3 Comments

Prohibiting or otherwise limiting the use of pre-dispute arbitration provisions based on unequal bargaining power alone would do more harm to individuals in the aggregate by “forcing” them to face greater burdens, costs, and delay in seeking access to justice and experience worse outcomes—in essence, “forced litigation.”

That’s a ridiculous statement. Even if you take the article’s assertion that post-dispute arbitration doesn’t work as true, in most cases there’s still the possibility of making pre-dispute arbitration optional instead of mandatory. Have them check a box that says whether they want it; that will work in most situations.

It’s an electric car, so technically not a gas pedal..

I like David’s solution.

I found Schwartz and Appel’s article interesting, but the “Myth’s” were not myths, they are popular opinions. They countered opinion with opinion. Let me fix it for them.
Opinion #1: “Pre-dispute arbitration agreements are categorically unfair because they are entered into by consumers, employees, or other individuals with unequal bargaining power.” (It’s easy for the big guy to steamroll the little guy.)
Response #1: That’s your problem. If you did not want to deal with a corporation’s lawyers, you should have searched for a home-grown solution product. We assume that the market is flooded with effectively identical products offered without the legal strings attached and that said differences are obvious.
Opinion #2: “Pre-dispute arbitration provisions are unsound because they are often written in “legalese” and “buried” in legal agreements.”
Response #2: We are lawyers and we understand legalese. The legalese may gone on for pages and pages, but you should suck it up. Lawyers are smarter than you, anyway.
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