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No.

433 April 18, 2002

Arbitration under Assault


Trial Lawyers Lead the Charge
by Stephen J. Ware

Executive Summary

Arbitration is a private-sector alternative to the which disputing parties escape the litigation
government court system. Compared with litigation, process that enriches so many lawyers.
arbitration is typically quick, inexpensive, and confi- The trial lawyers’ fight against arbitration
dential. It generally operates in a commonsense way, reached the Supreme Court during the 2000–01
without all of the legal jargon and procedural term in two cases, one involving consumer arbi-
maneuvering that go on in court. Unlike judges, arbi- tration and the other involving employment
trators are chosen by the parties to the dispute. Cases arbitration. The trial lawyers’ lobby had hoped
are resolved by respected professionals with techni- for rulings that would effectively end enforce-
cal, as well as legal, expertise. ment of consumer and employee arbitration
Until recently, arbitration was confined to a agreements. Fortunately, the Supreme Court
few narrow categories of disputes. Those cate- reaffirmed arbitration in both cases, although it
gories are expanding rapidly because of a renewed did so by bare five-to-four majorities.
emphasis on freedom of contract, which is the Having failed in the Supreme Court, trial
central principle of the Federal Arbitration Act lawyers are taking their fight to the halls of
and recent Supreme Court cases applying that act. Congress. They support bills to end enforcement of
Arbitration agreements now cover the broad large categories of arbitration agreements. Several
range of civil disputes among all sorts of parties, such bills have been introduced, and one recently
including consumers and employees. That opens advanced out of the Senate Judiciary Committee.
up great potential for civil justice reform by fos- Enactment of any of those bills would squelch pri-
tering private-sector, market-oriented alternatives vate-sector alternatives to the lawyer-dominated
to the government court system. court systems, violate freedom of contract, and
Unfortunately, trial lawyers are trying to kill raise costs to American business. While the bills
those alternatives. Enforcement of arbitration purport to advance the interests of consumers and
agreements is especially threatening to trial employees, they would likely harm most of the peo-
lawyers because those contracts are the means by ple they purport to help.

_____________________________________________________________________________________________________
Stephen J. Ware is a professor of law at Samford University’s Cumberland School of Law in Birmingham, Alabama..
The vast majority increase access to justice for meritorious
of consumers, claims. Those benefits would not be fully
Introduction realized if binding arbitration agreements
employees, and could be entered into only after a dispute
others benefit from Since the September 11 attacks on our arose. Enactment of these anti-arbitration
nation, the public and its leaders have been bills would further enrich trial lawyers at the
the power to com- focusing on terrorism and military action. expense of nearly everyone else.
mit to arbitration. With attention thus diverted, some special
interest groups are quietly lobbying the polit-
ical system to their advantage. For example, Benefits of Arbitration
trial lawyers are backing a number of bills
that would help them tighten their grip on Arbitration is simply a private court. Just
the court system and restrict the freedom of as Federal Express is a private-sector alterna-
people to opt for alternatives. tive to the government post office for send-
The bill that is advancing most rapidly ing packages, arbitration is a private-sector
through Congress is the Motor Vehicle alternative to the government court system
Contract Arbitration Fairness Act.1 Its pas- for resolving disputes.
sage would increase the chance that other Arbitration is free enterprise. It is private
anti-arbitration bills will become law. Thus it businesses competing for customers. The
is now time to assess the trial lawyers’ multi- businesses are those that provide arbitration,
faceted attack on arbitration. such as the American Arbitration Association,
This paper begins with an overview of the National Arbitration Forum, and individ-
arbitration and the benefits it provides. ual arbitrators who “hang out a shingle” as
Those benefits include savings of time and sole proprietors. The customers are people
money, more knowledgeable adjudicators, and organizations with disputes. Those cus-
and confidentiality. Current arbitration law tomers have a choice, an alternative to the gov-
facilitates those benefits by enforcing arbitra- ernment court system. The alternative is arbi-
tion agreements, regardless of whether the tration—which is actually not one but many
agreements are entered into before or after a alternatives because there are many providers
dispute arises. The paper then highlights the of arbitration and there are differences in the
threat to current, pro-contract arbitration services they offer. There are, however, certain
law. That law is under attack by trial lawyers common features that set arbitration apart
who would prefer to confine disputes to a from litigation in government courts.
court system where they exercise more con- Parties using arbitration generally find
trol. The trial lawyers’ lobbies support several that it saves them time and money in com-
bills in Congress that would render unen- parison with litigation. Arbitration is typical-
forceable large categories of predispute arbi- ly quick, inexpensive, and confidential. It
tration agreements. To put it another way, generally operates in a commonsense way,
those bills seek to deprive consumers, without all of the legal jargon and procedur-
employees, and others of the power to enter al maneuvering that go on in court.
into binding predispute arbitration agree- To put it bluntly, what goes on in court is
ments. The bills are premised on the false often absurd. One need only remember the
assumption that such power harms those O. J. Simpson trial to appreciate the point.
who possess it. Furthermore, the Simpson case was a crimi-
Careful analysis shows, however, that the nal trial, which usually proceeds to resolu-
vast majority of consumers, employees, and tion faster than a civil trial.
others benefit from the power to commit to The procedures of civil litigation are slow,
arbitration. Arbitration tends to reduce con- costly, and inefficient. Before trial, lawyers rou-
sumer prices, raise employee wages, and tinely produce enormous amounts of paper-

