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40 W. St. U. L. Rev. 89 (2012-2013)
Mandatory Arbitration: Inherently Unconscionable, but Immune from Unconscionability

handle is hein.journals/wsulr40 and id is 93 raw text is: Mandatory Arbitration: Inherently Unconscionable, but Immune from Unconscionability INTRODUCTION ........................................................... 89 SEPARATE SYSTEMS OF DISPUTE RESOLUTION FOR CORPORATE AMERICA AND FOR ORDINARY PEOPLE ............................................. 91 AN INHERENTLY UNCONSCIONABLE SYSTEM OF DISPUTE RESOLUTION ......... .93 For-profit and For-business ............................................ 93 An Unreasonably Costly Alternative to the Class Action ............... 95 Arresting Government and Undermining Statutory Rights ............... 96 How ARBITRATION BECAME IMMUNE FROM THE UNCONSCIONABILITY DEFENSE .......................................................... 97 THE POWERLESSNESS OF THE UNCONSCIONABILITY DEFENSE .................. 99 FEDERAL REFORM ........................................................ 100 The Consumer Financial Protection Bureau............... ......... 100 The Arbitration Fairness Act .................................. 101 CONCLUSION............................................................ 102 INTRODUCTION Imagine if a 1951 class action lawsuit against the Board of Education of Topeka, Kansas challenging separate, but equal education was dismissed on a motion to compel arbitration. Imagine this was because an arbitration clause in an adhesion contract stripped away the right of the class members to sue in court. Would segregation have ended without the litigation that resulted in Brown v. Board of Education'? The hypothetical is factually extreme, but compelling arbitration of civil rights claims is legally possible.2 By preventing litigation, arbitration arrests important developments in the law and potential social justice. This article will begin with the scope of the issue. Arbitration clauses are ubiquitously found in adhesion contracts for basic products and services that ordinary people use. However, these clauses are not as commonly found in contracts that businesses use with each other.3 Therefore, Corporate America's contracts are creating separate systems for the resolution of disputes involving their interests. So while the courts continue to protect the economic rights of businesses, they increasingly cannot protect the social rights of consumers and employees. Next, this article will review three inherent problems with mandatory arbitration of consumer and employment disputes. First, the profit motive that guides the arbitration industry necessarily caters to the business respondents and disadvantages consumer and employee claimants. Second, the unreasonable costs that 1. Brown v. Board of Education, 347 U.S. 483 (1954). 2. Glimer v. Interstate/Johnson Lane Corp., 500 U.S. 21, 35 (1991). 3. Jonathan D. Glater, Companies Unlikely to Use Arbitration with Each Other, N.Y. TIMES, OCTOBER 5, 2008, at B4.

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