Even more disturbing, the shift away from the civil justice system has gone beyond disputes about money. Nursing homes, obstetrics practices and private schools increasingly use forced-arbitration clauses to shield themselves from being taken to court over alleged discrimination, elder abuse, fraud, hate crimes, medical malpractice and wrongful death.
For the most part, Congress has looked the other way. Federal regulators, however, are starting to fight back. The Consumer Financial Protection Bureau is expected to propose a rule soon to forbid arbitration clauses that ban class actions in cases involving financial services and products. The Centers for Medicare and Medicaid Services, which is expected to issue updated nursing home regulations next year, is considering a ban on forced arbitration clauses in nursing home contracts.
Reversing the broader trend of forced arbitration, however, will require public outcry loud and long enough to stir the White House and Congress to action. Many people interviewed in The Times’s series did not realize that their right to sue had been lost until they needed it. A common refrain was the disbelief that this could happen in America. But it is happening, and it needs to stop.
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