Whose Ledger Is Really Red? Confidential Arbitration Killed the Black Widow

Authors

Daniel Charles Smolsky

Abstract

After filing a complaint against the Walt Disney Company in July 2021, Scarlett Johansson ensured that she would follow through with litigation to protect other Hollywood talent. Despite that assurance, Johansson settled her suit with Disney only sixty-three days after filing her complaint. This Article explores what Johansson's shockingly swift settlement reveals about not only the entertainment industry, but the majority of modern employment disputes. Did Disney abuse its power and intentionally sacrifice box-office profits at Johansson's expense, or did Johansson leverage her public influence to compel an unwarranted settlement? Whose ledger is really red and perhaps more importantly why is that ledger red?

This Article concludes that one of the largest problems with modern employment contracts is binding predispute arbitration, a practice that has become so ubiquitous that such clauses are practically non-negotiable. The strength of binding arbitration has only been reinforced by the U.S. Supreme Court, which has consistently refused to allow states to pass laws which interfere with the fundamental attributes of arbitration under the Federal Arbitration Act (FAA). Because the Court has recognized that arbitration agreements may absolutely preclude judicial remedies, this Article proposes two solutions that aim to address arbitration's biggest problems without violating federal law.

First, Congress should enact the Forced Arbitration Injustice Repeal Act to ban predispute arbitration. This change would not only protect Hollywood talent, but also provide additional safeguards to the vast majority of American employees that are subject to such agreements. Second, the California General Assembly and other state legislatures could minimize the disadvantages of predispute arbitration by requiring arbiters to publish their findings unless mutually agreed upon by both parties after a dispute arises. This change would serve to quell some of arbitration's largest problems without infringing on its 'fundamental attributes" as recognized by the U.S. Supreme Court.

First Page

229

Recommended Citation

Daniel C. Smolsky, Whose Ledger Is Really Red? Confidential Arbitration Killed the Black Widow, 61 Duq. L. Rev. 229 (2023).
Available at: https://dsc.duq.edu/dlr/vol61/iss2/5