Teaching the Business Law and Ethics of Arbitration After Concepcion

For a long time, courts have considered whether to enforce one-sided arbitration clauses on the grounds of unconscionability. Unconscionability is a legal ground for refusing to enforce a contract that seems to be too one-sided, or one that is the result of unfair bargaining. Recent Supreme Court ca...

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Bibliographic Details
Published in:The Journal of legal studies education 2017, Vol.34 (1), p.63-88
Main Author: Thompson, Dale B.
Format: Article
Language:English
Subjects:
Arbitration
Business Administration Education
Conflict Resolution
Contracts
Court Litigation
Ethics
Labor Legislation
Legal Education (Professions)
Risk
Teaching Methods
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Summary:For a long time, courts have considered whether to enforce one-sided arbitration clauses on the grounds of unconscionability. Unconscionability is a legal ground for refusing to enforce a contract that seems to be too one-sided, or one that is the result of unfair bargaining. Recent Supreme Court cases in 2011 and 2013--"AT&T Mobility v. Concepcion" and "American Express v. Italian Colors Restaurant"--however, present challenges to the applicability of unconscionability in the context of arbitration. This article begins by reviewing how arbitration has been taught in legal environment courses before the recent Supreme Court decisions. The next section discusses the "Concepcion" and "Italian Colors" cases, and analyzes how they impact claims of unconscionability when an employer seeks to enforce an arbitration provision. Lastly, lessons are suggested for teaching arbitration and alternative dispute resolution after "Concepcion."
ISSN:0896-5811
1744-1722
DOI:10.1111/jlse.12057