Open Access. Powered by Scholars. Published by Universities.®
- File Type
Articles 1 - 5 of 5
Full-Text Articles in Law
Proposed Deal Between Sam Bradford And Eagles' Fans, Stephen E. Friedman
Proposed Deal Between Sam Bradford And Eagles' Fans, Stephen E. Friedman
Stephen E Friedman
No abstract provided.
The Lost Controversy Limitation Of The Federal Arbitration Act, Stephen Friedman
The Lost Controversy Limitation Of The Federal Arbitration Act, Stephen Friedman
Stephen E Friedman
Despite Congress’s deliberate limitation of the Federal Arbitration Act (the “FAA”) to disputes arising out of a contract containing an arbitration provision, broader arbitration provisions are ubiquitous. Courts invariably enforce such provisions under the FAA. Notably, the Supreme Court has almost entirely disregarded the relevant language of the FAA and has ignored the conflict between the FAA’s narrow language and the broad language typically found in arbitration provisions. In so doing, the Court has quietly and inappropriately elevated the language of private agreements above the language of the statute. In this article, Professor Friedman first identifies the origin of the …
A Pro-Congress Approach To Arbitration And Unconscionability, Stephen Friedman
A Pro-Congress Approach To Arbitration And Unconscionability, Stephen Friedman
Stephen E Friedman
This Essay endeavors to resolve a current controversy involving the application of the unconscionability doctrine to arbitration agreements. The pro-arbitration policies of the Federal Arbitration Act (FAA) and the anti-arbitration instincts of the unconscionability doctrine are difficult to reconcile. Instead of clarity in this area of law, we have a series of hints and clues, often contradictory, from the Supreme Court. Although Professor David Horton and I share a desire to clarify this area of the law, we have nearly opposite views about how this should be accomplished. This Essay sets forth my position and also responds to Unconscionability Wars, …
Arbitration Provisions: Little Darlings And Little Monsters, Stephen Friedman
Arbitration Provisions: Little Darlings And Little Monsters, Stephen Friedman
Stephen E Friedman
This Article takes a new approach to resolving the growing tension between the Federal Arbitration Act (FAA) and the unconscionability doctrine. While arbitration provisions are favored under the FAA, they are viewed far more skeptically by courts applying unconscionability to refuse enforcement of one-sided arbitration provisions. This tension, which has increased dramatically in recent years, represents a major fault line in contract law. Jurisprudence and commentary on this issue have assumed that courts have the authority to apply the unconscionability doctrine to arbitration provisions. This Article refutes that assumption, taking the position that Congress, in passing the FAA, removed from …
Giving Unconscionability More Muscle: Attorney’S Fees As A Remedy For Contractual Overreaching, Stephen E. Friedman
Giving Unconscionability More Muscle: Attorney’S Fees As A Remedy For Contractual Overreaching, Stephen E. Friedman
Stephen E Friedman
This Article seeks to broaden the conversation about unconscionability. While most of the discussion has focused on the appropriate standard for determining unconscionability, this Article focuses on the appropriate remedy to be imposed when unconscionability is found. The current remedy for unconscionability is non-enforcement or limited enforcement of unconscionable contracts or contract terms. This remedy is inadequate and seriously undermines unconscionability’s effectiveness as a tool for policing against contractual overreaching. The Article proposes that courts be given discretion to award attorney’s fees to consumers who successfully establish the unconscionability of a standard form contract. Such a remedy would enable unconscionability …