A Pro-Congress Approach to Arbitration and Unconscionability

Abstract:     
This Essay endeavors to resolve a current controversy involving the application of the unconscionability doctrine to arbitration agreements. The pro-arbitration policies of the Federal Arbitration Act (FAA) and the anti-arbitration instincts of the unconscionability doctrine are difficult to reconcile. Instead of clarity in this area of law, we have a series of hints and clues, often contradictory, from the Supreme Court. Although Professor David Horton and I share a desire to clarify this area of the law, we have nearly opposite views about how this should be accomplished. This Essay sets forth my position and also responds to Unconscionability Wars, Professor Horton's latest thoughtful effort on the subject.

Number of Pages in PDF File: 17

Keywords: unconscionability, contracts, arbitration, arbitration agreements

JEL Classification: K12

Accepted Paper Series