The Consent Amendment: Restoring Meaningful Consent and Respect for Human Dignity in America's Civil Justice System

41 Pages Posted: 22 Feb 2017 Last revised: 15 Nov 2017

See all articles by Imre S. Szalai

Imre S. Szalai

Loyola University New Orleans College of Law

Date Written: February 1, 2017

Abstract

Arbitration agreements now appear throughout American society, in large part because of expansive, flawed decisions from the Supreme Court involving the Federal Arbitration Act, a 1925 statute designed to facilitate arbitration in limited situations. As a result, the courthouse door is blocked for consumers and employees trying to vindicate their rights. Sadly, many consumers and employees are unaware of the existence or significance of arbitration clauses in their contracts. Nevertheless, courts still compel many individuals to arbitrate, even when meaningful consent is lacking. But meaningful consent is the foundation for arbitration, consistent with the fundamental value of party autonomy in a democratic society. The current legal framework for arbitration is flawed and erodes public confidence in our legal system.

This Article proposes an amendment to the Federal Arbitration Act, based on privacy rules recently adopted by the Federal Communications Commission. This Article’s proposed amendment, called the Consent Amendment, restores meaningful consent for consumers and employees, and in turn, promotes respect for party autonomy and human dignity in our civil justice system. Through three simple rules, based on transparency, choice, and respect for expectations, this proposal would incentivize businesses to develop fairer arbitration procedures. Among the several benefits of the proposal is that parties can still take advantage of the potential efficiencies of arbitration, provided that meaningful consent exists. This Article’s proposal, which solves an almost one-hundred-year-old puzzle in arbitration law, restores faith in both arbitration and our judiciary as legitimate institutions that respect party autonomy and serve the public good.

Keywords: Federal Arbitration Act, consumer protection, employee rights, civil procedure, proposed legislation

JEL Classification: KOO, K1, K10, K12, K4, K40, K41, K42

Suggested Citation

Szalai, Imre S., The Consent Amendment: Restoring Meaningful Consent and Respect for Human Dignity in America's Civil Justice System (February 1, 2017). 24 Va. J. Soc. Pol'y & L. 195 (2017), Loyola University New Orleans College of Law Research Paper No. 2017-15, Available at SSRN: https://ssrn.com/abstract=2920877

Imre S. Szalai (Contact Author)

Loyola University New Orleans College of Law ( email )

7214 St. Charles Ave., Box 901
Campus Box 901
New Orleans, LA 70118
United States

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