The New Judicial Hostility to Arbitration: Unconscionability and Agreements to Arbitrate


Many, many contract disputes are now being settled by arbitration instead of litigation. The United States Supreme Court strongly favors the enforcement of agreements to arbitrate that fall within the Federal Arbitration Act. This Article shows that many lower courts, however, are using the contract unconscionability doctrine to refuse enforcement of agreements to arbitrate. It argues (1) that many such lower court decisions should be pre-empted by the Federal Arbitration Act, and (2) that lower courts should give due weight to the federal policy favoring arbitration when deciding whether to enforce an agreement to arbitrate.


Consumer Protection Law | Contracts | Dispute Resolution and Arbitration | Judges | Labor and Employment Law

Date of this Version

May 2006