By denying job discrimination claimants access to the courts, the Form U-4's mandatory arbitration requirement frustrates our achievement of these objectives in several ways. In contrast, arbitration too often muzzles public dialogue. Second, written, public, reviewable decisions by an independent judiciary have proven essential to the development of civil rights case law. These key legal developments were made possible because we had a public, rather than a private, judicial system for deciding job discrimination cases. Third, written, public, reviewable decisions that explain the decisionmaker's factual findings and legal analysis are most likely to ensure the correct decision in any given case.
Judicial opinions are, of course, subject to appellate review for error.
As a result, discrimination victims forced into mandatory arbitration have little assurance that their claims will be decided accurately under the law. Fourth, discrimination victims depend on judicial enforcement of a range of protections that arbitrators are not required to respect. Again, arbitrators' ability and willingness to fashion such relief has proven inherently limited. By allowing defendants and forcing plaintiffs to bypass an independent judiciary for resolution of job discrimination claims, the Form U-4 undermines basic civil rights protections and invites skepticism about the industry's commitment to fairness and openness. Cooper, supra note 1, at 215-17.