Dangers of Deference to Form Arbitration Provisions

Abstract

This Article is part of my larger project exploring what I call "contracting culture," which borrows from legal realism and relational contract theory by considering contextual factors such as negotiators' relations, understandings, and values. As part of this project, I am pursuing various threads, including empirical studies of how contracting realities impact arbitration. In this Article, however, I focus on how these realities in business to consumer contracts combine with the Federal Arbitration Act and formulaic contract law to foster dangerous deference to form arbitration provisions. The Article then invites procedural reforms and offers suggestions for regulations aimed to temper this deference to protect consumers' dispute resolution needs without sapping the beneficial use of consumer arbitration.

Keywords: Contracts, Arbitration, Federal Arbitration Act, ADR, Procedure, Empirical Studies, Law and Society, Law and Culture

JEL Classification: K10, K39