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The Pendulum Swings Again, Richard C. Reuben

Faculty Publications

Mandatory arbitration provisions in contracts of adhesion expose the difficult tension between individual contractual rights and collective contractual needs. The question is where we draw the line. The law of adhesion contracts has traditionally used the doctrine of unconscionability to draw that line, and cases like Graham v Scissor-Tail more precisely instruct us to draw it at the reasonable expectations of the parties. By presumptively refusing to enforce cram-down arbitration provisions for consumer claims, absent evidence of knowing and voluntary waiver, we will restore those reasonable expectations, and, in the words of the case law, ensure minimum levels of integrity …

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