Richard M. Alderman (University of Houston Law Center) has posted Why We Really Need the Arbitration Fairness Act: It's All About Separation of Powers (Journal of Consumer & Commercial Law, Vol. 12, p. 151, 2009) on SSRN. Here is the abstract:
Congress is currently considering the Arbitration Fairness Act, which prohibits pre-dispute mandatory arbitration clauses in consumer contracts. This article reviews the use of consumer arbitration to demonstrate that in consumer cases arbitration is used to eliminate consumer disputes, not to provide an efficient alternative forum. More importantly, it is suggested that the widespread, in fact near universal, use of consumer arbitration conflicts with the core American belief in separation of powers. Through arbitration, business can effectively divorce itself from the civil justice system, eliminating the judicial branch from consumer disputes. The only way to reverse this dangerous trend is through the prohibition contained in the Arbitration Fairness Act.