2
work. They write and file numerous pleadings cated set of evidentiary and procedural rules.
and motions. Those often-lengthy documents Lawyers spend time and money quibbling over
are typically filled with legalistic jargon, techni- those rules. It sometimes seems that they talk
calities, formalities, and tedious repetition. about everything but the underlying dispute
The biggest source of cost and delay in civil itself. In contrast, arbitration cuts to the chase.
litigation, however, is often discovery. Lawyers In an arbitration hearing, little time is wasted
serve, respond to, and often argue about on technicalities. Instead, the parties tell their
interrogatories and document requests. sides of the story and the proceeding gets
Especially in high-stakes litigation, lawyers quickly to the heart of the matter.
are prone to exchange boxes and boxes of doc- One of the reasons arbitration can do that,
uments relating to the parties but too often but litigation cannot, is that arbitrators tend to
not really relating to the case. Since broad dis- be more knowledgeable than judges or juries.
covery rules were enacted in the 1930s, tech- Arbitrators are chosen by the parties, often
nological advances such as photocopiers and because of their expertise in a particular type of
computers have caused exponential growth in dispute. For example, the arbitrator of a con-
the number of documents and the burden of struction dispute might be an engineer with
document discovery. experience in the kind of construction involved
After document discovery, lawyers contin- in that case. Such an arbitrator does not need Arbitration typi-
ue discovery with depositions of potential wit- to be brought up to speed on the technical cally reduces costs.
nesses. That can involve teams of lawyers trav- aspects of the case, the way a judge or a jury
eling around the country for months on end, does. The pressing need to educate judges, and
with the lawyers often “on the clock” while especially juries, is so widely accepted that it is
waiting in airport lines or stuck in traffic. The the premise of several rules of evidence and has
Committee for Economic Development, an spawned an entire industry of professional
organization of business and education lead- expert witnesses. That industry has grown to
ers that addresses economic and social issues, the point that “it is the rare civil trial that does
estimates that discovery alone is 80 percent of not present some kind of expert, such as a doc-
the cost of a fully litigated case.2 Other surveys tor, an accountant, a mechanic, or an engi-
of a wide range of cases estimate much lower neer.”8 But there are severe doubts about
percentages but nevertheless conclude that whether jurors generally succeed in finding the
the litigation activity accounting for the most truth amidst the starkly clashing views of paid,
lawyer time is discovery.3 And, of course, the partisan experts. In any case with technical
cost to the parties is delay as well as money facts—for instance, about engineering, medical
spent on lawyers. A recent study of state courts science, or financial matters—it may be impos-
of general jurisdiction in 45 of the nation’s 75 sible to educate the jury adequately. It is simply
most populous counties found that the aver- not feasible to send jurors to medical school or
age “length of all civil cases that reach a jury business school so they will be able to under-
trial is just over two and one-half years.”4 stand the case.
In contrast, arbitration typically reduces In contrast, arbitration allows parties to
costs. Arbitration gains speed and efficiency have their cases resolved by respected profes-
by streamlining discovery, pleadings, and sionals who understand the nature and conse-
motion practice. The streamlined process gen- quences of their rulings. Such arbitrators are
erally results in much lower legal fees and unlikely to deliver the off-the-wall verdicts
related process costs. That is certainly the sometimes issued by jurors. Arbitrators know
received wisdom about arbitration,5 and while that their rulings must be sensible if they are
empirical studies cannot prove it with certain- to be invited to arbitrate future cases. There is
ty,6 they conclude that process costs are much a built-in market constraint on arbitrator dis-
lower in arbitration than in litigation.7 cretion that is completely absent with respect
At trial, there is an elaborate and compli- to the discretion of jurors and judges.

3
Finally, arbitration is confidential. That is mary substantive command is that arbitration
particularly valuable to parties who want their agreements “shall be valid, irrevocable, and
disputes resolved discretely, away from the pry- enforceable, save upon such grounds as exist
ing eyes of business rivals, voyeur journalists, at law or in equity for the revocation of any
and lawyers who might stir up copycat lawsuits. contract.”12 In other words, courts must
enforce an arbitration agreement unless there
is a contract-law ground, such as misrepresen-
A Brief History of tation or duress, for denying enforcement.13
The FAA’s contractual approach
Arbitration Law
Although the benefits of arbitration are well was designed to overrule the judiciary’s
established, they were long confined to two cat- long-standing refusal to enforce agree-
egories of disputes: (1) disputes among busi- ments to arbitrate and to place such
nesses and (2) labor disputes in unionized agreements on the same footing as
workplaces.9 Recent years, however, have seen other contracts. While Congress was
an enormous expansion in arbitration law. no doubt aware that the act would
That expansion has, for the first time, led to encourage the expeditious resolution
arbitration agreements that cover the broad of disputes, its passage was motivated,
range of civil disputes among all sorts of parties. first and foremost, by a congressional
For centuries, Americans have used arbitra- desire to enforce agreements into
tion to resolve their disputes. Sometimes they which parties had entered.14
agree to arbitrate a dispute that has already
arisen. More commonly though, the agreement That is the core of the FAA and its contrac-
to arbitrate is entered into before any dispute. tual approach to arbitration law, overruling
Many contracts include clauses obligating the the judiciary’s long-standing refusal to enforce
parties to arbitrate, rather than litigate, any and agreements to arbitrate. The pro-contract
all disputes arising out of or relating to the con- stance of the FAA frequently conflicts with
tract. Those predispute arbitration agreements state law designed to make arbitration agree-
are, like other contracts, sometimes breached. ments harder to enforce than other contracts.
An example of such a breach is the initiation of In the event of such a conflict, the state law is
a lawsuit on a claim arising out of a contract preempted (trumped) by the FAA under the
containing an arbitration clause. Another Supremacy Clause of the U.S. Constitution.15
example is a party’s refusal to arbitrate a claim For about 50 years (1925–75) after the
The Federal asserted against it. Until the 1920s, courts in the enactment of the FAA, significant remnants
United States provided no meaningful remedy of the judiciary’s refusal to enforce arbitra-
Arbitration Act is for those breaches. Parties could breach their tion agreements remained unchallenged.
resolutely arbitration agreements without fear of any Most significant, courts often refused to
pro-contract. court-ordered sanction beyond nominal enforce agreements to arbitrate claims creat-
money damages.10 ed by “public interest” statutes in such areas
To provide an effective remedy for breach, as employment discrimination, antitrust,
predispute arbitration agreements would have and securities.16 Courts did that on the
to be enforceable by specific performance. ground that it would violate “public policy”
That is, a court would issue an order staying to enforce such agreements.
litigation and compelling arbitration. That began to change about 1975. The
Precisely that change was effected by the Supreme Court’s arbitration decisions since then
Federal Arbitration Act of 1925.11 The FAA have been remarkably faithful to the contractual
makes arbitration agreements enforceable by approach of the FAA. Most important, the Court
specific performance. has held that if the parties contract to resolve a dis-
The FAA is resolutely pro-contract. Its pri- pute in arbitration then that contract must be

