This is a guest post authored by Jennifer Bennett, a Staff Attorney at Public Justice, and David Seligman, Director of Towards Justice, a non-profit workers’ rights law firm based in Denver, Colorado.

Lots of attention these days is rightfully being paid to disparities in law enforcement: Hundreds of thousands of people a year who have harmed no one are arrested simply for possessing marijuana, while corporations—and their executives—who cover up deadly car defects, devastate financial markets, or defraud the public walk away scot-free, only to break the law all over again. Corporations’ ability to violate the law with impunity is often explained in terms of an unwillingness or inability to prosecute white-collar crime. And there’s no question that the government often fails to punish corporate law-breaking. But there’s another—much more impactful—reason that corporations today are getting away with breaking the law: forced arbitration.

Traditionally, one of the most important tools for holding corporations accountable was not criminal prosecution but civil litigation. If a company discriminated against workers of color, if a bank opened fraudulent accounts in its customers’ names, if a nursing home abused its residents, it would be subject to lawsuits—often large class action lawsuits with large damage awards (or settlements)—that would shine a light on this misconduct and, in many cases, render it unprofitable. These lawsuits not only provided workers and consumers a remedy when they were harmed by corporate misconduct; they helped deter such misconduct from happening to begin with.

Forced arbitration has changed all that. Now, many corporations ban their workers and customers from ever bringing a lawsuit against the corporation in court, forcing them instead to bring any claims in private arbitration. These forced arbitration provisions also typically forbid workers and consumers from banding together the way they would in a class action, requiring instead that any claim be brought individually.

The Supreme Court has interpreted—or, as most scholars view it, misinterpreted—the Federal Arbitration Act to require that courts enforce these forced arbitration provisions and class action waivers. As a result, these fine-print terms have proliferated across the economy. Most private employers have them, as do many cable companies, payday lenders, credit card companies, for-profit schools, and even nursing homes. Because civil litigation is a critical tool of law enforcement, and that litigation depends on access to the courts and on class actions, these provisions have drastically limited the enforcement of some of the most critical and hard-fought protections for consumers and workers.

It will take an act of Congress to fully resolve the problem. Although the U.S. House of Representatives recently passed a bill that would prevent the enforcement of forced arbitration clauses, there is little likelihood that that bill will become law—or that some other federal solution to the enforcement crisis is likely to emerge—any time soon.

But states have a considerable stake in the problem. After all, it is very often state law that goes underenforced because of the interpretation the Supreme Court has given to the Federal Arbitration Act and state residents who suffer from that underenforcement. States, therefore, have been searching for ways to respond to the enforcement crisis arbitration has wrought. One option some have proposed for ameliorating the problem is to make arbitration more transparent. The First Amendment and the common law require that courts be open, public forums. Arbitration, on the other hand, is purely private, and often secret. This means that the public (and the government) lack information about what claims are being brought, how they are being resolved, and who is resolving them.

Some states have tried to shed light on what’s going on in arbitration by passing laws that require arbitration providers to disclose information about the arbitrations they conduct in that state—information like who the parties were, who the arbitrator was, and who won.

These laws are important. They enable researchers and the public to begin to have a sense of what is happening in arbitration. Indeed, while lawyers had long believed that forced arbitration provisions were suppressing claims, it was only the passage of these transparency statutes that permitted the research necessary to confirm this belief empirically—and to demonstrate the magnitude of problem.

But these laws can only take us so far. The main problem with arbitration isn’t that the claims that are filed are being kept secret (though, of course, that’s a problem with arbitration); it’s that, for the most part, claims aren’t getting filed at all. A recent empirical study by Professor Cynthia Estlund found that hundreds of thousands of employment claims that, absent an arbitration clause, would have been brought in court (likely consolidated together as class actions), have simply vanished. It’s not that these claims are now being brought in arbitration; they are not being brought anywhere at all. Similarly, a study by the Consumer Financial Protection Bureau found that when courts compel arbitration of consumer finance lawsuits, almost none of them are actually re-filed in arbitration—these claims, too, just disappear. And a New York Times investigation found that “[o]nce blocked from going to court as a group” by forced arbitration clauses, “most people drop[ ] their claims entirely.” These studies were conducted long after states began passing arbitration transparency statutes. In other words, while those statutes are essential to understanding what’s going on in arbitration, they do not solve the fundamental problem with forced arbitration: claim suppression.

