Arbitration's Summer Soldiers Marching into Fall: Another Look at Eisenberg, Miller and Sherwin's Empirical Study of Arbitration Clauses in Consumer and Nonconsumer Contracts

21 Pages Posted: 30 Mar 2010 Last revised: 6 Nov 2015

Nancy S. Kim

California Western School of Law

Chii-Dean Lin

San Diego State University

Date Written: March 29, 2010

Abstract

Our empirical study examines the role and importance of arbitration clauses in standard form contracts primarily with other businesses. While much has been written about the impact of mandatory arbitration clauses in consumer contracts, relatively little has been written on mandatory arbitration clauses in customer agreements where the customer was a business and not an individual consumer. In this Article, we specifically address the findings presented in Theodore Eisenberg, Geoffrey Miller, and Emily Sherwin’s study, Arbitration’s Summer Soldiers: An Empirical Study of Arbitration Clauses in Consumer and Nonconsumer Contracts. Our study finds that many businesses employ mandatory arbitration clauses in their customer contracts with other businesses. Our study also suggests that the primary reason for mandatory arbitration clauses in customer contracts where the customer is a business is the avoidance of expenses associated with litigation. Our study may help companies to better understand attitudes about arbitration and assist in contract negotiations. The results of our study may also help courts determine whether arbitration clauses in merchant form agreements - and changes to those clauses - are “material” under section 2-207(2) of the Uniform Commercial Code.

Keywords: Contracts, Arbitration, Form Contracts, 2-207, Uniform Commercial Code, Commercial Law, Sales, Alternative Dispute Resolution, Commercial Contracts, International Business Law

Suggested Citation

Kim, Nancy S. and Lin, Chii-Dean, Arbitration's Summer Soldiers Marching into Fall: Another Look at Eisenberg, Miller and Sherwin's Empirical Study of Arbitration Clauses in Consumer and Nonconsumer Contracts (March 29, 2010). Vermont Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1580128

Nancy S. Kim (Contact Author)

California Western School of Law ( email )

225 Cedar Street
San Diego, CA 92101
United States

Chii-Dean Lin

San Diego State University ( email )

San Diego, CA 92182-0763
United States

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