4
enforced even if the dispute involves claims in the consists primarily of trial lawyers. There is a special
employment discrimination, antitrust, and securi- Not all trial lawyers, of course, are involved interest group
ties areas.17 The Court has repeatedly emphasized in lobbying for anti-arbitration bills. The
that courts should send claims to arbitration American Trial Lawyers Association, however, trying to kill the
when, and only when, contract law analysis would has generated countless publications and arbritration alter-
call for that. speakers opposing enforcement of arbitration
Furthermore, parties are largely free to spec- agreements. One of them says: “Clearly the
native. That
ify by contract the procedures governing their FAA needs to be amended and restored to its group consists
arbitration. The Court has even suggested that original purpose: to regulate agreements primarily of trial
parties may be free to specify by contract the between large commercial entities, not
remedies the arbitrator may award, specifically, between large commercial enterprises and lawyers.
whether punitive damages are available in arbi- consumers. ATLA and other groups are work-
tration.18 The Court’s post-1975 fidelity to the ing in Congress to that end.”24
contractual approach extends beyond business Another organization, Trial Lawyers for
and labor disputes. The contractual approach Public Justice, has been especially focused on
applies to all arbitration agreements, including the anti-arbitration agenda. Its staff attor-
those found in the contracts of consumers, neys have published a book “designed to be
employees, and other individuals.19 an attorney’s primary practice guide and
Over the past quarter century, not only legal resource in the battle against compulso-
the substance of the Court’s arbitration deci- ry arbitration.”25 As TLPJ’s website says, “The
sions, but also the Court’s rhetoric has been authors are among the nation’s leading
pro-contract. The Court invokes the libertar- experts in challenging mandatory arbitration
ian philosophy underlying contract law and helping clients get their day in court.”26
when it declares that “[a]rbitration under the It is common for a special interest group to
[FAA] is a matter of consent, not coercion, have a symbiotic relationship with particular
and parties are generally free to structure government officials. The officials enact laws
their arbitration agreements as they see fit.”20 or regulations favoring the special interest
“Having made the bargain to arbitrate, the group, and the special interest group provides
party should be held to it unless Congress campaign contributions and other support
itself has evinced an intention to preclude” for those particular government officials.27
enforceability.21 The Court has repeatedly Not surprisingly, that pattern also applies
emphasized that it seeks “to ensure the to some judges.28 Activist judges favor trial
enforceability, according to their terms, of lawyers by expanding the grounds for impos-
private agreements to arbitrate.”22 ing liability on defendants. Trial lawyers in
None of that sits well with those trial turn underwrite the election campaigns of
lawyers who have made careers out of under- activist judges in states where judges are elect-
mining the enforceability of contracts.23 ed.29 In other states, trial lawyers can support
helpful judges at the time judicial appoint-
ment and retention decisions are made.
Trial Lawyers Lawyer self-interest also infects the courts in
other, less blatant, ways. For example, lawyers
against Arbitration have promoted rules of evidence and pretrial
The Supreme Court’s adoption of the con- procedures that generate more work for
tractual approach to arbitration law opens up lawyers. Those rules make litigation costly,
great potential for civil justice reform because time-consuming, and just plain baffling for
it permits private-sector, market-oriented people with cases in court. Naturally, lawyers
alternatives to the government court system. can make an argument that each of the byzan-
But there is a special interest group trying to tine rules and procedures reduces the chance of
kill the arbritration alternative. That group some particular injustice. But the combination

5
of all the rules and procedures has produced tract interpretation of the FAA. First, Waffle
the gross injustice of making the court system House affects only a tiny percentage of arbi-
too costly to even hear many disputes. tration cases, those in which the EEOC acts
Like labor unions that push wage hikes until as a party to litigation against an employer.
jobs move overseas, lawyers inflate litigation Second, the Court had to grapple with more
costs until disputing parties flee to a more effi- than the FAA in Waffle House. The Court had
cient alternative, arbitration. Predictably, the to reconcile the FAA with the EEOC’s
lawyers want to close that escape route so they enforcement powers under federal employ-
can confine disputes to a court system where ment discrimination statutes. In any event,
they exercise more control. Waffle House provides no support to the vast
The plaintiffs’ lawyers’ fear of arbitration majority of opponents of arbitration who are
was apparent from the desperate tactics they unable to persuade a federal agency to inter-
used in Alabama’s latest judicial elections. vene in their particular cases.
They littered the state with road signs and
bumper stickers castigating arbitration as a
“license to steal.”30 They even ran television Trial Lawyers’ Bills
commercials claiming that in Alabama vic-
Having failed in tims of Firestone tires and Ford Explorers
in Congress
the Supreme “don’t even have the right to confront Ford Having failed in the Supreme Court, trial
Court, trial or Firestone in court . . . because a Republican lawyers are taking their fight against arbitration
Supreme Court has ruled that binding arbi- to Congress. They support bills to end enforce-
lawyers are taking tration is the only option.”31 ment of large categories of consumer, employee,
their fight against The trial lawyers’ fight against arbitration and other arbitration agreements. Eleven such
reached the U. S. Supreme Court during the bills have been introduced.34 One of them, the
arbitration to 2000–01 term in two cases, one involving con- Motor Vehicle Contract Arbitration Fairness Act,
Congress. sumer arbitration and the other involving recently advanced out of the Senate Judiciary
employment arbitration.32 In both cases, the Committee. That same bill passed the House of
trial lawyers’ lobby hoped for rulings that Representatives in the previous Congress.35 Thus
would effectively end enforcement of con- there is a real risk of a major trial lawyer victory—
sumer and employee arbitration agreements. enactment of an anti-arbitration statute—in the
Fortunately, the Court reaffirmed arbitration near future.
in both cases. It did so, however, by bare five- Each of the bills would make arbitration
to-four majorities. agreements unenforceable in a particular con-
In a more recent case, EEOC v. Waffle House, text: consumer credit agreements (S. 192, H.R.
Inc.,33 the Supreme Court ruled against arbitra- 1051, H.R. 2531); other consumer agreements
tion by a six-to-three vote. Even though employ- (H.R. 1057, H.R. 2053); employment agree-
ees had signed an agreement that required arbi- ments (S. 163, H.R. 1489, H.R. 2282); agricul-
tration of workplace disputes, including dis- tural agreements (S. 20); and automobile deal-
crimination claims, the Court held that the ers’ franchise agreements (S. 1140, H.R. 1296).
Equal Employment Opportunity Commission Those bills would squelch private-sector alter-
can pursue victim-specific judicial relief, such as natives to lawyer-dominated court systems,
back pay, reinstatement, and damages, in an violate freedom of contract, and raise costs to
enforcement action under the Americans with American business. While purporting to
Disabilities Act. Because the EEOC was not a advance the interests of consumers, employ-
party to the arbitration agreement, said the ees, farmers, and auto dealers, the bills would
Court, there was no conflict between such likely harm most of those very people.
remedies and the FAA. Consumers and employees are the principal
Waffle House does not, however, indicate a focus of this paper, but the reasoning applies
major departure from the Court’s pro-con- to farmers, auto dealers, and others.

