A Pro-Congress Approach to Arbitration and Unconscionability

Northwestern University Law Review Colloquy, Vol. 106, p. 53, 2011

Widener Law School Legal Studies Research Paper No. 11-37

17 Pages Posted: 6 Oct 2011  

Stephen E. Friedman

Widener University Delaware Law School

Date Written: October 5, 2011

Abstract

This Essay endeavors to resolve a current controversy involving the application of the unconscionability doctrine to arbitration agreements. The pro-arbitration policies of the Federal Arbitration Act (FAA) and the anti-arbitration instincts of the unconscionability doctrine are difficult to reconcile. Instead of clarity in this area of law, we have a series of hints and clues, often contradictory, from the Supreme Court. Although Professor David Horton and I share a desire to clarify this area of the law, we have nearly opposite views about how this should be accomplished. This Essay sets forth my position and also responds to Unconscionability Wars, Professor Horton's latest thoughtful effort on the subject.

Keywords: unconscionability, contracts, arbitration, arbitration agreements

JEL Classification: K12

Suggested Citation

Friedman, Stephen E., A Pro-Congress Approach to Arbitration and Unconscionability (October 5, 2011). Northwestern University Law Review Colloquy, Vol. 106, p. 53, 2011; Widener Law School Legal Studies Research Paper No. 11-37. Available at SSRN: https://ssrn.com/abstract=1939498

Stephen E. Friedman (Contact Author)

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

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