Contracting With Tortfeasors: Mandatory Arbitration Clauses and Personal Injury Claims

Abstract:     
People thinking about contractual arbitration clauses usually envision the resulting disputes as contractual in nature. However, there is also a group of cases in which the clauses are used to compel arbitration of personal injury claims. This article examines those cases, including the impact of the Federal Arbitration Act on their enforcement. Next, the article considers the ways in which these pre-dispute, mandatory arbitration clauses can disturb the traditional values of procedural justice, contractual fairness, and the enforcement of tort-based duties. Finally, the article proposes changes in the law of arbitration and evaluates whether such changes are politically feasible.

Number of Pages in PDF File: 26

Keywords: arbitration, torts, personal injury, contracts, procedure, discovery, jury, class action

JEL Classification: K41

Accepted Paper Series