6
if it did not also compare the cost of pursu-
Amount of Awards and ing a case to decision, including the costs of
legal fees, discovery, and delay. Those costs
Access to Justice are generally lower in arbitration. Indeed, lit-
Assessing whether arbitration is good or igation costs are so high as to effectively pre-
bad for consumers and employees is compli- clude a remedy for many meritorious claims.
cated. Opponents of arbitration oversimplify For a business case, some analysts suggest, it
when they assert that claims by consumers costs a minimum of $100,000 to litigate a
and employees against business win more straightforward claim.40 That is why “[a]lter-
dollars from juries than from arbitrators, so native dispute resolution methods, including
arbitration must be harmful to consumers. mandatory and binding arbitration, have
First, there is little reliable data on the rela- become essential components of many busi-
tive sizes of litigation and arbitration awards. ness strategies for survival.”41 The problem is
The data might depend on the type of claims, not limited to business cases.
characteristics of parties and lawyers, region of
the country, method of selecting the arbitra- A survey of plaintiff employment
tor, and other factors. lawyers found that a prospective
There are two well-known empirical stud- plaintiff needed to have a minimum
ies comparing arbitration with litigation in of $60,000 in provable damages—not
the employment area. Both find that employ- including pain and suffering or
ees win a much higher percentage of their other intangible damages—before an
claims in arbitration than in litigation but attorney would take the case.
that employees who win in litigation win sub- Even this, however, does not exhaust
stantially more money than employees who the financial obstacles an employee
win in arbitration.36 One of the studies com- must overcome to secure representation.
bines data on arbitration’s higher employee In light of their risk of losing such cases,
win rates and lower awards to calculate that many plaintiffs’ attorneys require a
employees have a higher adjusted outcome in prospective client to pay a retainer, typi-
arbitration than in litigation.37 cally about $3,000. Others require
While such studies may have some probative clients to pay out-of-pocket expenses of
value, they may be comparing apples and the case as they are incurred. Expenses in
oranges. There is no satisfactory way to deter- employment discrimination cases can
mine whether the studied cases going to arbitra- be substantial. Donohue and Siegelman
tion are comparable on the merits to the studied found that expenses in Title VII cases are Litigation costs
cases going to litigation.38 Furthermore, any at least $10,000 and can reach as high as
comparison of awards in litigation and arbitra- $25,000. Finally, some plaintiffs’ attor- are so high as to
tion presents an incomplete picture if it does not neys now require a consultation fee, gen- effectively pre-
also account for settlement payments in litiga- erally $200–$300, just to discuss their sit- clude a remedy
tion and arbitration and dismissal before trial by uation with a potential client.
summary judgment and motion to dismiss. The result of these formidable for many merito-
Such dismissals occur more frequently in litiga- hurdles is that most people with rious claims.
tion than in arbitration.39 Consequently, there is claims against their employer are
reason to believe that claims going all the way unable to obtain counsel, and thus
through litigation to trial tend to be concentrat- never receive justice.42
ed among the strongest, while those going all the
way through arbitration to hearing tend to be Consumers have small claims courts, but
more mixed. those courts are too limited to provide ade-
Finally, any comparison of awards in liti- quate access to justice. “All but six states have
gation and arbitration would be misleading some form of small claims court, but the claim

7
Consumers have limits vary widely, from a low of $1,000 in but not predispute agreements in that con-
small claims Virginia to a high of $15,000 in Delaware and text. Employment (for example, S. 163) and
Tennessee.”43 A Washington, D.C.–based legal auto franchise (for example, S. 1140) bills also
courts, but those reform group, HALT,44 proposes raising the distinguish between predispute and postdis-
courts are too limit for each state’s small claims court system pute agreements.
to $20,000. “For most, if not all, lawyers in pri-
limited to provide Effects of Enforcing Predispute
vate practice, a dispute where there is less than
adequate access to $20,000 in issue is below their radar,” says Arbitration Agreements
justice. James Turner, HALT’s executive director.45 Of Opponents of predispute arbitration
course, the dollar amount required to attract a agreements suggest that businesses that
lawyer varies from case to case, place to place,want to arbitrate with consumers or employ-
and year to year. But no doubt there are many ees should be limited to postdispute agree-
meritorious claims too small to attract a ments. When consumers or employees enter
lawyer but too large for small claims court. into postdispute agreements, they are likely
The availability of class actions only partiallyto be advised by a lawyer and mentally
addresses that concern and does so at the cost focused on the dispute. In contrast, when
of abusive class actions. they enter into predispute agreements, they
are unlikely to be advised by a lawyer, unlike-
ly to be focused on the possibility of a dis-
Predispute and Postdispute pute, and perhaps unaware of the existence
of the arbitration clause in the contract. The
Arbitration Agreements argument seems to be that if arbitration is
Opponents of consumer and employment truly beneficial to consumers and employees,
arbitration often say that they oppose only as well as to businesses, then consumers and
“mandatory” arbitration. Many businesses employees will agree to it postdispute.47
present consumers and employees with the That argument mistakenly assumes that the
take-it-or-leave-it choice of agreeing to arbi- consumer or employee will always be able to
trate disputes or not doing business. obtain a postdispute arbitration agreement if he
Opponents of arbitration incorrectly charac- wants one. There is no support for that assump-
terize that as “mandatory” arbitration even tion, however. Lewis Maltby—formerly of the
though the consumer or employee has a American Civil Liberties Union, now of the
choice to do business or not.46 What oppo- National Workplace Institute—made the point
nents of so-called mandatory arbitration well with respect to employment arbitration. He
really oppose is freedom of contract. In par- said it is “not a good idea to bar pre-dispute arbi-
ticular, they oppose enforcement of a partic- tration agreements because it is hard to get
ular category of contract, the predispute arbi- employers to agree post-dispute to use arbitra-
tration agreement. tion to resolve disputes. . . . People who want to
In contrast to the predispute arbitration bar all pre-dispute arbitration agreements are
agreement is the postdispute arbitration making a huge assumption they don’t recog-
agreement. If a consumer or employee who nize.” They “assume that employees will be able
has not previously agreed to arbitrate has a to get post-dispute” agreements to use arbitra-
claim against a business, he may agree to arbi- tion to resolve employment disputes. That
trate the dispute that has arisen. Postdispute assumption is “questionable at best.” Maltby
arbitration agreements are uncontroversial. added that the “point of employment arbitration
Nobody seems to mind when courts enforce is to give some justice to the run-of-the-mill cases
them. For example, S. 192, the Consumer the private bar is not interested in taking.” If
Credit Fair Dispute Resolution Act, would employees try to get postdispute arbitration
continue enforcing postdispute arbitration agreements, employers will not agree to use arbi-
agreements in the consumer credit context, tration because “employers can calculate the

