Understanding the American political economy requires recognizing that political conflict in the United States unfolds iteratively in the context of a complex multi-level, multi-venue political landscape. In this landscape, courts play an enormously important role in shaping political-economic outcomes. Sarah Staszak’s new book, Privatizing Justice, provides a powerful illustration of these points. In it, she traces the evolution of mandatory arbitration from its benign origins as a voluntary system for efficiently resolving disputes to a powerful weapon deployed by corporations to insulate themselves from regulation and legal liability by forcing weaker parties to sign away their rights.
For most Americans, and indeed for most scholars of American politics, the role of the courts in politics is a taken-for-granted -- and therefore easily overlooked -- feature of the US system of governance. Yet it stands out as highly distinctive in comparative perspective. The American judiciary is more powerful and more politicized than that in any peer democracy, and it plays a far more central role in the economy. As Robert Kagan pointed out long ago, other rich democracies delegate most administration and policy implementation to professional bureaucracies, corporatist institutions, or government-appointed expert bodies. The United States, by contrast, “more often relies on courts, lawyers, legal threats, and legal contestation in making and implementing public policies.”
Indeed, the power the courts wield in the American political economy has grown even stronger in the wake of recent Supreme Court rulings that have increasingly invoked the so-called “major questions” doctrine to invalidate the actions of federal agencies that the Court’s majority deems to involve matters of “vast economic and political significance.” This new orientation destabilizes administrative law and as Sabeel Rahman points out, it also effectively “shifts power away from both Congress and the Executive to the Judiciary – the least accountable and democratic of the branches.” The Court delivered a further, direct assault on administrative discretion in its 2024 ruling in Loper Bright Enterprises v. Raimondo. In this case, the Court overturned the ruling of Chevron U.S.A. v. National Resources Defense Council (1984), which had given federal agencies wide latitude to interpret and enforce Congressional statutes. By rejecting the longstanding “Chevron deference” doctrine, Loper Bright endowed the courts with broad powers to scrutinize and potentially overturn agency decisions across virtually all policy areas. Other recent blockbuster cases (notably Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade)stole more of the headlines but the ramifications of Loper Bright and the ongoing consolidation and extension of the “major questions doctrine” will be profound and pervasive.
For many years now, Sarah Staszak has been playing a leading role in bringing developments such as those behind Loper Bright to light. Her first book, No Day in Court details how successive rulings handed down by the courts narrowed the civil rights protections that American citizens enjoy by limiting the scope for remedial action. She documents how small procedural changes, virtually invisible to the public and largely overlooked in the literature, made it increasingly difficult for individuals to vindicate their substantive rights, resulting in what Staszak calls “subterranean retrenchment.” This symposium showcases Staszak’s new book, Privatizing Justice, which again provides key insights into the interaction of politics and the law in the United States, and the way in which incremental changes and obscure, technical legal maneuvers can, over time, produce profound change. Contributions by Jeb Barnes, Julie Novkov, and Alexander Colvin reflect on her analysis and highlight its contributions.
To set the stage, this introduction briefly underscores three of the core insights that flow from the analysis in Privatizing Justice that echo key elements of the American Political Economy framework. (1) The political role and impact of the American judiciary can only be grasped by situating the courts within the broader institutional and political context in which the courts are embedded. (2) As an arena for strategic action, the courts are by no means neutral terrain, but instead play to the strengths of particular types of actors, especially organized business interests. And (3) understanding the political impact of the courts requires a long-term developmental analysis that can capture the ways in which incremental changes, over time, can cumulate into radical transformation. I discuss each of these briefly in turn.
Situating the judiciary in a broader political-institutional context
There is a strong tendency within the field of American politics for research to become siloed, as scholars specialize in specific institutions (e.g., Congress, the states/federalism, the bureaucracy, or the courts). And because Americanists often study institutions in isolation from one another, they rarely consider the connections across these arenas and the patterns of multi-venue contestation that are so characteristic of the American political economy. In Privatizing Justice, Staszak gives us a more holistic view, showing how courts are deeply imbricated in a broader landscape of institutions, interests, and political projects. Indeed, in the United States, the courts form an especially critical node in our multi-level, multi-venue political system because of the ways in which judicial power can be leveraged to constrain or enable other forms of state power – for example, by striking down legislation or by creatively interpreting statutes to narrow or expand their scope.
Staszak emphasizes the need to move beyond analyzing discrete judicial decisions to consider the full cast of characters that play a part in these outcomes – not just judges but legislators, activists, and private interests. Her work situates key court rulings within the broader institutional context, encompassing Congress, administrative agencies, and organized interest associations, which all shape what issues come to the courts, how these issues are framed, and how they are resolved and implemented.
The terrain of the courts is not neutral
As an arena of strategic action, courts are distinctive because the activities and operation of the courts mostly unfolds below the radar for the vast majority of Americans. In contrast to the open clashes of congressional politics, the strategic exercise of influence through the judiciary operates more subtly, cloaked in the guise of neutral, objective legal doctrines and formal legal reasoning. Courts, in other words, are the realm of quiet politics where most of the contests involve low-salience issues that demand high levels of expertise and information. Obscure, arcane technicalities can turn out to be critically important, such that even the media have difficulty grasping their significance and communicating this to the public.
