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Mass Arbitration and Democratic Legitimacy


David Horton


University of California, Davis - School of Law

June 7, 2013

University of Colorado Law Review, Vol. 84, 2013
UC Davis Legal Studies Research Paper No. 331

Abstract:     
This Essay reviews Margaret Jane Radin’s dazzling new book, Boilerplate. Radin makes two central claims about the widespread use of adhesion contracts. First, she argues that the heavy saturation of fine print causes “normative degradation”: the erosion of contract law’s bedrock requirement of consent. Second, and more provocatively, she contends that the lockstep use of standard forms permits private actors to override the public laws and thus causes “democratic degradation.” The Essay argues that Radin’s democratic degradation thesis is particularly compelling in the context of consumer and employment arbitration. Spurred on by the U.S. Supreme Court’s interpretation of the Federal Arbitration Act (“FAA”), companies use their dominion over adhesive provisions to alter procedural rules on a massive scale. The issue of whether these terms are consensual is hotly contested. Yet no matter one’s view of fine print generally, the Court’s separability doctrine — a legal fiction that allows arbitrators to decide the very question of whether an arbitration clause is valid — drives a wedge between arbitration and contractual consent. Finally, after years of denying that arbitration affects substantive rights, in cases such as AT&T Mobility LLC v. Concepcion and American Express Co. v. Italian Colors Restaurant, the Court is shunting plaintiffs to an extrajudicial forum even when there is no dispute that doing so will deprive them of any remedy. Thus, through the expedient of printed or electronic words, corporations do precisely what Radin says: they “delete rights that are granted through democratic processes” (p. 16).

Number of Pages in PDF File: 45

Keywords: Margaret Jane Radin, Peggy Radin, Boilerplate, Federal Arbitration Act, FAA, adhesion contracts, standard form contracts, contractual consent, democratic legitimacy, AT&T Mobility LLC v. Concepcion, American Express Co. v. Italian Colors Restaurant, In re: American Express Merchants Litigation

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Date posted: March 21, 2013 ; Last revised: March 15, 2014

Suggested Citation

Horton, David, Mass Arbitration and Democratic Legitimacy (June 7, 2013). University of Colorado Law Review, Vol. 84, 2013; UC Davis Legal Studies Research Paper No. 331. Available at SSRN: http://ssrn.com/abstract=2235901

Contact Information

David Horton (Contact Author)
University of California, Davis - School of Law ( email )
Martin Luther King, Jr. Hall
Davis, CA 95616-5201
United States
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