8
value of the dispute,” and if it is small they will by an equal loss for the other side. The exchange
decline and “kill the case in court.”48 is positive-sum because some of the gain comes
Maltby’s reasoning applies just as well to from cost savings when arbitration replaces lit-
consumers. There are consumers who have igation. Much of the extra costs would have
meritorious claims but who can get access to been paid to trial lawyers, so lawyers may lose
justice only if they have a predispute arbitra- from the exchange. But both the consumer and
tion agreement. Those claims involve too lit- the business benefit. And society as a whole
tle money to attract a lawyer but too much benefits. To the extent that the costs of adjudi-
money for small claims court. Without a pre- cation are reduced, disputes can be resolved
dispute arbitration agreement, the business- more efficiently, that is, fewer resources need to
defendant has an incentive to stonewall the be devoted to adjudication. Some bright young
consumer, knowing that the consumer has people who would have become trial lawyers
no practical recourse, no access to justice. enter other fields instead. Whatever those peo-
ple produce is a gain to society from the cost
Lower Prices, Efficient Production savings of arbitration.
Another argument for predispute arbitra- That gain is realized, however, only if pre-
tion agreements is that their enforcement dispute arbitration agreements are enforced.
lowers prices or, in the case of employees, Socially beneficial exchange will not occur Arbitration of con-
raises wages. nearly as often if it can occur only postdispute. sumer disputes
Arbitration of consumer disputes almost That is because, postdispute, both consumer almost certainly
certainly lowers prices.49 Arbitration reduces a and business know what the dispute is. If the
business’s costs, just like a technological dispute is a consumer’s meritorious low-dollar lowers prices.
advance or a better way of organizing an assem- claim, then the business will generally not
bly line. Ultimately, lower costs to business lead agree to arbitration. (While arbitration will
to lower prices to consumers. That is basic eco- cost the business something, litigation will
nomics, as well as plain common sense about cost the business nothing if the consumer can-
how markets work. Moreover, it does not not get a lawyer to take the case.) Conversely, if
assume that consumers understand, or even the dispute could lead to a big-dollar jury
read, the contracts they sign. Arbitration claus- award or class action then the consumers will
es give consumers lower prices regardless of generally not agree to arbitration. (Litigation’s
how many consumers are aware of the arbitra- higher expected award more than compen-
tion clause in their contracts. sates for litigation’s higher expected cost of
An assessment of predispute arbitration getting the award.) It is precisely the predis-
agreements, therefore, must not be limited to pute uncertainty about whether there will be a
a consideration of consumers with disputes. dispute and, if there is, what sort of dispute it
A proper assessment must consider con- will be that makes the deal implicit in the arbi-
sumers as a whole. Consumers without dis- tration agreement appeal to both sides.
putes are the main beneficiaries of the lower That explains why enforcement of predis-
prices caused by arbitration agreements. pute arbitration agreements benefits con-
Here is the bargain that seems to be implic- sumers as a class even though it would be
it in most consumer predispute arbitration against some particular consumers’ interests to
agreements: The consumer gets lower prices agree to arbitration once a dispute has arisen.
and, perhaps, better access to justice for meri- Under the implicit bargain noted above,
torious claims that are too small for a lawyer predispute arbitration agreements give con-
to litigate. In exchange, the business gets lower sumers as a class (1) lower prices and (2) extra
process costs and, perhaps, reduced exposure postdispute leverage in small but meritorious
to big-dollar jury awards and class actions. cases but deny consumers (3) extra postdis-
That exchange is not zero-sum. In other pute leverage in cases that could lead to a big-
words, the gain for one side is not entirely offset dollar jury award or class action. For con-

9
sumers in the aggregate, gaining 1 and 2 is Similarly, arbitration clauses in farmers’ pro-
surely worth giving up 3. If a large liability dis- duction agreements yield higher wages for farmers
pute has already arisen, however, the price that and give them increased access to justice for small
a particular consumer requires for giving up 3 but meritorious claims. Enforcement of farmers’
increases dramatically. In other words, it is arbitration agreements, therefore, benefits all farm-
entirely rational for a consumer to prefer, at ers except those few who are especially likely to have
the time of contracting, that an arbitration large liability claims against the dealer, processor, or
clause be in the contract even if, at the time of broker to whom they sell farm products.
a particular dispute, the consumer prefers that In sum, enforcement of arbitration agree-
an arbitration clause not be in the contract. ments benefits the vast majority of con-
sumers, auto dealers, employees, and farm-
Benefiting the Majority ers. Proposed legislation backed by trial
To put a finer point on it, the question of lawyers, purporting to help those groups,
predispute arbitration agreements may cut would have the opposite effect.
differently for different consumers. In the Regrettably, the pro-consumer benefits of
consumer credit context, if you are the sort of arbitration (lower prices and increased access to
consumer-borrower who is especially likely to justice for small but meritorious claims) have a
have a large liability dispute with your lender, lower profile than the large liability claims so
then you may be better off if predispute arbi- dear to trial lawyers. Well-organized and well-
tration agreements are unenforceable, as funded trial lawyers eagerly draw media atten-
under S. 192. By contrast, if you are the typi- tion to the drama of the large liability claim. By
cal consumer who is unlikely to have a dis- comparison, price reductions and wage increases
pute with your lender, then you are better off due to arbitration’s lower costs cannot be easily
under current law, which enforces predispute dramatized. Furthermore, benefits spread over
agreements, thereby encouraging lower inter- so many consumers and employees are individu-
est rates. Similarly, if you are the sort of con- ally too small to justify political action. So too
sumer who is likely to have a small but meri- with access to justice for small but meritorious
torious claim against your lender, then you claims. The many people who would benefit
are better off under current law. In sum, cur- from increased access to justice do not have a
rent law is better for all consumers except political organization as focused and effective as
those few who are especially likely to have the trial lawyers who seek to restrict access.51
large liability claims against lenders. Finally, there is individual freedom. Those
The logic is identical for auto dealers. Auto consumers, auto dealers, employees, farmers,
Current law franchise arbitration almost certainly lowers the and others who do not wish to enter into
cost of becoming a franchisee and increases fran- arbitration agreements are under no obliga-
makes arbitration chisees’ access to justice for small but meritori- tion to do so. Current law does not make
a matter of con- ous claims. Enforcement of franchise arbitration arbitration “mandatory”; it makes arbitra-
tractual choice. agreements, therefore, benefits all franchisees tion a matter of contractual choice. That is
except those few who are especially likely to have how a free society is supposed to work.
That is how a free large liability claims against franchisors.
society is sup- The same reasoning applies to employees.
posed to work. Employment arbitration almost certainly Legislation vs. Case Law
raises the wages employees receive 50 and
increases employees’ access to justice for There are cases in which arbitration agree-
small but meritorious claims. Thus, enforce- ments (whether by consumers, franchisees,
ment of employment arbitration agreements employees, farmers, or anyone else) should
benefits all employees except those few who not be enforced. For example, some agree-
are especially likely to have large liability ments are induced by misrepresentation,
claims against employers. duress, undue influence, and other circum-

