An Unconscionable Application of the Unconscionability Doctrine: How the California Courts Are Circumventing the Federal Arbitration Act

Authors

Stephen A. Broome

Abstract

This Article examines the California courts' unconscionability jurisprudence, highlighting the disparate application of unconscionability doctrine in cases involving arbitration agreements as contrasted with cases involving "ordinary" contracts. The article undertakes an empirical analysis of California cases applying unconscionability doctrine and finds that unconscionability challenges before the California appellate courts succeed with far greater frequency when the contractual provision at issue is an arbitration agreement. The article concludes that California's unconscionability jurisprudence violates the basic mandate of the FAA that arbitration agreements be placed on equal footing with ordinary contractual provisions.

Recommended Citation

Stephen A. Broome, An Unconscionable Application of the Unconscionability Doctrine: How the California Courts Are Circumventing the Federal Arbitration Act, 3 Hastings Bus. L.J. 39 (2006).
Available at: https://repository.uclawsf.edu/hastings_business_law_journal/vol3/iss1/2