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4 Nev. L.J. F. 1 (2020)

handle is hein.journals/nvljform4 and id is 1 raw text is: FINDING LIGHT IN ARBITRATION'S DARK SHADOW Nicole G. Iannarone* INTRODUCTION In Arbitration's Dark Shadow, Professor Benjamin P. Edwards outlines harms arising from industry-wide adoption of pre-dispute arbitration agree- ments (PDAAs) that remove certain classes of disputes between sophisticated repeat players and consumers with little to no bargaining power from state and federal courts.' Edwards discusses the lack of transparency when PDAAs are used, leading to informational asymmetries skewed against consumers.2 He de- scribes arbitrators who do not apply law, and the unfortunate phenomenon where law ceases to further develop in industries where arbitration is the prima- ry means of dispute resolution.3 Edwards concludes by suggesting regulatory intervention on behalf of consumer interests as a solution for addressing the harms arising from industry-wide PDAAs.4 Edwards' bleak picture focuses on the dark. But at the edges of the shadow arbitration casts over consumer disputes, a bit of light glimmers. This short es- say in response to Arbitration's Dark Shadow examines the light visible at the borders of mandatory arbitration's shadow in one industry Professor Ed- wards highlights - securities disputes between an investor customer and a bro- ker-dealer.5 Though Edwards is correct that mandatory arbitration is often a black box emmeshed in shadow, the few instances where light exists in the form of public data should be highlighted, examined, and studied. We should not close our eyes in the dark. Instead, we should adjust to lessened light and determine what we can learn from the information we can see. This short essay begins by describing the publicly available information made available by the Financial Industry Regulatory Authority (FINRA) about * Nicole G. Iannarone, assistant professor of law, Drexel University Thomas R. Kline School of Law. i Benjamin P. Edwards, Arbitration's Dark Shadow, 18 NEV. L. J. 427, 428 (2018). 2 Id. at 431 (Importantly, arbitration also often removes the frequency, type, and result of disputes from the public eye, undercutting reputation's ability to police market behavior); see also id. (Arbitration and private dispute resolution remove a discovery and broadcast channel for reputational information, making it less likely that non-legal market forces will deter misbehavior.). 3 Id. at 432-434. 4 Id. at 435 (Lifting this shadow may require federal intervention to lessen industries' abil- ity to impose arbitration on nearly all consumers.). s Id. at 430 (arbitration agreements also cover nearly all brokerage industry contracts). 1

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