10
stances that, under ordinary contract law, passed the House by voice vote in the last The Bono-Hatch
make any contract unenforceable. The FAA Congress and recently passed the Senate bill is the camel’s
already applies those contract law doctrines Judiciary Committee by voice vote with only Sen.
to arbitration agreements, so no further leg- Jeff Sessions (R-Ala.) requesting that the record nose under the
islation is needed on that score. reflect his opposition to passage. Because the tent flap.
Some advocates of the anti-arbitration bills Bono-Hatch bill covers only a narrow category of
are concerned about arbitration agreements contracts (franchise agreements between auto-
that require the consumer, farmer, employee, or mobile manufacturers and dealers), the negative
franchisee to use arbitrators allegedly sympa- consequences of enacting the bill may not seem
thetic to the opposing party. But arbitration severe. Indeed, the nearly unanimous Judiciary
awards are not enforced if “there was evident Committee included many senators ordinarily
partiality or corruption in the arbitrators.”52 wary of trial lawyers. That too might suggest that
Case law under that provision of the FAA the bill’s harm is minimal. A complacent atti-
requires arbitrators to disclose “any dealings tude, however, plays right into the hands of the
that might create an impression of possible trial lawyers’ political strategy.
bias” or “even an appearance of bias.”53 A few months ago, I received a call from the
Advocates of the anti-arbitration bills are also Washington, D.C., office of a major public
concerned about arbitration agreements that are relations firm. The firm was working with
unconscionable because they require the con- Trial Lawyers for Public Justice to find a law
sumer, farmer, employee, or franchisee to pay professor to join them in lobbying for the
high arbitration fees. But the FAA gives courts the Bono-Hatch bill. Think about that for a
tools to avoid enforcing unconscionable arbitra- moment. Why does Trial Lawyers for Public
tion clauses. A growing body of case law clarifies Justice, the leader of the trial lawyers’ fight
which arbitration agreements are uncon- against arbitration, believe that a Republican-
scionable.54 And the people who draft standard sponsored bill affecting only the narrow area
arbitration agreements seem to be responding to of auto dealer-manufacturer contracts is
that case law. In the dozen or so years that I have important enough to justify hiring a major
been studying arbitration cases, I have noticed a public relations firm for a full-scale lobbying
marked increase in the number of arbitration push? Is it because trial lawyers have aban-
agreements that eliminate or cap the fees required doned their usual personal injury and class
of the consumer or employee.55 action cases to specialize instead in disputes
Issues covered by ordinary contract law doc- between auto dealers and manufacturers?
trines, including unconscionability, necessarily Not likely. Trial lawyers have little at stake
require a case-by-case analysis. In short, they in disputes between auto dealers and manu-
should continue to be handled by case law made facturers. The Bono-Hatch bill is important
in the courts. They are not suited to the broad to activist trial lawyers, not on its own, but as
brush with which legislation necessarily paints. a means of enacting other anti-arbitration
That is an area in which the case law is evolving. bills—the bills they really care about, the bills
Further legislation would be counterproductive. that cover the consumer and employment
cases that enrich so many trial lawyers.
The Bono-Hatch bill is the camel’s nose
The Political Picture under the tent flap. If that bill passes, it will be
much harder, politically and logically, to argue
So far, only one of the anti-arbitration bills against anti-arbitration bills in the consumer
has advanced out of committee in this Congress. and employee contexts. How can “millionaire
That bill, the Motor Vehicle Franchise Contract auto dealers” deserve “protection from manda-
Arbitration Fairness Act, is sponsored by Rep. tory arbitration” while “grandma, the con-
Mary Bono (R-Calif.) in the House and Sen. sumer,” does not deserve it? Republican sup-
Orrin Hatch (R-Utah) in the Senate. The bill porters will be easy to caricature as beholden to

11
There is a lot at business interests, as insensitive to the ordinary 5. See, for example, Jacqueline M. Nolan-Haley,
Alternative Dispute Resolution, 2d ed. (St. Paul: West,
stake. And the trial voter, if they do not also support the anti-arbi- 2001), p. 144; and Stephen B. Goldberg et al.,
tration bills in the consumer, employment, and Dispute Resolution: Negotiation, Mediation, and Other
lawyers’ lobby farmer contexts. Processes, 3d ed. (New York: Aspen, 1999), p. 234.
knows it. The Bono-Hatch bill would create a loop-
6. Stephen J. Ware, “The Effects of Gilmer:
hole in the FAA, a statute that has stood for Empirical and Other Approaches to the Study of
freedom of contract for more than 75 years. Employment Arbitration,” Ohio State Journal on
Once created, that loophole could easily Dispute Resolution 16 (2001): 755–57.
expand. People who care about enforcing con-
7. U.S. General Accounting Office, Alternate Dispute
sumer, employee, and farmer arbitration Resolution: Employers’ Experiences with ADR in the
agreements should be troubled by the Bono- Workplace (Washington: GAO, 1997), p. 19; William
Hatch bill. Those who care about private-sec- M. Howard, “Mandatory Arbitration of
tor alternatives to lawyer-dominated court sys- Employment Discrimination Disputes” (Ph.D. diss.,
Arizona State University, 1995), pp. 124–42; and
tems should be troubled by the Bono-Hatch Lewis L. Maltby, “Private Justice: Employment
bill. Those who care about freedom of con- Arbitration and Civil Rights,” Columbia Human
tract should be troubled by the Bono-Hatch Rights Law Review 30 (1998): 46–55.
bill. There is a lot at stake. And the trial
8. Thomas A. Mauet and Warren D. Wolfson, Trial
lawyers’ lobby knows it. Evidence, 2d ed. (New York: Aspen. 1997), p. 275.