This result is unsurprising. The reasons workers and consumers do not bring claims in arbitration has nothing to do with arbitration’s secrecy. Workers and consumers do not bring claims in arbitration because many claims are only economically feasible when the costs are divided amongst a large group of people, and arbitration clauses typically prohibit class arbitrations; they do not bring claims because they fear retaliation, a problem that class actions solve by permitting just one plaintiff, brave enough to stand up for everyone, to bring claims on behalf of a group; they do not bring claims because forced arbitration provisions cause them uncertainty about their rights or contain onerous terms, such as inconvenient venue clauses, limitations on damages, shortened statutes of limitation, or even clauses that allow the drafting party to select the arbitrator that deter workers and consumers from even trying to raise their claims. None of these problems are solved by transparency.

Additional transparency also does not address the features of arbitration that make it difficult for a worker or consumer to successfully recover in that forum. These proceedings are characterized by a “repeat player” bias; arbitrators interact with corporate lawyers far more than individual workers or consumers, which creates an incentive for them to decide in favor of these firms in order to increase their chances of being selected for future work. Arbitrations also often contain limits on discovery that make it difficult for workers and consumers to obtain critical evidence. As a result of these lopsided procedures, employees face far worse outcomes in arbitration than in state or federal court, winning only 21% of the time (as compared to 36% and 57% of the time in federal and state court respectively). And when workers do prevail in arbitration, they receive, on average, only 16% of the recovery for similar cases in federal court and 7% of that in state courts.

It doesn’t matter how open or transparent a dispute resolution process is—if people do not bring claims or face biased procedures when they do come forward, it will not work. It will not provide a remedy for those harmed by corporate misconduct, and it will not deter corporations from breaking the law. Our marketplace and, for that matter, our democracy depend on workers and consumers being able to assert their rights and hold those who violate those rights accountable. Forced arbitration makes that impossible.

Furthermore, while arbitration transparency statutes make public some information about the few claims that make it to arbitration, they do nothing to shed light on the vast majority of corporate misconduct that is never challenged at all, because of forced arbitration.

The current experience with state transparency laws helps to illustrate this point. For several years, California, Maryland, and Washington, DC have had laws on the books that require arbitration administrators to disclose basic information about arbitrations conducted before them. But these laws have not made it any easier to uncover corporate misconduct—misconduct that would have been discovered years earlier if only customers or workers been allowed to bring claims in court. Wells Fargo, for example, was able to open millions of fake accounts in its customers’ names for years because its forced arbitration provision ensured that customers could not bring a class action against it that would have revealed this misconduct. It’s impossible to know what kind of misconduct lurks behind the hundreds of millions of arbitration clauses that have spread through the economy. It’s not that those clauses are forcing people to bring claims in secret arbitration; it’s that they’re preventing people from bringing those claims at all.

This is of course not to say that transparency requirements are not important.  They are. For too long the secrecy that shrouded forced arbitration allowed courts and corporations to justify its imposition by making arguments about its utility and efficacy that simply aren’t true. Information about what’s actually happening in arbitration is vital to the public, to courts, and to policymakers.

But sunshine alone will not disinfect us of the harm caused by forced arbitration. The harm is not simply that claims are adjudicated in secret. It is that they are not adjudicated at all.

To fully address this problem will almost certainly require federal action. But, in the meantime, there are steps states can take to ameliorate the harm caused by the erosion of private enforcement. States can—and must—step up public enforcement of the law. The obvious path to doing so would be to substantially increase public enforcement budgets. But with so many other demands on public revenue, it’ll be impossible to increase public enforcement at the level needed to offset the reduction in private enforcement spurred by forced arbitration.

But there’s another option: Instead, states can enact public-private enforcement schemes. Several states, for example, are considering bills that would empower their residents to act as whistleblowers in enforcing worker and consumer protection statutes on the state’s behalf. This would greatly increase the states’ enforcement capacity, without requiring a concomitant increase in the state’s budget.

Federal action barring forced arbitration provisions is still necessary. But it’s difficult to know when, if ever, that will happen. In the meantime, state statutes authorizing whistleblowers to bring enforcement actions on the state’s behalf are perhaps the only way to ensure effective enforcement of some of our most hard-fought consumer and worker protections.