By: Amy J. Schmitz
The growth of consumer arbitration in the United States raises
important questions regarding the fairness of form arbitration
provisions in differing contexts and relationships. This
Article therefore plants the seed for a larger exploration of the
importance of “contracting culture” in creation and enforcement of
these provisions. Furthermore, it proposes a continuum
ranging from “intra to extra communal” contracting cultures as a
means for balancing the fairness and efficiency of form provisions
and uses commercial construction and consumer contexts as examples
of cultures that often lean toward opposite ends of the
continuum. In this way, the Article questions current
formalistic enforcement of form arbitration provisions and invites
consideration of relations, understandings, and values when
applying tools such as unconscionability to police the fairness of
these provisions. Consideration of contracting culture opens
awareness of relational contexts and reveals that economic and
resource imbalances should not drive courts’ application of
contract tools.