Where Can Unconscionability Take Arbitration - Why the Fifth Circuit's Conscience Was Only Partially Shocked

Authors

Mary Jane Groff

Abstract

As a means of countering the pro-arbitration stance taken by the Supreme Court, a number of lower courts have chosen to police the fairness of arbitration clauses in contracts by using the doctrine of unconscionability. The Supreme Court has authorized the use of generally applicable contract law principles including unconscionability-to invalidate arbitration agreements. Unconscionability provides courts with a flexible tool for coming to the rescue of parties who, if the court is sufficiently shocked, find themselves entangled in unfair arbitration clauses. This Note addresses the Fifth Circuit's use of unconscionability in respect to a particularly one-sided arbitration clause, and examines the court's failure to utilize unconscionability regarding other aspects of the contracts' arbitration clauses.

Recommended Citation

Mary Jane Groff, Where Can Unconscionability Take Arbitration - Why the Fifth Circuit's Conscience Was Only Partially Shocked, 2005 J. Disp. Resol. (2005)
Available at: https://scholarship.law.missouri.edu/jdr/vol2005/iss1/9