Judicial Policing in Consumer Contracting after Buckeye Check Cashing

Abstract:     
The Supreme Court's 2005 decision in Buckeye Check Cashing v. Cardegna explicitly extended the Court's separability doctrine from commercial contracting to consumer contracting. This Article will discuss the conflicts between the traditional judicial role in policing the bargaining process and the imposition of mandatory arbitration through separability. The Article further discusses questions left open after Buckeye regarding the appropriate scope of the Court's embrace of mandatory arbitration in the consumer context. While this Article does not argue, as some have done, for abolition of binding pre-dispute arbitration clauses in the consumer context, it does argue that common-law doctrines designed to ensure fairness and freedom of assent in consumer contracting should be entrusted to those best able to apply them and implement their underlying policies - the courts.

Number of Pages in PDF File: 59

Keywords: arbitration, consumer protection, consumer law, contracts, alternative dispute resolution, ADR

JEL Classification: K12, K41

working papers series