Carolyn Dessin of Akron has written Arbitrability and Vulnerability, 21 Temple Political & Civil Rights Law Review, 349 (2012). Here's the abstract:Arbitration is cool. Everybody's doing it. In the eighty-five years since the passage of the Federal Arbitration Act, that seems to be the prevailing sentiment. Recent decades have seen the meteoric rise of arbitration as a form of alternative dispute resolution. Arbitration is widely regarded as a less expensive, more expeditious alternative to litigation.
Courts frequently note that federal policy clearly favors arbitration. No judicial enthusiasm for arbitration seems more complete than that evidenced in the jurisprudence of the United States Supreme Court.
Along with the rise of arbitration, however, there has also been a rise in the amount of criticism of arbitration. Some suggest that nothing short of a complete overhaul of the Federal Arbitration Act will correct problems that have arisen in the arbitration context.
One of the main focuses of the criticism has been against mandatory binding pre-dispute arbitration in the consumer context. The United States has condoned this species of arbitration in an unparalled fashion, and some suggest that our country has gone too far. One of the major concerns in this area is that it is unlikely that a consumer can knowingly agree to arbitrate claims that have not yet arisen.
This Article focuses on mandatory pre-dispute arbitration agreements in the context of a situation involving a vulnerable party. As the
discussion will illustrate, there is no precise definition of vulnerability. Although most of the cases discussed herein involve older vulnerable adults, the concerns in this area frequently arise in other contexts as well. Thus, the author suggests that the discomfort exhibited by courts in dealing with these cases may suggest a broader discomfort with mandatory pre-dispute arbitration agreements in the consumer context.