Finding the Contract in Contracts for Law, Forum, and Arbitration

Abstract:     
Contract provisions specifying the law or forum (either judicial or arbitration) have begun appearing in litigated cases, as businesses have pressed many courts for their enforcement against consumers. In at least some of the cases, enforcement of a choice of law provision results in the displacement of the consumer's home state protection by the lesser consumer protection of the State of the form drafter's choosing. This phenomenon raises serious problems of federalism and local control of consumer protection. But while considerable scholarly attention has been lavished on so-called "mandatory arbitration" in this context, much less has attempted to improve our understanding of the workings of choice of law and forum clauses, and of the important implications of their widespread enforcement. The cases reflect very little understanding of these provisions as contract provisions, and the literature tends to approach the provisions primarily as conflict of laws problems. This may have obscured the contract that is at the core of these provisions and thereby made a full appreciation of the contract law issues harder to come by. This article attempts to bring more clarity to the analysis. It does so first by building an analytical framework that separates the conflicts and contracts issues for analysis. After developing that framework, the article takes that expanded analysis to a very important recent California case. It concludes by suggesting areas for further study now that the contract issues within these provisions are more clearly evident.

Keywords: Consumer protection, choice of law, choice of forum, hague convention, consumer law

Accepted Paper Series