Mass Arbitration and Democratic Legitimacy
45 Pages Posted: 21 Mar 2013 Last revised: 15 Mar 2014
Date Written: June 7, 2013
This Essay reviews Margaret Jane Radin’s dazzling new book, Boilerplate. Radin makes two central claims about the widespread use of adhesion contracts. First, she argues that the heavy saturation of fine print causes “normative degradation”: the erosion of contract law’s bedrock requirement of consent. Second, and more provocatively, she contends that the lockstep use of standard forms permits private actors to override the public laws and thus causes “democratic degradation.” The Essay argues that Radin’s democratic degradation thesis is particularly compelling in the context of consumer and employment arbitration. Spurred on by the U.S. Supreme Court’s interpretation of the Federal Arbitration Act (“FAA”), companies use their dominion over adhesive provisions to alter procedural rules on a massive scale. The issue of whether these terms are consensual is hotly contested. Yet no matter one’s view of fine print generally, the Court’s separability doctrine — a legal fiction that allows arbitrators to decide the very question of whether an arbitration clause is valid — drives a wedge between arbitration and contractual consent. Finally, after years of denying that arbitration affects substantive rights, in cases such as AT&T Mobility LLC v. Concepcion and American Express Co. v. Italian Colors Restaurant, the Court is shunting plaintiffs to an extrajudicial forum even when there is no dispute that doing so will deprive them of any remedy. Thus, through the expedient of printed or electronic words, corporations do precisely what Radin says: they “delete rights that are granted through democratic processes” (p. 16).
Keywords: Margaret Jane Radin, Peggy Radin, Boilerplate, Federal Arbitration Act, FAA, adhesion contracts, standard form contracts, contractual consent, democratic legitimacy, AT&T Mobility LLC v. Concepcion, American Express Co. v. Italian Colors Restaurant, In re: American Express Merchants Litigation
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