9. The material in this section previously


Notes appeared, in slightly different form, in Stephen J.
Ware, “Arbitration and Unconscionability after
Many of the arguments in this paper previously Doctor’s Associates, Inc. v. Casarotto,” Wake Forest
appeared in letters available at http://www.ftc.gov Law Review 31 (1996): 1002–6.
/bcp/altdisresolution/comments/ware.htm and in
Fairness and Voluntary Arbitration Act: Hearing 10. See, for example, Munson v. Straits of Dover S.S.
before the Subcommittee on Commercial and Co., 101 Fed. 926 (2d Cir. 1900); and Ian R.
Administrative Law of the Committee on the Macneil, American Arbitration Law (New York:
Judiciary, 106th Cong. (2000), http://commdocs. Oxford University Press, 1992), p. 20. See general-
house.gov/committees/judiciary/hju65871.000/hj ly Ian R. Macneil et al., Federal Arbitration Law
u65871_0.htm. (London: Little Brown, 1994), § 4.3.2.2.

1. Motor Vehicle Franchise Contract Arbitration 11. 9 U.S.C. §§ 1–16 (2000). The statute was orig-
Fairness Act of 2001, S. 1140 and H.R. 1296, inally named the United States Arbitration Act
107th Cong. (2001). and was renamed the Federal Arbitration Act in
1947. Act of July 30, 1947, ch. 392, 61 Stat. 669.
2. Committee for Economic Development, There is debate about whether the FAA was
“Breaking the Litigation Habit: Economic enacted pursuant to Congress’s power to regulate
Incentives for Legal Reform,” 2000, p. 5, www.ced. interstate commerce (Article I, sec. 8, of the
org/docs/report/report_legal.pdf. Constitution) or its power to establish, and make
procedural rules for, federal courts (Article III of
3. See, for example, James S. Kakalik et al., the Constitution). Stephen J. Ware, Alternative
“Discovery Management: Further Analysis of the Dispute Resolution (St. Paul: West, 2001), §§
Civil Justice Reform Act Evaluation Data,” RAND 2.6–2.8. In Southland Corp. v. Keating, 465 U.S. 1
Corporation, 1998, Table 2.2, pp. 28–29: Judith A. (1984), that issue split the Supreme Court
McKenna and Elizabeth C. Wiggins, “Empirical between a majority finding that the FAA was
Research on Civil Discovery,” Boston College Law enacted pursuant to the Commerce Clause and a
Review 39 (1998): 796–99; and J. Stratton Shartel, dissent finding that it was enacted pursuant to
“More Female Litigators Relegated to Non-Trial Article III.
Work, Survey Finds,” Inside Litigation 9 (February In concluding that the FAA was enacted pursuant
1995): 12. to the Commerce Clause, the Supreme Court tied the
reach of the FAA to the reach of the Commerce
4. Michael Heise, “Justice Delayed? An Empirical Clause. In other words, an arbitration agreement is
Analysis of Civil Case Disposition Time,” Case governed by the FAA only when it is sufficiently con-
Western Reserve Law Review 50 (2000): Table 4, pp. nected to interstate commerce to meet the constitu-
834–35. tional standard. Allied-Bruce Terminix Cos., Inc. v.

12
Dobson, 513 U.S. 265 (1995). There are strong argu- in recent decades is the overriding of contract law by
ments that the Court has interpreted the Commerce tort law. See, for example, Peter W. Huber, Liability: The
Clause overly broadly. See, for example, Richard A. Legal Revolution and Its Consequences (New York: Basic
Epstein, “Constitutional Faith and the Commerce Books, 1988); and Michael I. Krauss, “Restoring the
Clause,” Notre Dame Law Review 71 (1996): 167; and Boundary: Tort Law and the Right to Contract,” Cato
Glenn Harlan Reynolds, “Kids, Guns, and the Institute Policy Analysis no. 347, June 3, 1999.
Commerce Clause: Is the Court Ready for
Constitutional Government?” Cato Institute Policy 24. John Vail, “Defeating Mandatory Arbitration
Analysis no. 216, October 10, 1994. Those arguments Clauses,” Trial, January 2000, www.atlanet.org/
are beyond the scope of this paper. They apply to the homepage/triaj00.htm.
FAA no differently than they apply to countless other
federal statutes whose constitutional authorization 25. F. Paul Bland Jr. et al., Consumer Arbitration
the Court finds in the Commerce Clause. Agreements: Enforceability and other Topics
Some scholars have suggested a reading of the (Washington: Trial Lawyers for Public Justice, 2001).
Fourteenth Amendment’s Privileges or Immunities
Clause that would provide constitutional authority 26. See www.tlpj.org/caa.htm.
for the FAA and other statutes embracing freedom
of contract. See Kimberly C. Shankman and Roger 27. This is one of the central insights of public
Pilon, “Reviving the Privileges or Immunities Clause choice theory. See, for example, Daniel A. Farber
to Redress the Balance among States, Individuals, and Philip P. Frickey, Law and Public Choice
and the Federal Government,” Cato Institute Policy (Chicago: University of Chicago Press, 1991); and
Analysis no. 326, November 23, 1998. Fred S. McChesney, Money for Nothing: Politicians,
Rent Extraction and Political Extortion (Cambridge,
12. 9 U.S.C. § 2 (2000). Mass.: Harvard University Press, 1997).

13. For a defense of the contractual approach, see 28. See, for example, Richard L. Hasen, “‘High
Stephen J. Ware, “Consumer Arbitration as Court Wrongly Elected’: A Public Choice Model
Exceptional Consumer Law (With a Contractualist of Judging and Its Implications for the Voting
Reply to Carrington & Haagen),” McGeorge Law Rights Act,” North Carolina Law Review 75 (1997):
Review 29 (1998): 195. 1308–34.

