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Toward a New Federal Law on Arbitration$
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Thomas E. Carbonneau

Print publication date: 2014

Print ISBN-13: 9780199965519

Published to Oxford Scholarship Online: December 2014

DOI: 10.1093/acprof:oso/9780199965519.001.0001

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Reaffirming the Consumer Cases

Reaffirming the Consumer Cases

(p.71) 4 Reaffirming the Consumer Cases
Toward a New Federal Law on Arbitration

Thomas E. Carbonneau

Oxford University Press

The Court's recent rulings indicate that its support for arbitration remains unfailing. These cases address adhesive arbitration, perhaps the most controversial part of the judicial doctrine on arbitration. In fact, adhesive arbitration challenges the contract freedom principle. It represents the unilateral imposition of a legal obligation to arbitrate upon the weaker transactional party by the economically stronger party. The unfairness of the adhesive circumstances can be remedied through the doctrine of unconscionability by voiding the agreement to arbitrate. In two landmark cases (AT&T Mobility and Italian Colors Restaurant), the Court upheld adhesive arbitration, concluding that the marketplace had made adhesion a proper vehicle for contract formation and that class action waivers were enforceable as a legitimate part of the bargain for arbitration. Moreover, arbitration did not compromise statutory rights. Finally, Sutter and BG Group reaffirmed the vitality of Bazzle and the arbitrator's authority to interpret the arbitral clause.

Keywords:   adhesive arbitration, judicial doctrine, contract freedom, unilateral imposition, unfairness, unconscionability, contract formation, class action waivers, bargain for arbitration, statutory rights

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