Thus, a second insight that Staszak’s work powerfully underscores is that the courts are an arena for strategic action that favors specific types of players. She shines a spotlight on how obscure procedural and technical aspects of the law, in the hands of well-resourced actors and their skilled legal teams can be strategically deployed and redeployed in the courts. She documents how corporate interests were able to promote and then seize on key decisions(e.g., the Steelworkers trilogy [1960] and, more recently, Epic Systems Corp. v. Lewis [2018]) to vastly expand the reach of mandatory arbitration to evade regulatory constraints and legal liability. As classic “repeat players” in Galanter’s terms (1974), organized business interests have built up the formidable legal capacities that now allow them to use the courts to achieve their objectives outside the glare of public opinion and beyond the reach of public accountability.
The importance of a developmental approach
Staszak’s third key insight is that significant changes in the courts do not materialize all at once but instead take shape gradually and though extended and iterative processes. This is a theme that runs through both of Staszak’s books. The subterranean retrenchment that Staszak documents in No Day in Court was a long-term process that trended in a distinctively conservative, rights-constricting direction. Yet this outcome was not simply the work of conservative jurists with a clear agenda, manipulating rules and procedures to achieve their ends. It was, rather, the outcome of processes that involved a wide range of actors – bureaucrats, activists outside government, and legislators on both sides of the aisle. Importantly, it also unfolded over decades and sometimes in unexpected ways.
Similarly in Privatizing Justice, Staszak does not present the evolution of mandatory arbitration as a tidy, black-and-white, conservative-versus-liberal story. Instead, she teases out the unlikely alliances behind key developments in Congress as well as in the courts, with liberals sometimes joining conservative opinions, though for completely different reasons. She explains the fateful moves that set the stage for powerful interests to exploit new opportunities to use arbitration to shield themselves from regulation and to immunize themselves from litigation. In short, Staszak takes us through the sequence of events, including unanticipated but momentous reversals, as rules and procedures intended to protect the weak were coopted or highjacked and turned to different ends by powerful actors with the resources needed to play the long game. By tracing the many incremental steps over a long period of time she reveals patterns that remain invisible without the kind of long-term analysis she provides.
Contributions of this Symposium
The contributions in this symposium underscore some of the distinctive features and contributions of Staszak’s analysis. Jeb Barnes highlights how Privatizing Justice effectively utilizes Orren and Skowronek’s concept of intercurrence while also advancing our understanding of incremental institutional change by extending and deepening Streeck and Thelen’s arguments about transformation through conversion. Indeed, her analysis documents how, over time, conversion turned arbitration on its head; as he puts it, “what was once voluntary is now mandatory; what was once negotiated between organized interests is now unilaterally imposed by powerful business groups on individuals; what was once narrowly focused on streamlined dispute resolution is now used to curtail statutory and constitutional rights and access to the courts; and what was once part of regulatory regimes is now a means to avoid them and reduce business accountability.” And he builds on Staszak to draw out a new and useful distinction between “reconstructive” and “deconstructive” conversion. The former repurposes existing legal tools for new purposes; the latter disrupts prevailing legal understandings to make room for new practices that are then subsequently enforced by the courts.
Julie Novkov situates Staszak’s analysis of mandatory arbitration in the context of other arrangements for alternative dispute resolution (ADR) in the United States. She notes that many of these arrangements have their roots in the efforts of well-intentioned reformers seeking to enhance transparency and equity. She discusses the use of ADRs in the juvenile justice system, where hybrid public-private arrangements were introduced to reduce pressure on the courts while also providing positive supports for children who ran afoul of the law, to help them develop into productive citizens. The core idea of such programs was not just to mete out justice or administer punishment, but to channel conflicts into pathways for solving broad public policy concerns. Novkov notes that some of these initiatives –while they are far from perfect –have so far largely avoided the kind of capture by corporate or other interests that Staszak documents for arbitration. But she emphasizes that Staszak’s work is a powerful reminder of the pitfalls of relying on forms of alternative dispute resolution that might be coopted by private interests in ways that undermine the public-interest goals they were originally designed to promote.
Finally, Alexander Colvin suggests that some of the features of the American arbitration system as originally designed – flexible and highly adaptable to a wide range of issues -- rendered it especially vulnerable to conversion. His own work has documented the extent to which a system previously widely viewed as legitimate and fair has subsequently evolved toward one that is now heavily biased toward employer interests. He notes that pre-dispute arbitration agreements have spread into an ever-wider range of areas despite efforts to rein in the use of such clauses in a few specific areas.
However, Colvin also points to potential ways forward, looking abroad at other common law countries for insights into alternative systems of dispute resolution that might serve as a model for the United States. Among others, he describes Canada’s public arbitration machinery, which avoids the kind of corporate capture Staszak documents for the United States by relying on expert arbitrators appointed in a publicly accountable way. He also cites the employment tribunals in the United Kingdom – public entities staffed by neutral experts – as a positive example of an easily accessible, more equitable way for workers to have their employment disputes resolved. He reminds us that this kind of publicly accountable system was what was originally envisioned by America’s own progressive reformers, and he sees possibilities for the United States to evolve toward such models through a more positive version of conversion.
Conclusion
In sum, Staszak’s book is a powerful statement on the interaction of law and politics in the United States. The recent overturning of Chevron threatens the ability of the government to regulate almost every aspect of American politics and political economy, and serves as a stark reminder of the outsized role of the judiciary in the American political economy. In light of these developments, Staszak’s work is more important than ever.