14. Volt Info. Sciences, Inc. v. Board of Trustees, 489 29. See, for example, Stephen J. Ware, “Money,
U.S. 468, 478 (1989)(citations omitted). Politics and Judicial Decisions: A Case Study of
Arbitration Law in Alabama,” Journal of Law &
15. U.S. Constitution, Article VI, clause 2. See Politics 15 (1999): 645; and Stephen J. Ware, “Truce
Ware, Alternative Dispute Resolution, §§ 2.9–2.14. Possible in GOP-Dominated High Court,”
Birmingham News, December 3, 2000, p. 1C.
16. See Ware, “Arbitration and Unconscionability,”
pp. 1004–5. 30. Stephen J. Ware, “The Alabama Story:
Arbitration Shows Law’s Connection to Politics,
17. Ibid., p. 1005. Culture,” Dispute Resolution Magazine, Summer
2001, p. 24.
18. Mastrobuono v. Shearson Lehman Hutton, Inc.,
514 U.S. 52, 58 (1995). 31. Ibid.

19. See, for example, Gilmer v. Interstate/Johnson 32. Green Tree Financial at 79 (consumer); and
Lane Corp., 500 U.S. 20 (1991); Allied-Bruce Circuit City Stores, Inc. v. Adams, 121 S.Ct. 1302
Terminix Cos., Inc. v. Dobson, 513 U.S. 265 (1995); (2001)(employment).
Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681
(1996); and Green Tree Financial Corp. v. Randolph, 33. 2002 WL 46763 (U.S. no. 99-1823 January 15,
531 U.S. 79 (2000). 2002).

20. Volt at 479. 34. Securing a Future for Independent Agriculture


Act of 2001, S. 20, 107th Cong., § 128 (2001); Civil
21. Gilmer at 26 (quoting Mitsubishi Motors Corp. v. Rights Procedures Protection Act of 2001, S. 163,
Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 107th Cong., § 9 (2001); Civil Rights Procedures
(1985)). Protection Act of 2001, H.R. 1489, 107th Cong., § 9
(2001); Consumer Credit Fair Dispute Resolution
22. Mastrobuono at 57 (quoting Volt at 476). Act of 2001, S. 192, 107th Cong., § 2 (2001); Motor
Vehicle Franchise Contract Arbitration Fairness Act
23. Much of what has gone wrong in our court system of 2001, S. 1140, 107th Cong., § 17 (2001); Motor

13
Vehicle Franchise Contract Arbitration Fairness Act Haagen, “Contract and Jurisdiction,” Supreme Court
of 2001, H.R. 1296, 107th Cong., § 17 (2001); Review (1996): 331; and comments of Jean Braucher
Predatory Lending Consumer Protection Act of and Charles Knapp, in “Common Sense and
2001, H.R. 1051, 107th Cong., § 2 (2001); Truth in Contracts Symposium: The Gateway Thread,” Touro
Savings Enhancement Act of 2001, H.R. 1057, 107th Law Review 16 (2000): 1167, 1173.
Cong., § 2 (2001); American Homebuyers Protection
Act, H.R. 2053, 107th Cong., § 2 (2001); Preservation 48. Quoted in Justin Kelly, “Bill Would Bar
of Civil Rights Protections Act of 2001, H.R. 2282, Pre-Dispute Arbitration for Civil Rights Claims,” April
107th Cong., § 3 (2001); and Save Our Homes Act, 10, 2001, www.adrworld.com/opendocument.asp?
H.R. 2531, 107th Cong., § 2 (2001). Doc=mG3XhW8Oq4&printerfriendly=1&limit=300
&code=p8viHA2D.
35. Vehicle Franchise Contract Arbitration Fairness
Act of 2000, H.R. 534, 106th Cong. (2000). 49. Stephen J. Ware, “Paying the Price of Process:
Judicial Regulation of Consumer Arbitration
36. Maltby, “Private Justice,” pp. 46–55; and Agreements,” Journal of Dispute Resolution (2001): 90–93.
Howard, “Mandatory Arbitration of Employment
Discrimination Disputes,” pp. 124–42. 50. Ware, “The Effects of Gilmer,” p. 735.

37. Maltby, “Private Justice,” pp. 48–49. 51. See, for example, Tom Gordon, “Small-Claims
Reform Defeated,” Legal Reformer, Spring 2001, p. 1,
38. Ware, “The Effects of Gilmer,” pp. 755–57. www.halt.org/News/page.cfm?page=tlrpg1.

39. See, for example, Lewis Maltby, “Employment 52. 9 U.S.C. § 10(a)(2) (2000).
Arbitration: Is It Really Second Class Justice?”
Dispute Resolution Magazine, Fall 1999, p. 23. 53. Commonwealth Coatings Corp. v. Continental
Casualty Co., 393 U.S. 145, 149 (1968).
40. Gillian Hadfield, “The Price of Law: How the
Market for Lawyers Distorts the Justice System,” 54. Ware, Alternative Dispute Resolution, § 2.25(a).
Michigan Law Review 98 (2000): 957. Because there is a wide variety of views on the
proper scope of the unconscionability doctrine—
41. Joseph M. Matthews, “Is It Possible to Try a see, for example, Richard A. Epstein, “Uncon-
$100,000 Business Case to a Jury without Bankrupt- scionability: A Critical Reappraisal,” Journal of Law
ing Yourself and Your Client?” Florida Bar Journal 71 & Economics 18 (1975): 293—there is a corre-
(1997): 65. spondingly wide variety of views about which
arbitration clauses should be held uncon-
42. Maltby, “Private Justice,” pp. 57–58. scionable. The proper scope of the uncon-
scionability doctrine is beyond the range of this
43. Jill Schachner Chanen, “Pumping Up Small paper, which merely notes that the FAA prevents
Claims: Reformers Seek $20K Court Limits—With courts from applying the doctrine more aggres-
No Lawyers,” A.B.A. Journal 84 (December 1998): 18. sively against arbitration agreements than against
contracts generally. Ware, Alternative Dispute
44. HALT is an acronym for Help Abolish Legal Resolution, § 2.25(b). Whatever the proper scope of
Tyranny. the unconscionability doctrine, the doctrine can-
not be applied more aggressively in the arbitra-
45. Quoted in Chanen, p. 18. tion context.
46. See, for example, Vail, pp. 70–71. 55. See, for example, Lloyd v. MBNA America Bank,
N.A., 2001 WL 194300 (D. Del. No. Civ. A. 00-
47. See, for example, Paul D. Carrington and Paul 109-SLR February 22, 2001).

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