The New Judicial Hostility to Arbitration: Federal Preemption, Contract Unconscionability, and Agreements to Arbitrate

Abstract

Since 2000, many courts have been holding agreements to arbitrate in consumer and employment contracts unconscionable and therefore unenforceable. Professor Burton makes two arguments in relation to these cases. First, many of the reasons on which these courts rely are pre-empted under the Supreme Court's arbitration law jurisprudence, which endorses a strong federal policy favoring arbitration. Second, and related, many of the courts' reasonings do not justify findings of unconscionability as the doctrine exists in general contract law.

Keywords: judicial hostility, agreements to arbitrate, unconscionability, federal preemption