Note – Conscionable Judging: A Case Study of California Courts’ Grapple with Challenges to Mandatory Arbitration Agreements
Volume 62, Issue 4, 1065-1092
This Note addresses a study of California state court decisions concerning the invalidation of contracts on the ground that the contract is unconscionable. Cases in this area have proliferated rapidly as a consequence of the frequent and highly successful use of the unconscionability defense as a weapon to attack petitions to compel mandatory arbitration of disputes. A review of four years of unconscionability-related decisions in the California courts of appeal leads to certain conclusions, which generally support a hypothesis that while judges form definite personal opinions as to the legality of typical mandatory arbitration agreements, those opinions are only weakly related to factors, such as political partisanship or workload, which might explain strategic behavior by judges. It concludes by discussing the future of unconscionability challenges in the arbitration arena in light of both recent U.S. Supreme Court cases that may substantially influence those challenges, and the current legislative environment.