Abstract
In the one-hundred-year period since the enactment of the Federal Arbitration Act of 1925 (the Act), arbitration in the U.S. has become a battlefield embroiled in a multitude of contract law doctrines and competing arbitration jurisprudence concerning what rights can be contracted away. This battlefield has become particularly grisly with regards to the increased use of arbitration clauses in contracts with adhesive qualities between business entities and consumers. This Article seeks to confront and lay the foundations for resolving a concern raised by many arbitration scholars: scholars who argue that the use of arbitration clauses in contracts of adhesion is directly correlated with a loss of access to justice by the consumers subject to such clauses. Such scholars contend that consumers are less likely to exercise a right to arbitrate than they would be to seek out “their day in court” before a judge. These scholars further assert that the lack of transparency that marks arbitration reduces societal observation and feedback necessary to continuously improve the justice dispensed by the arbitrations that do take place. They conclude that the general treatment of consumer small-value claims (those that may be so small as to be considered almost frivolous) provides cover for small injustices perpetrated by corporate entities that, in the aggregate, result in incalculable societal harms and illicit corporate gains. These scholars often conclude that the dis-assemblage of the current arbitration system through formal or informal means is the solution that will increase access to justice for consumers.
This Article engages with the concerns of said scholars yet contends that the procedures currently in place for determining and exercising arbitration rights are missing a procedural step that would have the potential to encourage consumers to more adeptly exercise their arbitration rights and access justice within the current jurisprudential system. That procedural step is tied to the concept of consent, embedded in contract law, and, ultimately, is an expression of the freedom to contract that the existing jurisprudential landscape seeks to protect. This Author proposes that the timing of decision-making regarding the nitty-gritty of the arbitration processes navigated by a consumer may make all the difference for 1) how individual consumers seek out justice via arbitration and 2) how such individual arbitrations may effect greater societal engagement with arbitration, leading to 3) greater accountability for perpetrators of civil economic injustices considered “frivolous” in isolation yet potentially catastrophic when taken in aggregate. This Author identifies the stage of a dispute just before arbitration takes place as the appropriate time to obtain what this Author terms “True Consent”—consent that is knowledgeable because it is obtained at the point in time when the consumer is most invested in understanding the consequences of the procedural choices at issue. In other words, this Author seeks to pinpoint the moment when, if ever, the consumer is most likely to engage with the arbitration process and exercise a conscious choice in how an arbitration will proceed, and then advocates for legislation to empower that choice.
Recommended Citation
Charity J. Fort, Arbitrary Consent to Arbitration, 82 Wash. & Lee L. Rev. 1887 (2026).Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol82/iss5/8