Blowing the Whistle on Mandatory Arbitration: Unconscionability as a Signaling Device

This Article is concerned with two areas of American law and their intersection. One is the legal doctrine - which exists in both common law and statutory form - known as "unconscionability." The other is the form of dispute resolution called "arbitration." These would on the face of it seem to be unrelated concepts; unconscionability is generally thought of as part of the law contract, while arbitration is essentially a type of procedure, one a number of mechanisms for settling disputes between private parties. By an accident of legal history, however, the two notions appear to be in the process of a slow-motion head-on collision. This article will attempt to look more closely at the present state of affairs and to make some observation about the effect that each of these bodies of law may be having on the other as their paths converge.