Originally from:
Journal of American Arbitration (JAA) - Vol. 2, No. 1
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ARTICLES
Consumer Arbitration:
The Destruction of the Common Law
By Richard M. Alderman
I. INTRODUCTION
From a contemporary discussion of civil justice and tort reform, to a
best selling biography of a founding father, praise for the American court
system and our common law tradition is not difficult to obtain. Recently,
consumers have benefited greatly from our Anglo-American legal
culture. The American civil justice system has spawned judicial reform
dealing with everything from a wide range of product safety issues,3 to
the establishment of premises liability, and the creation of performance
standards in service contracts. Courts have become increasingly
receptive to claims by consumers of overreaching terms in industry
practices, and have liberally construed our many consumer protection
laws to provide increased protection from false, misleading, and
deceptive acts.4
The recent movement to impose mandatory predispute arbitration5
in an increasingly large number of consumer contracts, however,
threatens to eliminate this “fundamental” branch of government,
substituting a system of private, often secret, justice, not bound by
precedent and unable to create it.6 In one commentator’s opinion, the
“threat” posed by the privatization of law may already be real.7 In a
recent article discussing the effect of arbitration on the development of
contract law, Professor Charles L. Knapp noted the diminishing number
of decisions discussing contract issues.8 He argued, “Far and away the
most pervasive contract-related issue litigated during this period, [2002],
has been this: Will the court enforce an arbitration contract in the parties’
written agreement?”9 This Essay will consider how consumers’ rights
might be impacted by the gradual elimination of the common law, which
will inevitably result from widespread use of predispute mandatory
arbitration.10
Richard M. Alderman, Dwight Olds Chair in Law and Executive Director of the Center For Consumer Law,
University of Houston Law Center. LL.M 1973, University of Virginia; J.D. 1971, Syracuse
University; B.A. 1968, Tulane University.
