they provided direct and indirect benefits to the private sector.
By contrast, in a market economy, private goods include those businesses, investments, and real estate for which the owners and shareholders are permitted to speculate and to attempt to maximize their profits and only indirectly, if at all, yield benefits to the public at large.
Historically, government, including the judiciary, have been responsible for the protection and regulation of public goods. Government, especially the judiciary and the administrative law agencies at the federal, state and local level, and have been charged with the responsibility to ensure the equality of access of public goods to the citizens for whom they are intended.
Earlier this week, The New York Times ran a three part series on the increasing use of private arbitration to resolve disputes. The articles are profoundly disturbing because they describe the increasing loss of access to the courts by ordinary citizens, the lack of parity in bargaining power between those employers and corporations who are able to impose arbitration clauses upon employees and consumers, the lack of transparency and judicial review, and the coziness between arbitrators and the corporations that regularly employ their services.
The privatization of the American justice system is part of the trend since the end of the New Deal, but particularly since the advent of the Reagan eras, to privatize and gut the public sector and to turn government into an instrument to promote the interests of the 1%. Witness the proliferation in past four decades for-profit entities that have been granted licenses and contracts to run public prisons, public schools, public transportation networks, and even to provide private operatives and services to the U.S. Department of Defense and the CIA.
The continued decline in this country's investment in public goods is directly attributable to the "market-based" mythology that dominates current American political discourse. That mythology, which extolls unfettered Social Darwinism, seeks to minimize the role of government on the theory that, all evidence to the contrary, government is the enemy of prosperity. Not surprisingly, the advocates of this mythology also deny the notion of a separate public interest or choose to define it, if at all, as merely an aggregation of private interests seeking to maximize their self-interests.
In his insightful book, What Money Can't Buy, Harvard Government Professor Michael Sandel warns that market values have begun to displace all other values in civil society. As the power of the market economy and its arbiters, through their ability to influence discourse in the public square, increasingly call the tunes to which our political leaders feel obliged to dance, human relationships, the legal system, science, and even knowledge itself have become subordinate to short-term economic concerns and preoccupations.
It is only in the context of such a twisted and deformed culture that the federal and state courts could endorse the use of a private arbitration process that circumvents the equal protection of the law and deprives citizens of the right to a trial by jury that one assumes is guaranteed by the Seventh Amendment to the U.S. Constitution.
When the Federal Rules of Civil Procedure were promulgated in 1938 - at the height of the New Deal - they proposed to open the doors of the federal courts and to level the playing field for all litigants. Rule 1 provided that the rules "should be construed and administered to secure the just, speedy and inexpensive determination of every action and procedure."
43 years later, in an age discrimination case, Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), rightwing jurists in the Supreme Court began their continuing efforts to lock the doors of the federal courts to ensure that the powerful and the connected would be protected from the harm of having to defend their actions in a court of law. The court solemnly intoned that "It is by now clear that statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA....Although all statutory claims may not be appropriate for arbitration, '[h]aving made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.'... In this regard, we note that the burden is on Gilmer to show that Congress intended to preclude a waiver of a judicial forum for ADEA claims..... If such an intention exists, it will be discoverable in the text of the ADEA, its legislative history, or an 'inherent conflict' between arbitration and the ADEA's underlying purposes. Throughout such an inquiry, it should be kept in mind that 'questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration.'"
John Adams, the draftsman of the Massachusetts constitution, declared that the "right to a trial by jury...shall be held sacred..." Shouldn't those who profess to be strict-constructionists, original intent advocates and conservatives now have the burden to show whose interests they now serve and why they have strayed so far from the ideas of the Founding Fathers that they profess to revere?