Arbitration’s Arbitrage: Social Solidarity at the Nexus of Adjudication and Contract

value from its particular concrete content."). 102. This process is familiar from everyday experience; it is reflected, for example, in the wellknown fact that protections against employment discrimination (a practice at odds with the impersonal logic of market-based recognition) form a leading edge of popular support for gay rights quite generally. See Lydia Saad, Tolerance for Gay Rights at a High-Water Mark, GALLUP NEWS SERVICE, May 29, 2007, http://www.gallup.com/pollI27694/Tolerance-Gay-Rights-HighWater-Mark.aspx (noting that 89% of Americans believe that homosexuals should have "equal rights in terms of job opportunities" while 47% believe that "homosexual relations are morally acceptable" and 46% believe that same-sex marriages should be "legally valid"). [Vol. 59:431 HeinOnline -59 DePaul L. Rev. 468 2009-2010 ARBITRATION'S ARBITRAGE that increases injustice. Not everything goes, of course, and doctrines concerning fraud, duress, and even unconscionability limit the injustice that contracts may create. But our contractual practice-through its clear commitment to a background norm of freedom of contractinsists that contractual obligation does not depend on setting the world right before contracts are made or improving the world through contracting, but can instead arise as equally in non-ideal as in ideal contracting. Contract, it seems, possesses the power to launder injustice, creating legitimate entitlements between parties where previously there were none and, moreover, inducing the parties to recognize these entitlements. 10 3 Accordingly, one important reason why markets support social integration is that contract-the substrate through which markets arise-is itself an integrative practice. C. Arbitration Between Adjudication and Contract Adjudication and contract each establish patterns of reciprocal recognition that express human sociability, and they thus constitute solidaristic practices. But there is a difference between the paths to recognition that the two practices set out and hence the mechanisms by which the two practices generate solidarity. Adjudicative solidarity employs an intensive, transformative process in order to draw disputants into reciprocal recognition and into the shared perspective that such recognition establishes, even when the disputants do not intend to engage one another in this way, and indeed to induce them to recognize each other against their initial intentions. Contractual solidarity, by contrast, must itself be directly intended by those who participate in the contract, even if they are motivated not by solidarity but rather by self-interest. These accounts of adjudication and contract cast doubt over the two common assumptions concerning arbitration from which I began. The second assumption is simply mistaken: adjudication and contract are not generically different. Both legal orders belong to the genus of solidaristic social and legal practices through which open, complex societies sustain stable integration in the face of the myriad competing aims that they invite citizens to pursue. Adjudication and contract differ only in a narrower respect, that is, in the manner in which they engen103. Freedom of contract is an essential ingredient in contract's capacity to launder injustice. The current uproar over the bonuses paid to American International Group, Inc. (AIG) executives, pursuant to ordinarily binding contracts, reflects the fact that once AIG became in effect publicly owned, it lost the freedom of contract that private firms ordinarily enjoy, so that its contracts became subject to scrutiny based on political ideals, for example of fundamental fairness. 20 1 HeinOnline -59 DePaul L. Rev. 469 2009-2010